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The Most Comprehensive Motorized Access Advocacy Resource For Arizona.
Chapter #2 Section #4
It is a common misbelief that RS 2477 does not apply to certain lands like National Forests and National Parks. However, this is not true. The application of RS 2477 is the same throughout all federal agencies, and existing laws and regulations protect all land use rights, including RS 2477 rights of way. The difference only lies in the language and citation in the Code of Federal Regulations.
The application of RS 2477 was not limited to any single federal agency, and no action was required by the federal government. The RS 2477 grant was applied to all public lands that were open to the mining and homestead laws of the United States. Therefore, the grant also applies to National Forests, National Parks, and, in some cases, Indian reservations.
Each federal agency cites different sections of the Code Of Federal Regulations as the authoritative mechanism to achieve the goals mandated by existing federal laws. Typically, these laws include the Taylor Grazing Act, The Endangered Species Act, the Wilderness Act, Federal Land Policy Management Act, and other laws that relate to legitimate powers and duties mandated by the US Congress. However, none of these laws grant the federal government power over RS 2477 rights of way, but rather protect these rights as discussed in the previous sections of this chapter.
As described by Interior Secretary Hodel’s 1988 Memo, the existence of a RS 2477 right of way has a material bearing on the implementation of conservation projects. Therefore, Federal land management agencies may carry out their mission under these laws without interfering with the fundamental property rights granted to the state of Arizona, and we the people. The scope of an RS2477 right of way, which defines an area of land where state law is applicable, includes any area that facilitates the use of the right of way. Therefore, campsites, roadside pull-offs, parking areas, trailheads, and other aspects that facilitate the use of the road, are included in the rights granted by Congress in the Mining Act of 1865.
Below, we will discuss laws and regulations that are asserted by the Bureau of Land Management and the US Forest Service when conducting Travel Management Planning on federal lands in Arizona. Although these regulations are valid, federal land managers consistently apply the new right of way standards under the Federal Land Policy Management Act, and ignore the fundamental property rights attached to existing and established Revised Statute 2477 rights of way.
These facts demonstrate why it’s important for local governments and We The People to challenge federal land management plans that assert authority where that authority is not granted.
Bureau Of land Management regulations are under Title 43 of the Code of Federal Regulations.
The U.S. Forest Service regulations are under Title 36 of the U.S. Code of Federal Regulations.
Revised Statute 2477 is easily applied to the Bureau of Land Management because of the clear language that exists in current regulations, and the established judicial precedent in federal court concerning RS 2477 disputes on Bureau of Land Management lands.
The Bureau of Land Management often cites authority under multiple laws that mandate the Bureau to manage and preserve under the Taylor Grazing Act, Endangered Species Act, National Trails Systems Act, Land Water Conservation Fund, and other laws that may be applicable to legitimate aspects of land management. To achieve the objectives mandated by these laws, the Bureau applies Title 43 Part 8340 of the Code of Federal Regulations.
Title 43 Part 8340 was implemented in response to Executive Order 11644 issued by President Richard Nixon in 1972 and later amended by President Jimmy Carter. This Executive Order provides the only legal definition of “offroad vehicle” and establishes a mechanism for federal land management agencies to prohibit cross-country travel off established roads. The Executive Order allows federal agencies to designate “areas and trails rather than the more restrictive roads and trails” and is only applicable where state law is insufficient to manage “off-road vehicle activities” as described during the rule-making process.
During the rule-making process for 43 CFR Part 8340, the Bureau again recognized the application of state law and clearly rejects the idea of restricting public use of public roads.
“There were many suggestions to establish criteria that would confine off-road vehicles to designated roads and trails. Executive Order 11644 provides for the designation of “areas and trails” rather than the more restrictive “roads and trails” … Numerous comments wanted the regulations to control hunting, firearms and registration as they relate to off-road vehicles. These are activities in which the States have traditionally established standards of control, and there is no intent to interfere in this function. Standards of control in these regulations have been limited to situations where the States either have no controls, or their controls may be considered insufficient for off-road vehicle activities on public lands.”
44 FR 34834 June 15, 1979
43 CFR 8340.0-5(a) defines an “off-road Vehicle” as, “any motorized vehicle capable of, or designed for, travel on or immediately over land, water, or other natural terrain” and shares the same definition with Executive Order 11644. This definition applies to cross-country travel over natural terrain and does not grant the Bureau authority to close valid and established RS 2477 rights of way.
The Federal Land Policy Management Act is applied by the Bureau of Land Management during travel management planning. It is the only law that gives the Bureau authority over all roads built after October 1976. Because FLPMA repealed RS 2477, it established a new process to acquire rights of way over federal lands. This process is the prefered method to establish new state and county highways, maintainance agreements for existing highways, and federal funding is only given when these standards are applied. Instead of recognizing RS 2477 rights of way, the Bureau continually ignores these property rights.
As discussed in previous chapters of this workshop, the Federal Land Policy Management Act protects all RS 2477 roads and does not apply to their governance. This fact is ingrained in current and past agency regulations under the authority of FLPMA.
During the rulemaking process for Title 43 Part 2800 in regard to FLPMA, the Bureau of Land Management made the following statement to clarify that FLPMA does not apply, to Revised Statute 2477.
“It was not the intent of the proposed rule making, nor is it the intent of this final rule making, to diminish or reduce the rights conferred by a right-of-way granted prior to October 21, 1976…. In addition, if questions should arise regarding the rights of a right-of-way holder under a grant or statute, the earlier editions of the Code of Federal Regulations on rights-of-way will remain available to assist in interpretation of the rights conferred by the grant or earlier statute… In carrying out the Department’s management responsibilities, the authorized officer will be careful to avoid any action that will diminish or reduce the rights conferred under a right-of-way grant issued prior to October 21, 1976.”
51 Fed. Reg. 6542 (February 25, 1976).
In 1986, the Department also recognized its duty to honor prior, valid, existing rights during the rulemaking process for 43 U.S.C. 2800.
“A right-of-way issued on or before October 21, 1976, pursuant to then-existing statutory authority is covered by the provisions of this part unless administration under this part diminishes or reduces any rights conferred by the grant or the statute under which it was issued, in which event the provisions of the grant or the then-existing statute shall apply.”
43 CFR 2801.4 (February 25, 1986) Repealed
Existing Federal regulations under Title 43 Subpart 2801.6 describes the scope of Part 2800 and clearly exempt RS 2477 rights of way from the provisions of Part 2800.
Two previous Department of Interior memorandums were issued post-FLPMA that emphasized department policy concerning RS 2477 rights of way. Interior Secretary Donald Paul Hodel issued a Memorandum on December 7, 1988 (B.L.M. Manual 2801, Appendix 3) concerning the department policy with RS 2477 rights of way. This memorandum is significant in two ways. First, it illustrates the department’s historic policy position on RS 2477 and includes the application of State Law. Second, It shows how far federal land managers have departed from this long-standing precedent. In the memo, Secretary Hodel writes, “The existence or lack of existence of such highway R/Ws has material bearing on the development and implementation of management plans for conservation system units and other areas of Federal lands.”
In 1990, Secretary Michael J. Penfold of the Department of Interior issued another department memo expanding on Secretary Hodel’s 1988 memo and states the following, “It should be emphasized that the Secretary’s policy (issued 12/7/88) provides the necessary guidance and direction in regard to most issues relative to RS-2477 R/Ws (see B.L.M. Manual 2801, Appendix 3). To briefly reiterate the policy, please remember that under the grant offered by RS-2477 and validly accepted, the interests of the Department are that of the owner of the servient estate and adjacent lands/resources. In this context, the Department has no management control under RS-2477 over proper uses of the highway and highway R/W unless we can demonstrate unnecessary degradation of the servient estate (BLM Manual 2801.48 B).”
Secretary Hodel recognized that the existence of a RS 2477 right of way does not impair the Department of the Interior or Bureau of Land Management from carrying out their duties under the various laws of the United States and acknowledged that land use planning is subject to the existence of such rights.
Both of these memorandums have been superseded and are no longer available to the public. We have acquired them from the internet archives and have made them available to the public.
The US Forest Service applies its Travel Management Rule under Title 36 Part 212 of the Code of Federal Regulation as the driving mechanism behind asserting authority over RS 2477 roads. The Travel Management Rule was developed in response to Executive Order 11644 and
36 CFR 261 is applied by the US Forest Service as the authoritative mechanism to place certain prohibitions on the use of public lands.
Title 36 Part 251 – Land Use is also cited by the US Forest Service durring Travel Management Planning and exempts RS 2477 rights of way from Special Use Authorizations.
Move to the next page to learn about the Arizona laws that govern RS 2477 roads.
1865 – The Mining Act of 1865 is written and introduced by Senator William M. Stewart from Nevada.
1870 – An amendment is proposed to grant special rights for the Sutro Tunnel in Nevada.
1870 – The founder of The Mining Act of 1865 opposes the proposed amendment and provides valuable insight into the legislative intent of RS 2477.
1976 – The Federal Land Policy Management Act, otherwise known as the BLM Organic Act, established the Bureau of Land Management multiple use mandate and repealed the Mining Act of 1865.
1995 – The RS 2477 Settlement Act was introduced to settle disputes between the states and the Federal Government concerning RS 2477 roads, but failed to become law.
1992-1997 – The US Congress include prohibitions in the annual Appropriations Act to prohibit federal agencies from establishing any rule or regulation pertaining to the validity, recognition or management of RS 2477 rights-of-way without the express authorization of the US Congress.
1997 – The Comptroller General issued an opinion that made section 108 of the Omnibus Consolidated Appropriations Act permanent law.
2003 – The Government Accounting Office issued a second opinion re-enforcing Decision B-277719 concerning a memorandum of understanding between the State of Utah and the Bureau of Land Management.