THE GHOST OF RS 2477;
DOES IT HAUNT YOUR NECK OF
THE WOODS?
By Geoffrey P. Anderson
A post Civil War statute allowing the creation of roads throughout the West can save the necks of some landowners from the noose or be a pain in the neck to others. Either way, the problems caused by this old law are racing across the West at break neck speed.
BACKGROUND
RS 2477 was passed in 1866 and allowed for the creation of public roads across public property. The statute was one sentence and stated in its entirety: “The right-of-way for the construction of highways over public land, not reserved for public uses, is hereby granted”. The law was repealed in 1976, but roads that had been established before that time are still valid.
The statute was designed to help open and settle the West. The federal government was passing homesteading and mining laws around the same time. The idea was to transfer the vast amount of public land in the West to private ownership. Certainly, farming, ranching and mining would not be possible without a road system to allow the new owners to access their properties and allow them to bring their goods to market. Many of the federal, state and county highways throughout Colorado and the rest of the West were established as RS 2477 roads and no one questions that they are valid public roads. Problems can arise with more obscure roads.
RS 2477 can be employed to open access to previously isolated or landlocked tracts. At the same time, a previously unknown road may suddenly appear crossing what had been a peaceful, private property destroying the very attributes that may be highly valued by the owner. RS 2477 has also been used by county governments to thwart federal attempts to designate large areas in the West as wilderness. This occurred first in Southern Utah and in Alaska and has most recently cropped up in Moffat County Colorado.
NUTS AND BOLTS
Although RS 2477 is a federal statute, courts will look to state law to determine whether sufficient action has occurred to create a public road. Sierra Club v. Hodel, 848 F.2d 1068, 1078 (10th Cir. 1988). In Colorado, use by only one property owner is sufficient to create a public road. Wilkenson v. Department of the Interior, 634 F.Supp. 1265, 1272 (D. Colo. 1986); Leach v. Manhart, 77 P.2d 652, 653. The terms “roads” and “highways” include footpaths. Wilkenson, supra; Simon v. Pettit, 651 P.2d 418, 419 (Colo. App. 1982), aff’d., 687 P.2d 1299 (Colo. 1984). Public roads can also be created by the passage of wagons over the natural soil. Wilkenson, supra; Central Pacific Railway Co. v. Alameda County, 284 U.S. 463, 467 (1932).
Although some states have required some evidence of road construction to establish a public road under RS 2477, no such requirement appears in Colorado law. Indeed, such a requirement makes little sense. If someone crossed public land to get to his farm, why would he engage in any construction when it wasn’t necessary? This requirement seems especially unrealistic when considering that many homesteaders and miners were living on a subsistence level with little or no equipment available to them to do road construction.
R.S. 2477 can be asserted against private landowners, Brown v. Jolley, 387 P.2d 278, 282 (Colo. 1963) and Leach v. Manhart, 77 P.2d 652, 653-54 (Colo. 1938). The ability of a private party to assert an R.S. 2477 claim against the federal government to cross federal property is questionable at this point. Fairhurst Family Association, LLC v. United States Forest Service,172 F. Supp.2d 1328 (D. Colo. 2001); Baker’s Peak Landowner’s Association, Inc. v. United States of America, Case No. 00-S-519, Order dated July 30, 2001; and Staley v. United States of America, 168 F. Supp.2d 1209 (D. Colo. 2001).
These rulings make little sense considering that RS 2477 was initially enacted to provide access to private property. Under these rulings, private parties would apparently be required to convince the local county to sue the federal government on their behalf. Different counties in Colorado have widely varying attitudes toward road creation. As mentioned, Moffat County is aggressively pursuing more roads, but other counties, such as Boulder, Pitkin, San Miguel and others experiencing high growth rates would rather have less roads. Thus, similarly situated citizens in different counties will be treated differently. So far, we know of no one making an equal protection argument to support private parties’ ability to sue the federal government for a public road, but under the right circumstances, it could happen.
FEDERAL REGULATIONS
In 1994, the Department of Interior proposed regulations that could have resulted in the automatic termination of many R.S. 2477 rights of way. (59 Fed. Reg. 39216, August 1, 1994). The Republican Congress that was elected in November, 1994, quickly placed a moratorium on these regulations, but the moratorium was lifted for fiscal year 1997 in the Department of Interior appropriations bill. However, Congress precluded implementation of any RS 2477 regulations without its approval.
Despite this apparent moratorium, the Bush Administration issued a new regulation on January 6, 2003 that may make it easier for BLM to acknowledge RS 2477 roads across federal property. 69 FR 494-01. The regulation allows BLM to issue disclaimers of interest in lands in which the federal government may claim some title interest. The new regulation amends an existing regulation that allowed such disclaimers. The changes allow any entity claiming title to make an application for a disclaimer, whereas the former rule required that the record title holder apply. Also, the new regulation removed the 12 year statute of limitations as to state governments. An additional change was to define “States” as any state, city, county or other local government entity. The language that any entity may file for a disclaimer may allow individuals to claim public roads to their property across federal property, but so far the regulation is too new to know for sure.
The BLM has insisted that the new regulation is not a significant change to the law and states that it has issued only 62 recordable disclaimers since the enactment of FLPMA in 1976, an average of three per year. Preamble, 68 FR 494-01. Environmental groups, on the other hand, have stated their fears that the new regulation could result in the opening of thousands of miles of roads in western Colorado alone. Denver Post 12/24/02. In fact, in January, 2003, the Moffat County Commissioners voted to apply for rights of way disclaimers for hundreds of miles of roads in that county; some crossing Dinosaur National Monument and others crossing areas slated for wilderness consideration. Denver Post 1/20/03. The State of Utah recently made a deal with BLM to not claim roads across national parks, national monuments or wilderness areas. Rocky Mountain News 6/20/03. Colorado has so far taken a more aggressive approach and is asserting that it could claim the right to roads crossing such areas. Id., Denver Post editorial 6/4/03. Whether the BLM continues to issue only about three disclaimers of interest per year, or whether BLM will start issuing disclaimers to thousands of miles of RS 2477 rights of way remains to be seen.
CONSEQUENCES
Whether a road can be established as a public road can make a significant difference in how the road can be used. Many parcels that have been used for decades for agricultural uses and the access road may be limited to those uses. In other words, an adjacent property owner may be able to raise a valid objection if the road crossing her property changes to access for one or two houses instead of access to mow hay two or three time per year. On the other hand, if the road is public, it can be used in any manner, for any purposes. Therefore, the adjoining landowner could not object if the road was used to access a 150 unit subdivision. Obviously, if the land crossed by the road is in a high value area, the stakes in a dispute like that would be equally high.
So how can you tell whether a road that could provide access to your property (or one crossing your property to reach another property) is an RS 2477 road? Many times, the answer is not clear. It will depend on events that occurred long ago, sometimes 100 years or more. Every road is unique and usually significant historic research is required. Avenues of inquiry include searching old government records, reviewing current and historic maps and aerial photographs and other techniques. Many times, the research will turn up evidence on both sides of the question and a court action will be required to resolve the issue.
FURTHER RESOURCES
More information on RS 2477 is available on the web. The Utah Association of Counties sponsors a "public access home page" at www.rs2477roads.com. Another useful web site is found at www.westerncounties.org/2477ind.htm. Weighing in on the other side of the issue is the Southern Utah Wilderness Alliance with its own home page at www.suwa.org. These sites contain much information about R.S. 2477 and, particularly, the Utah Association of Counties contains citations and summaries of many state and federal cases construing R.S. 2477. See also, Hjelle, Ten Essential Points Concerning R.S. 2477 Rights of Way, 14 University of Utah Journal of Energy, Natural Resources and Environmental Law 301 (1994).
Although it was repealed nearly 30 years ago, the ghost of RS 2477 continues to haunt Colorado, sometimes with significant consequences.
|
