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For such a little old federal law, RS-2477 can sure
cause some big controversies. It's an old law because
Revised Statute 2477 was passed in 1866. It's little law
because it's only 19 words long: The right-of-way for
construction of highways over public lands, not reserved
for public uses, is hereby granted.
Back then, there were no federal land-management
agencies. After the United States acquired territory, some
land was set aside, or reserved,
like an Indian
reservation
or a military reservation.
They're
called reservations
because they are on
reserved
lands.
Most of the territory became public domain
or
public lands,
open to homesteading and mining
claims, and that was the case when RS-2477 became law in
1866. Basically, it says that if there's a public road
constructed across public land, the public's right to use
the road remains, even if there's a change in the status of
the public land it crosses.
The change might be the creation of a national forest
(called a forest reserve
a century ago) or the
patenting of a mining claim. There might be a homestead, or
a land sale, or a national monument or park. The most
widespread change came in 1976, with the passage of the
Federal Land Policy Management Act, which in effect
reserved
all public land managed by the federal
Bureau of Land Management.
In all those cases, if the road was there before the land left the public domain, then there's a public right-of-way under RS-2477.
But the brevity of RS-2477 makes it open to many
interpretations. A highway
in 1866, when horses were
the dominant transportation in Colorado Territory, doesn't
mean the same thing as a highway
does now.
Construction
then certainly didn't mean bulldozers,
but did it require more than moving a few rocks? How wide
was this right-of-way
? And if it was hereby
granted,
to whom was it granted?
Over the years, some answers have evolved. County governments generally get the right-of-way, its width determined by state law. The rest is more or less up to the U.S. Department of the Interior, and its policies change with elections.
In 1988, the Republican Interior Department defined
construction
quite loosely: removing high
vegetation, moving large rocks out of the way, or filling
low spots,
as well as the passage of vehicles by
users over time,
although a pedestrian or pack
animal trail may qualify.
Generally, all a county had
to do was say that it had been a public road before the
land was reserved, since a statement by an appropriate
public body that the highway was and still is considered a
public highway will be accepted.
In 1994, the Democratic Interior Secretary required
an on-site examination to determine whether construction
of the alleged right-of-way had occurred,
and pack
trails didn't quality, since an RS-2477 route had to be
used by the public for the passage of vehicles carrying
people or goods from place to place.
Now we have a Republican Interior Secretary, Gale
Norton, and she recently reached to an agreement with Utah
concerning how RS-2477 claims will be processed. In some
ways it is more restrictive than previous policies -- for
instance, there will be no RS-2477 claims inside in
national parks, refuges and wilderness areas, even if
someone can show that there was a public road across the
land before it was reserved. Also, decaying pack trails
aren't covered, for the road must be capable of
accommodating automobiles or trucks with four wheels
and have received regular periodic maintenance.
Interior has said that it wants to make similar
agreements with other states, generally consistent with
the department's Memorandum of Understanding with
Utah.
However, Colorado's relevant laws differ from Utah's.
That was stressed by Greg Walcher, director of our state
department of natural resources, in a three-page letter to
Interior dated May 15. Among other things, he argued that
mere passage of vehicles,
rather than four-wheeled
vehicles and regular maintenance, is enough under Colorado
law to support an RS-2477 claim,
This has all sorts of bearing on wilderness designations and the like, but out here in the boondocks, most RS-2477 litigation comes about because some rich outsider buys a ranch, then closes the traditional road to the adjacent public land. Locals who want to preserve their access put pressure on the county to pursue an RS-2477 claim.
So it should be interesting to see how the Bush Administration plays this out. It has a motorized-recreation constituency which wants access. It also has a rich-weasel consistency which wants to keep us peons away from those expensive rural mansions. And there's no way to please both.
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