Revised Statute 2477 was passed by Congress in 1866 and provided an open-ended grant of “the right of way for the construction of highways over public lands, not reserved for public uses.” Commonly called “R.S. 2477,” the statute facilitated most of the transportation routes of the West and remained in effect for 110 years. During that time, congressional policy promoted the development of the unreserved public lands and their passage into private productive hands.
In 1976, congressional policy shifted as Congress passed the Federal Land Policy Management Act (FLPMA). FLPMA instituted a preference for retention of the lands in federal ownership and placed increased emphasis on conservation and preservation. R.S. 2477 was repealed, however Congress specified that any “valid” R.S. 2477 rights of way “existing on the date of approval of this Act” (October 21, 1976) would continue in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. Pub.L. No. 94-579 § 701(a), 90 Stat. 2743, 2786 (1976). The statute had the effect of “freezing” R.S. 2477 rights as they were in 1976.
In a landmark 2005 case, Southern Utah Wilderness Alliance v. Bureau of Land Management, the United States 10th Circuit Court of Appeals determined that the BLM lacks jurisdiction to adjudicate the validity of claimed R.S. 2477 roads. The case focused on three Utah counties that graded and performed work on sixteen previously un-graded roads traversing public land.
According to Public Lands News, the State of Utah has now filed notices of intent with the Department of Interior that it will file lawsuits to claim 18,784 R.S. 2477 road rights-of-way. Utah’s massive assertion of R.S. 2477 rights-of-ways sets the stage for potentially decades of litigation between Utah and the United States. Environmental groups are sure to join the fracas in an effort to preserve the road-less nature (and hence wilderness qualification) of many federal lands.
