Revised Statute 2477 is a property right granted to the state, and governed by Arizona Revised Statute 37.931 which places the validity, recognition, and management of RS 2477 rights of way under the County Board of Supervisors. RS 2477 is a servitude imposed by the dominant estate on the servient estate that aids in commerce, and connectivity, and sets the basis of a county transportation system.

Arizona Law governing RS 2477 rights of way clearly describes the State’s intent to accept the grant offered by the US Congress upon the passage of the Mining Act of 1866. State law directly correlates with the facts presented in this comment.

State assertion to RS 2477 rights of way

Arizona Revised Statute Title 37 Chapter 5 specifically recognizes RS 2477 rights of way and determines who has authority over the recognition, management, or validity. This statute is Arizona’s assertion of the fundamental property rights granted to the state under the mining Act of 1866. This statute recognizes the fundamental property rights granted to the state and asserts the following:

1. This state, on behalf of itself and its political subdivisions, asserts and claims rights of way across public lands under section 8 of the mining act of 1866, reenacted and re-codified as Revised Statute 2477; 43 United States Code section 932, acquired from and after its effective date through October 21, 1976, the date of its repeal, by authority of the department of the interior and related agencies appropriations act, 1997, section 108, enacted by the omnibus consolidated appropriations act, 1997 (P.L. 104-208; 110 Stat. 3009). These rights of way across public lands may have been acquired in any manner authorized by the law of the United States, the Territory of Arizona, or this state, including:
   1. The use by this state or a political subdivision of this state with the intention of establishing a public highway over public lands.
   2. The construction or maintenance of a public highway over public lands.
   3. The inclusion of a legally described right-of-way across public lands in a state, county or municipal plat or map of public roads.
   4. The expenditure of public monies on the highway.
   5. The execution of a memorandum of understanding or other agreement with any agency of the United States government that recognizes the right or obligation of this state or a county, city or town of this state to widen or maintain a highway or a portion of a highway.
   6. Any other affirmative act by this state or a county, city or town of this state, consistent with federal, territorial or state law, indicating acceptance of a right-of-way across public lands.
   7. The use by the public for a period required by law.
2. This state does not recognize or consent, and has not consented, to the exchange, waiver or abandonment of any Revised Statute 2477 right-of-way across public lands unless by formal, written official action that was taken by the state, county or municipal agency or instrumentality that held the right-of-way across public lands and that was recorded in the office of the county recorder of the county in which the public lands are located. No officer, employee or agent of this state or a county, city or town of this state has or had authority to exchange, waive or abandon a Revised Statute 2477 right-of-way across public lands in violation of this subsection, and any such purported action was void when taken unless later ratified by official action in compliance with this subsection.
3. The failure to conduct mechanical maintenance of a Revised Statute 2477 right-of-way across public lands does not affect the status of the right-of-way across public lands as a highway for any purpose of Revised Statute 2477.
4. The omission of a Revised Statute 2477 right-of-way across public lands from any plat, description or map of public roads does not waive or constitute a failure to acquire a right-of-way across public lands under Revised Statute 2477.
5. For the purposes of this section:
   1. The extent of a Revised Statute 2477 right-of-way across public lands is the dimension that is reasonable under the circumstance.
   2. A Revised Statute 2477 right-of-way across public lands includes the right to:
      1. Widen the highway as necessary to accommodate increased public travel and traffic associated with all accepted uses.
      2. Change or modify the horizontal alignment or vertical profiles as required for public safety and contemporary design standards.
   3. The public has the right to use a Revised Statute 2477 right-of-way across public lands to access public lands.
6. If privately owned land is completely surrounded by or adjacent to public lands, the landowner has the right to use a Revised Statute 2477 right-of-way across public lands to access that land.
7. A Revised Statute 2477 right-of-way across public lands shall be closed only by order of a court of competent jurisdiction or the proper completion of an administrative process established for the abandonment, maintenance, construction or vacation of a public right-of-way otherwise allowed by law.
8. This section does not affect the inclusion or exclusion of, or the obligation of maintaining, any highway, road, street or route in any system of state, county or municipal streets, roads or highways. The inclusion of any highway, road, street or route in the state, county or municipal system shall be solely in accordance with other law.
9. This section does not:
   1. Apply to any Revised Statute 2477 right-of-way across private property.
   2. Impair, modify or otherwise affect any private property rights in effect on July 3, 2015. Any claim, determination or identification of a right-of-way across public lands pursuant to this section does not establish prior rights for determining financial or legal responsibility for taking any private property rights, in whole or in part. All presumptions and interpretations of fact and law relating to a claim, determination or identification of a right-of-way across public lands pursuant to this section shall be in favor of preserving private property rights.

Arizona Attorney General Opinion on RS 2477

In 2014, the Arizona Attorney General issued opinion number I17-005 (R15-014) regarding Revised Statute 2477 rights-of-way. In the opinion, Attorney General Mark Brnovich addresses whether political subdivisions, as defined in Article 13 Section 7 of the Arizona Constitution, have the authority to use, access, maintain, and guarantee access to valid RS 2477 rights of way.

In summary, the Attorney General answered,

“Yes. The newly-enacted Arizona Revised Statutes § 37-931 authorizes officers and employees of the State of Arizona and its political subdivisions to use, access, maintain, and guarantee access to valid R.S. 2477 rights-of-way across federal lands.

Where a valid R.S. 2477 right-of-way exists, Arizona state and local officials have broad authority over those lands. While federal agencies may exercise regulatory oversight over rights-of-way that cross federal lands, no federal agency may unreasonably interfere with the right-of-way possessed by the State of Arizona.”

The Attorney General’s opinion reiterates the facts stated in this comment and implies that, “Arizona R.S. 2477 rights-of-way may not be closed by a federal agency’s regulatory fiat” and that County Sheriffs may cut locks on unlawfully blocked RS 2477 rights of way without breaching the peace.

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