Public Rights of Way

over Federally managed Lands

 JUDICIAL RULINGS ON RS 2477

The Mining Act of 1866 had applied a "free-access" principle to exploration on "all mineral lands of the public domain." The Original Text Of The Mining Act of 1866 States: "The right-of-way for the construction of highways over public lands, not reserved for public purposes, is hereby granted."

The General Mining Act of May 10, 1872, (Statutes at Large, vol. 17, p. 91; U.S.C. vol. 30, Section 23,) also included a free access clause (p. 91); "[A]ll valuable mineral deposits in lands belonging to the United States...shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase." The free access policy allowed the miner to engage in mineral activity without advance notice or permission to explore, develop, purchase and obtain surface land title on lands where deposits were found. Supervisory power was delegated to the local miners themselves, whose rules and regulations were ratified by federal law. Delegation also went to the states, many of which had already adopted regulations. (See 1905 Butte City Water Co. v. Baker.)

In numerous cases decided both before and after the period 1866-1872, the courts had held that the provisions in these Acts apllied only to those lands available for disposal under the various disposal laws - not to those reserved or dedicated for other uses. In 1922, the Court in Oklahoma v. Texas (258 U.S. 574, 599-600) held that the broader language of the 1872 Act did not change the application of free access from that of the 1866 Act.

Congress and the agencies have historically recognized the authority of the State "police powers" in determinining what constitutes an acceptance of the federal offer to grant the right of way. Whether a right of way has been established is held to be a question of state law. (Standard Ventures, Inc. v. Arizona; Fisher v. Golden Valley Elec. Ass'n., Inc. 658 P.2d, Alaska;1983 - citing United States v. Oklahoma Gas & Elec. Co. 328 U.S.; 1943.)

Several cases have affirmed the State's proprietary jurisdiction over rights-of-way: In Colorado v. Toll, 268 U.S. 278, 1925 - The Park Service tried to assert exclusive control over the roads within the Park. The Supreme Court held that the creation of Rocky Mountain National Park did not take jurisdiction away from the State of Colorado over existing roads within the Park. In Wilkinson v. Department of the Interior, 634 F. Supp. 1265, D. Colo, 1986, the case involved a road that entered and then exited the Colorado National Monument. The Court held that the Park Service could not charge an entrance fee for those using the road through the Monument because this was an invalid restriction on the right-of-way. An attempt to prohibit all commercial traffic was also determined to be contrary to the right-of-way. In U.S. v. Jenks, 804 F. Supp. 232 - D.N.M., 1992 - The court again found that the issue of whether an R.S. 2477 right-of-way has been established is a question of State law.

In addition, the grant of a right of way is self-executing. An RS 2477 right of way comes into existence automatically when a public highway is established across public lands in accordance with the law of the State. (Standard Ventures, Inc. v. Arizona, 499 F.2d , 9th Cir. 1974; Sierra Club v. Hodel, 848 F.2d, 10th Cir.; 1988.)

In California, State law recognizes both informal creation and customary use by the public and formal action by public authority as sufficient to constitute the dedication of a "public highway." In Ball v. Stephens, 158 P. 2d 207 (Cal. Ct. App. 1945) citing Pol. Code Section 2618 as reenacted in 1883 and in force until 1935) established "Acceptance of the offer of the government could be manifested and dedication could be effected by selection of a route and its establishment as a highway by public authority. Dedication could also be effected without action by the state or county, by the laying out of a road and its use by the public sufficient in law to constitute acceptance by the public of an offer of dedication. In order that a road should become a public highway, it must be established in accordance with the law of the state in which it is located."

(SEE also: McRose v. Bottyer, 22 P. 393, Cal. 1989; Bequette v. Patterson, 37 P.917, Cal. 1894; Schwerdtle v. Placer County, 41 P.448, Cal. 1895 - citing St. 1870, p.457; Sutton v. Nicholaisen, 44 P. 805, Cal. 1896 - citing Pol. Code Section 2619, enacted 1873, amended by Act of March 30, 1874, repealed 1883; Town of Red Bluff v. Walbridge, 116 P. 77, Cal. Ct. App. 1911; People v. Quong Sing, 127 P. 1052, Cal. Ct. App. 1912 - citing Pol. Code Section 2619; Central Pacific Ry. Co. v. Alameda, 299 P. 77, Cal. 1931; Ball v. Stephens, 158 P.2d 207, Cal. Ct. App. 1945 - citing Pol. Code Section 2618 as reenacted in 1883 and in force until 1935.)]

Public prescriptive easements involve the public use, not possession of the land (Jesse Dukeminier & James Krier, Property 850 2d ed. 1988; See also Dillingham for a discussion of the distinction between use and posession.) To assert a public easement by prescription, the public need only act as if it were claiming a permanent right to the easement (Swift v. Kniffen, 706 P.2d 296, Alaska 1985.)

In the mid-1980s, while the US Fish and Wildlife Service and National Park Service under the Department of Interior (DOI) were preparing land plans, the State of Alaska began to identify historic access routes across federally administered lands and identified them under state law. These included seasonal trails, footpaths and traditional roads and trails used by wheeled and tracked vehicles.

Subsequently, the DOI policy (1988) was that the construction must have occurred while the lands were in public domain and involve the physical act of readying the highway for intended method of transportation. The intended use could be by foot, horse, pack animal or vehicle. The construction could consist of removal of vegetation, rocks, road maintenance over several years or the mere passage of vehicles.

The DOI, later, took the stance that establishment of a "public highway" required preparation of a durable, observable modification of the land for vehicle passage. It would not consider foot paths, horse trails, wagon or vehicle ruts, or vegetation removal and removal of rocks. Further, the highway must connect from one legitimate public destination to another. Claims of an RS 2477 were to be formally filed within a certain period of time and designation of Wilderness Areas or Wilderness Study Areas would automatically extinguish all claims not already filed.

The Courts have historically ruled that the standard for conditions that establish a right of way include trails that have been frequented by public users for such a period of time and under such conditions as to prove that a public right of way has come into existence. (Hamerly; Dillingham 705 P.2d; Alaska Land Title 667 P.2d; Girves 536 P.2d.)

Continuous use is not a requirement. "Infrequent and sporadic" use is insufficient. "Regular" and "common" use by the public is necessary. (McGill v. Wahl, 839 P.2d, Alaska 1992; Hamerly; Kirk v. Schultz, 110 P.2d, Idaho 1941.) In addition, the purpose of travel is irrelevant to RS 2477 (Ball; Dillingham.)

The Court in Ball v. Stephens, 258 P.2d, Cal. 1945, stated that the Courts must look to the circumstances as they existed at the time of establishment for a determination of whether the public has made "substantial use" of the claimed easement. The court noted that travel over a claimed RS 2477 right of way was irregular, but that was the nature of the country and only a limited number of people had occasion to go that way.

In addition, the Courts have also recognized that new routes may evolve, but that there is no requirement that the historic route and its current location coincide exactly. Where parts of an historic road or trail are obliterated by another more modern highway, or are destroyed by natural forces, the right of way is not obliterated or destroyed. (Ball v. Stephens.)

The Act was repealed with FLPMA on October 21 1976, but under 43 U.S.C. s 1769, all rights of way existing on the date of repeal were expressly preserved. This means that highways established between 1866 and October 21, 1976 on public lands not withdrawn from public disposal were grandfathered, or protected, as valid existing rights-of-way.