Mountain Law: Battle lines drawn over obscure federal law

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One of the most controversial issues facing federal lands today has to do with an obscure federal law known as "R.S. 2477." The law was passed in 1866 and essentially authorized construction of "highways" on some federal lands. The pertinent language consists of a single sentence that reads as follows: [T]he right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." Congress repealed R.S. 2477 in 1976, but highways established as of the repeal were not affected. With current regulations making it practically impossible to establish new roads on federal lands, one strategy for land use proponents (we'll call this group "Off-roaders") is to show that routes they wish to use don't require new approval because they were established under R.S. 2477. These efforts are often opposed by those who want access to federal land restricted (we'll call this group "Environmentalists"). To illustrate the controversy, let's discuss how the pertinent terms of R.S. 2477 may be interpreted by each group.

What is a "highway"? To off-roaders, a highway is any type of thoroughfare, be it a footpath, road, or primitive trail, which is open to the public. Under this definition, mere use by the public is sufficient to make a public highway. Alternatively, Environmentalists contend that a highway is only a vehicular road connecting towns. As such, it would require a high degree of use by the public and a significant degree of construction or improvement. It might even require a formal "acceptance" by the government just to make sure that it is public. On this issue, federal courts have said that a primitive path not connecting towns can be a highway for purposes of R.S. 2477.

What constitutes "construction"? Off-roaders view "construction" as continuous use over a period of time that establishes a path. Environmentalists take a narrower view and argue that construction requires affirmative road-building. On this issue, federal courts have ruled that "mechanical construction" is not required to establish a R.S. 2477 highway.

What are "public lands, not reserved for public uses"? Off-roaders argue that land can only be reserved for public uses explicitly. They might consider a national park to be reserved for public uses under applicable law, but they would not consider something like a grazing district to be reserved for public uses. Not surprisingly, Environmentalists argue more restrictively that any lands set aside for any specific public purpose by the federal government should be exempt from R.S. 2477 claims.

In light of the controversy, all three branches of government at both the state and federal levels have attempted, albeit unsuccessfully, to resolve R.S. 2477 issues. Notably, Colorado Representative (now Sen.) Mark Udall proposed bills that would narrowly constrain R.S. 2477 highways. In the absence of clarification by the legislative or executive branches, many disputes end up in federal court.

A recent major case involved a county in Utah that removed federal signs that prohibited off-road vehicle use on federal lands and replaced them with signs that purported to open new routes to the public. The county argued it had title to the routes because they were established under R.S. 2477. Following challenges by environmental groups, the federal court found that the county could not open the routes without first establishing their existence in court under R.S. 2477. In the wake of this decision, there are now numerous R.S. 2477 cases pending in federal court, particularly in Utah.

The drafters of R.S. 2477 did not provide guidance as to what it meant, so many issues remain unsettled. For the foreseeable future, there will likely continue to be conflict between groups with differing views about how federal lands should be used.

Noah Klug is principal of The Klug Law Firm, LLC, located in Summit County, Colorado. His practice focuses on business, real estate, and litigation. He may be reached at (970) 468-4953 or Noah@TheKlugLawFirm.com.