During the Reconstruction Era, the US Congress passed the Mining Act of 1865 which included a grant for the right of way to canal and ditch owners. Section 8 of the bill read in its entirety, “and be it further enacted that; the right of way for the construction of highways over public lands, not reserved for public use, is hereby granted.” This small, one-sentence provision allowed western settlers to establish “highways” and set the basis for Arizona’s County, State, and International road systems. Section 8 of the Mining Act of 1865 was codified as Revised Statute 2477 (RS 2477).

RS 2477 rights of way are considered public highways that were constructed by repeatedly using the same path until a visible way was established. These paths include but are not limited to, foot trails, pack trails, wagon roads, motorized roads, bridges, bridleways, canals, and other paths used by the public. Once constructed, the right of way became a property right governed by state law and held by the dominant estate (local political subdivision) on behalf of We The People. It is a servitude on the servient estate (the underlying landowner) that guarantees public access to public land.

Revised Statute 2477 rights of way inherently recognize a fundamental human right to locomotion and are important for economic development, communication, expression of free speech, and the right to assemble in the Public Forum. This bundle of rights also includes the right to use, maintain, and improve, as long as no undue burdens are placed on the servient estate. The servient estate cannot interfere with the dominant estate, who guarantees the right of way can be used by the public.

In Arizona, all roads that existed on, or prior to, October of 1976, inherit the property rights protections of Revised Statute 2477. These include all major interstate, county, and state highways, old wagon roads, forest roads, hiking trails, animal trails, and any other recognizable path over federal lands.

No federal law gives Federal Land Managers authority to close RS 2477 roads. The laws often cited by federal land managers to close roads mandate the federal government to protect and manage natural resources on public lands. To do that, Executive Order 11644, as amended by President Jimmy Carter, is often cited as the authoritative green light to designate a system of roads and trails. However, during the rule-making process for Executive Order 11644, the federal government made its intentions clear were not to designate a system or roads and trails, and that new regulations only applied where state law is not applicable.

The existence of RS 2477 rights-of-way do not impair federal agencies’ from following congressional mandates to protect wildlife, view sheds, riparian areas, wetlands, migratory birds, endangered species habitat, or manage timber, grazing, and mineral development. Any use, maintenance, or improvements of a RS 2477 right of way that may adversely affect these aspects of management can legally prompt civil action in a court of law.

Revised statute 2477 has been the subject of much controversy over the years. There is a lot of misleading information disseminated by anti-access groups to scare landowners and ranchers into opposing RS 2477 as a threat to private property. However, it is a fact that RS 2477 benefits private property by guaranteeing access to private in-holdings.

There are many attempts to discredit the application of RS 2477 in today’s management of public lands and roads because RS 2477 was repealed in 1976. However, existing law and agency regulations protect the rights attached to RS 2477 and strictly prohibit any agency of the federal government from exercising authority over the validity, recognition, or management of RS 2477 rights of way.

In addition to rhetoric from anti-access groups, much debate has arisen over the meaning of the short one-sentence law. For example, it is often argued that RS 2477 does not apply to roads on National Forest or National Park lands. However, the key factor remains weather the underlying land was “not reserved” by an act of the US Congress at the time the road was constructed.

Read and download the Mining Act of 1865

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