Written by: Maegan Stump
The first of this series can be found here.
As a recap, Revised Statute 2477 (“R.S. 2477”) was originally enacted in 1866, but the federal statute was later annulled by the Federal Land Management and Policy Act.[1] R.S. 2477 allowed implied easements, primarily on roads, to be created over public and private land.[2] Challenges involving implied easements that were created while R.S. 2477 was in effect continue to afflict the western United States.[3] Environmental groups like Southern Utah Wilderness Alliance (“SUWA”) have attempted to challenge R.S. 2477 claims in order to protect public land and proposed wilderness areas where access to a road that has not existed in decades would otherwise alter the landscape and any future land use.[4]
Unfortunately for SUWA, in Kane County, Utah, where there are numerous R.S. 2477 claims, the District Court Judge denied the group’s motion to intervene in June of 2022.[5] For years, SUWA continued to intervene or attempt to intervene in cases where, “the state of Utah and Kane County assert title to certain roads that cross federal land.”[6] SUWA and advocacy groups like SUWA delayed litigation on this topic for years in pursuit of land protection, but the District Court Judge’s decision in 2022 will prevent other groups from intervening through litigation.[7] It will be interesting to see if other courts throughout the western United States will follow this trend of preventing environmental groups from intervening in R.S. 2477 claims and what this will mean for land protection.
While R.S. 2477 claims have been prominent in states such as Utah, other states such as Alaska with “little road access” have also made important decisions about access to land in challenges under the statute.[8] In the Alaska Supreme Court’s decision of Ahtna, Inc. v. State of Alaska, Department of Natural Resources and Department of Transportation & Public Facilities, the Court ruled to allow citizens to publicly access Klutina Lake and Klutina River.[9] In the case, an Alaskan Corporation called Ahtna, Inc. had attempted to assert their original ownership and to “negate the State’s claim to the RS 2477” on the road that travelled to access the water sources even though Alaskan citizens had used the road to access the Lake and River for over a century.[10] A previous court decision had, “limited the use of the road to ingress and egress only,” but the Alaskan Supreme Court’s decision in September 2022 eliminated this interpretation and re-opened the road to public use.[11]
R.S. 2477 claims range from asserting private ownership to protecting public access.[12] Instead of claims by private citizens to roads that have not been used in many years, in Ahtna the use of the R.S. 2477 challenge was by Alaskans who regularly used the road for access to recreation like fishing and hunting.[13] It will continue to be interesting to watch how R.S. 2477 claims develop and alter the western United States landscape, both politically and geographically through land use. As seen in both the Kane County and Alaskan R.S. 2477 challenges, stakeholders range from environmental groups, private citizens, companies, and individual states.
[1] Mark Cohen, Colorado Easement Law Primer, Lawyers.Com Blog (December 27, 2022), https://blogs.lawyers.com/attorney/real-estate/colorado-easement-law-primer-77844/.
[2] Id.
[3] Neal Brown, Legal Battle Over Kane County Roads Leads to a New Path Forward Without SUWA Intervention, Southern Utah News (June 8, 2022), https://www.sunews.net/post/legal-battle-over-kane-county-roads-leads-to-a-new-path-forward-without-suwa-intervention.
[4] Southern Utah Wilderness Alliance, Hoax Highways (RS 2477), suwa.org, https://suwa.org/issues/phantom-roads-r-s-2477/ (last visited January 29, 2023).
[5] Brown, supra note 3.
[6] Id.
[7] Id.
[8] Press Release, State of Alaska – Department of Law, State Has Right to Continue Access to Waterbodies Near Copper River, Alaska Supreme Court Says (September 16, 2022), https://law.alaska.gov/press/releases/2022/091622-CoppeRiver.html.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.