By: Maegan Stump
Revised Statute 2477 (R.S. 2477) was originally enacted as a grant of rights-of-way in Section 8 of the Mining Act of 1866. R.S. 2477 states, “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” At the time, anyone that regularly used a tract of land for transportation could establish a road or highway, similar to a prescriptive easement and was an integral part in helping movement across the Western United States. Not all of the rights-of-ways were necessarily recorded anywhere. Fast forward to the passing of the Federal Land Policy and Management Act of 1976 (FLPMA). FLPMA oversees the way federal public lands are managed and it governs the managers of federal public land including the National Park Service, the National Forest Service, and the Bureau of Land Management. FLPMA repealed R.S. 2477. However, when R.S. 2477 was repealed, the rights-of-ways that were established under the statute were grandfathered in as exceptions in FLPMA.
As one can imagine, without records of all of the rights-of-way, this could lead to lawsuits and claims of rights-of-ways on federal public land including our nation’s National Park’s. Which is exactly what happened. In 2012, the state of Utah filed lawsuits for approximately 14,000 rights-of-way totaling 35,965 miles. This included 2,068 miles of right-of-way in Grand Staircase Escalante National Monument and 1,410 miles within Bears Ears National Monument.
Not only is it controversial for a road to be claimed in a National Park, but it also conflicts with requirements for areas to be deemed wilderness under the Wilderness Act of 1964. The Wilderness Act sets out the definition of wilderness including words such as, “untrammeled by man,” and, “without permanent improvements or human habitation.” The Wilderness Act also sets the standard in which land must be maintained, or rather left relatively unused, in order to be designated as a wilderness area. Lawsuits were filed claiming 4,660 miles of rights-of-way in proposed wilderness areas or areas that could potentially become designated wilderness in the future. A road in a proposed wilderness area would greatly inhibit that area’s ability from becoming designated wilderness one day.
One recent case that graced the United States Supreme Court in January of 2021 once again was Kane County, Utah v. United States. This case has had a tumultuous travel through the court system and most recently the US Supreme Court, specifically Justice Gorsuch, denied to review a petition for writ of certiorari over a 2019 Tenth Circuit Court of Appeals decision of Kane County, Utah v. United States. The previous decision had given Southern Utah Wilderness Alliance (SUWA) and The Wilderness Society a right to intervene. Originally, the Kane County cases began when the Kane County Commissioner claimed ownership of roads under R.S. 2477 in 2008 in order to open the roads up to off-road vehicle use, which was immediately challenged by SUWA and The Wilderness Society. Since then, these organizations and the County have gone back and forth under a number of different legal concepts including quiet title, standing, and intervention.
The legal issues resulting from R.S. 2477 are far from over and will likely remain a prevalent issue in the western states for many years. Unfortunately, by claiming rights-of-way, the potential for environmental harm is great if they exist in potential wilderness areas, in close vicinity to sensitive environmental zones, or within key habitat for wildlife.
43 U.S.C. §932 (1866) (repealed 1976).
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PL 94–579 (S 507), PL 94–579, October 21, 1976, 90 Stat 2743
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Bret C. Birdsong, Road Rage and R.S. 2477: Judicial and Administrative Responsibility for Resolving Road Claims on Public Lands, 56 Hastings L.J. 523, 533 (2005)
Southern Utah Wilderness Alliance, Hoax Highways (RS 2477), SUWA Blog (last accessed October 29, 2021), https://suwa.org/issues/phantom-roads-r-s-2477/
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16 U.S.C.A. § 1131 (West)
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Southern Utah Wilderness Alliance, Hoax Highways (RS 2477), SUWA Blog (last accessed October 29, 2021), https://suwa.org/issues/phantom-roads-r-s-2477/
Southern Utah Wilderness Alliance, Supreme Court Declines to Review Court Decision on Contentious Public Land Litigation, SUWA Blog (last accessed October 29, 2021), https://suwa.org/supreme-court-declines-to-review-court-decision-on-contentious-public-lands-litigation/
Kane Cty., Utah v. United States, 928 F.3d 877, 897 (10th Cir. 2019), cert. denied, 141 S. Ct. 1283, 209 L. Ed. 2d 18 (2021), and cert. denied, 141 S. Ct. 1284, 209 L. Ed. 2d 18 (2021)
Wilderness Soc’y v. Kane Cty., Utah, 560 F. Supp. 2d 1147, 1149 (D. Utah 2008), aff’d sub nom. The Wilderness Soc’y v. Kane Cty., Utah, 581 F.3d 1198 (10th Cir. 2009), on reh’g en banc sub nom. The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162 (10th Cir. 2011), and vacated sub nom. The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162 (10th Cir. 2011)