RS 2477

Albert Einstein is often credited with saying “Only two things are infinite, the universe and human stupidity, and I'm not sure about the former.” Old Al was a pretty smart guy I think, and the US Government seems determined to prove him right once again. More specifically, the feds are once again attempting to take our rights away from us. With Congress doing little more than sitting on their hands, and with the assistance of the “Republic of the 9th Circuit Court”, the bureaucrats are following an agenda that could well have been written by extremists from the Sierra Club. And from all appearances they will very likely succeed. More specifically, we face the imminent loss of our RS 2477 roads to bureaucratic decree. Many of us will remember the escapade a few years ago wherein the Idaho County Commissioners “wasted” our tax money in having all known RS 2477 roads in the county tracked down, inventoried, and mapped. At the time I stayed out of the donnybrook, mostly because I had no real idea of what these roads were, or why they are so important. As it turns out, the commissioners were right, while the nay-sayers (along with the fence sitters) were wrong.

In July of 1866, Congress, realizing that transportation was crucial to the development of the western territories, passed a one-line law that granted “the right of way for the construction of highways over public lands, not reserved for public uses.” (A one line law… My, how times have changed!) It granted to counties and states a right-of-way across public lands whenever a highway was built. Remember that nearly everything was public land at those days, and that every farm, ranch, mine, homestead, and burgeoning town needed a road or trail for public access. This statute, commonly called “R.S. 2477,” remained in effect for 110 years, with most of the roads, railroads, and waterways in the West being established under that authority. During that period of our history, national policy promoted the development of public lands into private (productive) hands, with R.S. 2477 rights-of-way being a key part of that policy. Unlike any other federal land statute, the establishment of R.S. 2477 rights of way demanded no formalities: no entry, no application, no license, no patent, and no deed from the feds; and no formal act of public acceptance on the part of the states or localities involved. The Supreme Court of Utah noted 75 years ago that R.S. 2477 “was a standing offer of a free right of way over the public domain,” and the grant may be accepted “without formal action by public authorities.” It’s also interesting to note that in the common use language of the time, a “highway” was nearly any route by which people, livestock, or materials were moved from point A to point B. They included but were not limited to roads, trails, footpaths, railways, waterways, and even the occasional goat path! If it could be traveled over, it was a legal “highway”, with Revised Statute 2477 granting the status of a permanent right-of-way. Even more crucial, those rights-of-way were held by the individual state and county governments, not by the federal government, and particularly not by any federal land management agency. By Congressional intent, the feds have absolutely no authority over those routes. Nor do they have any responsibility for maintaining them.

In 1976 Congress abandoned its development approach to public lands, and adopted a preference for retaining public lands in federal ownership, with, at the insistence of various environmental groups, an emphasis on conservation and preservation. As part of that statutory change, Congress repealed R.S. 2477. There could be no new R.S. 2477 rights of way after 1976. But as Congress repealed the original act, it specified that any “valid” R.S. 2477 rights of way “existing on the date of approval of this Act” (October 21, 1976) would continue in effect. The difficulty is in understanding what this all means, with the BLM apparently thinking that “if it ain’t paved, it ain’t in use”. In its Report to Congress on R.S. 2477: “The History and Management of R.S. 2477 Rights-of-Way Claims on Federal and Other Lands” (June 1993), the Department of the Interior lamented that R.S. 2477 highways “were constructed without any approval from the federal government and with no documentation of the public land records, so there are few official records documenting the right-of-way or indicating that a highway was constructed on federal land under this authority.”

On January 22 1997, then Sec. of the Interior Bruce Babbitt wrote a departmental memo "Revoking" the Department's prior policy regarding R.S. 2477 road rights-of-way, which forms the bulk of the rural transportation network in the Western states and is critical to all public lands access, for everything from natural resource production to recreation. The revoked policy was an attempt to reflect long-established law regarding these right-of-ways, which are owned and managed by state and local government entities. Interior Department personnel were instructed to offer no recognition of any R.S. 2477 right-of-way without prior authorization from the Secretary unless the holder gives evidence of a "demonstrated, compelling, and immediate need". Babbitt created a situation where government personnel would in effect say: "You can't exercise your rights unless we acknowledge that it's valid (or for you to go to court to prove it), and we are prohibited from taking action to acknowledge its validity. Therefore, if you exercise your rights, the United States may sue you". Since Congress had prevented issuing any new regulations, Babbit's memo claims that this is not rule making, even if it has the same effect. The memo stated that the Department will determine whether a right-of-way meets certain criteria concerning "withdrawals and reservations", "construction" and "highway". Given the BLM's proven hostility towards public access to federal lands, these terms will not be clearly defined, but applied on a case by case basis. Here we have yet another example of government bureaucracy being totally out of control! After all, Congress writes the law, it’s not the job of a bunch of regulation issuing pencil pushers sitting behind their desks in Washington DC. At the urging of environmental activists, our land management agencies are using regulatory decisions as another way to keep American citizens off our public lands. Why? Well, consider… The United States has more known energy reserves (coal, oil, gas, and Uranium) than almost anywhere else in the world. If however, we don’t utilize those reserves, the environmentalist ideal of “Stop Global Warming” is realized. At the same time, the energy producers of the world can continue to get rich at the expense of the American people. How to do both jobs in one fell swoop… simply lock up the American west in even more wilderness and roadless areas through land management agency regulations, whereby they win their War on the West by default.

Still, no matter what they claim, those rights-of-way do not belong to the feds to close or whatever, they belong to the individual states and counties. The same states and counties who have the legal right, and authority, to tell the feds where they can put their regulations! If it calls for a long and expensive court fight, so be it. All we have to do is explain to our duly elected city, county, state and congressional officials, that if they won’t fight for our rights, we can surely elect people who will!