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RS2477 Legal Issues

This page will be updated as legal decisions arise that affect the RS 2477 issue.

Recent Federal Court Decision on R.S. 2477 Clarifies Key Terms

On February 13, 2004, US District Court Judge Tena Campbell of Utah reaffirmed a 2001 decision that the Bureau of Land Management (BLM) had properly denied the existence of R.S. 2477 rights-of-way where the routes involved were little-used jeep tracks in the desert. A summary of the key holdings follows.

For an R.S. 2477 right-of-way (ROW) to be valid, a highway must have been constructed. The Bureau of Land Management (BLM) has quite properly interpreted the term "construction" in R.S. 2477 to require some form of purposeful, physical building or improving.

Some form of mechanical construction must have occurred to construct or improve the highway. A highway right-of-way cannot be established by haphazard, unintentional, or incomplete actions. For example, the mere passage of vehicles across the land, in the absence of any other evidence, is not sufficient to meet the construction criteria of R.S. 2477 and to establish that a highway right-of-way was granted.

See Southern Utah Wilderness Alliance v. Bureau of Land Management, 147 F. Supp. 2nd 1130, 1138 (D. Utah 2001) (hereafter SUWA v. BLM) (supporting BLM's rejection of multiple counties' assertions that continued use amounted to construction). Some counties have argued that foot and horse traffic can "construct" a highway, an argument rejected by Judge Campbell's decision.

For R.S. 2477 to apply, the route constructed must be a "highway." BLM has previously concluded that:

The claimed highway right-of-way must be public in nature and must have served as a highway when the underlying public lands were available for R.S. 2477 purposes. It is unlikely that a route used by a single entity or used only a few times would qualify as a highway, since the route [must have] open public nature and uses. Similarly, a highway connects the public with identifiable destinations or places.

See SUWA v. BLM, 147 F. Supp.2d at 1143 (quoting BLM R.S. 2477 determinations). The court found this definition "both reasonable and persuasive." Id. Some counties have concluded that an R.S. 2477 right-of-way could be established without proving the route to be a highway, something Judge Campbell's decision rejects.

Those pressing R.S. 2477 claims bear the burden of proving their claims are valid. R.S. 2477 claimants, as "parties seeking to enforce rights-of-way against the federal government, therefore bear the burden of proving that their claimed rights-of-way are valid under R.S. 2477." SUWA v. BLM, 147 F. Supp. 2d at 1136. Some counties have asserted that the burden cannot be placed on them to prove anything before they take action to maintain their claims, an approach Judge Campbell rejected.

For a copy of Judge Campbell's February 13, 2004 opinion click here. For a copy of the June 25, 2001 opinion click here.

General Accounting Office (GAO) Report Finds Utah-Interior Department
Memorandum of Understanding (MOU) on R.S. 2477 to Be Illegal

The GAO report, released on February 6th, 2004, finds that the Department of the Interior (DOI) acted illegally by entering into an agreement with the State of Utah in 2003 that prescribes a process for recognizing RS 2477 claims.

Background

In 1996, Congress made clear that it wanted to make the decisions on the thorny issue of how future R.S. 2477 policy would be made. Specifically, Congress barred federal agencies from adopting rules on the issue. The Congressional prohibition states that:

"No final rule or regulation of any agency of the Federal Government pertaining to the recognition, management, or validity of a right-of-way pursuant to [R.S. 2477] shall take effect unless expressly authorized by an Act of Congress subsequent to the dare of enactment of this Act."

At Issue

On April 9th, 2003 the Interior Department and Utah signed a secretly-negotiated agreement which stated that DOI will implement a "State and County Road Acknowledgment Process" to "acknowledge the existence of certain R.S. 2477 rights-of-way on [BLM] land with in the State of Utah." The February 6th GAO report concludes that this MOU was a "final rule or regulation" subject to the 1996 prohibition. Specifically, the GAO found:

"…that the Utah MOU is a final rule or regulation prohibited from taking effect by [the 1996 prohibition]. It is a substantive rule under the Administrative Procedures Act and pertains to the recognition, management, and validity of R.S. 2477 rights-of-way. The [1996] prohibition stemmed from congressional intent to prevent implementation of just such processes and standards."

The State of Colorado and Moffat County have expressed interest in pursuing a MOU with DOI, one that - even more explicitly than the agreement with the State of Utah - would set standards for how R.S. 2477 claims should be granted. These entities should carefully weigh the GAO's findings before continuing to pursue an MOU, an agreement that GAO concluded will face an uphill fight in a court of law.

A copy of the GAO report can be viewed here.