The facts about RS 2477

A common sense explanation about this divisive law.

All across the West, an obscure mining law called Revised Statute 2477 (or "RS 2477") is being used by anti-landowner and anti-environmental groups to try to open rights of way where none have previously existed.  These groups have generated much misinformation about the history and application of the law, either because they do not understand it, or as part of a deliberate attempt to deceive the public.

This article explains the basic facts about RS 2477.  Itrepresents the opinions of attorneys and legal scholars.  There are now many groups that are attempting to misinform the public, so you might come across articles that contradict what you see here.  Make sure you have correct information by consulting a real estate attorney, or go to the Official RS 2477 Home Page.

Property rights advocates and conservationists need to understand RS2477.  If you value your private property rights and your right to enjoy pubilc lands, make sure that you know these facts.  But don't take our word for it.  Check with your attorney!

1. RS 2477 is an obscure law that has been interpreted by many courts.  Its wording is simple and easy to understand. Here is the entire text of RS 2477: "The right-of-way for the construction of highways across public lands not reserved for public purposes is hereby granted."  Congress never defined the words "construction" or "highways", and many special interest groups have attempted to re-define them in bizarre and unusual ways to suit their agenda of creating public roads where none have ever existed before.  Common sense is your best guide to understanding what Congress meant.

2. Congress repealed RS 2477 in 1976. Because RS 2477 became law in 1866, anti-landowner extremists argue that it somehow invalidates the Constitutional protections of private property.  Only 28 years ago, when Congress repealed RS 2477 and replaced it and many other laws with the Federal Land Policy and Management Act, it specifically and explicitly reaffirmed only the RS 2477 rights-of-way that had already been documented.

3. RS 2477 required an action by the local government.  Once a highway was constructed, the conditions were met, and the right-of-way had to be recorded by the local county to take effect.  If no right-of-way was recorded, then there is no public road.  Any other interpretation goes against common sense, because our society operates under the rule of law, in which property rights must be documented.

4.  Under our Constitution, Congress has the exclusive power to manage and dispose of public lands and property (Article IV, Section 3: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States;"). In 1976 when Congress repealed the RS 2477 right-of-way granting process established 110 ten years earlier, it had the total power to do so. The federal land management agencies have no independent power or authority to give away RS 2477 roads to state or county governments, as they recently tried to do in Utah. Their only authority over public lands is what Congress delegates to them.  Public lands belong to all Americans, not just to the elite who live near them or the special interests that make money off of them.

5. RS 2477 rights-of-way do not rise to the level of property rights. They do not enjoy the same constitutional or legal protections as real property.  In cases where interpretations of RS 2477 conflict with the Constitutional protections of private property, the Constitutional protection takes precidence. 

6. Private property deeds convey a bundle of associated rights. These include the right to be secure on one's property.   This is a fundamental foundation of American society, and RS 2477 does not invalidate that right.  Anti-landowner activists who claim RS 2477 gives them an unrecorded right-of-way over private property simply do not understand our Constitutional protections.

7. RS 2477 assertions are called "claims." The term "claim" means that there a process which must be followed before the RS 2477 right-of-way is fully granted and valid. As common sense would suggest, it was not recorded by the county clerk before 1976, then no right-of-way exists.. The anti-landowner activists and some county government bureaucrats like to confuse the issue by saying that the word "claim" is not correct. . When someone tries to say this about RS 2477 claims, they are either confused or deceptive.  The burden of proof is on the person making the claim, not on the landowner.

8. Congress granted a right-of-way for the construction of highways.  When it used the word "highway", Congress meant "highway", not a mere road or trail. RS 2477 rights-of-way can only host a constructed highway, by definition. In most states, the legal definition of "highway" is the same as its common sense definition.  California is even more restrictive.  In California, if it is not publicly maintained, it's NOT a highway, by its very definition..  A highway is a major thoroughfare connecting major destinations. RS 2477does not apply to other kinds of public ways, such as carriage-ways, bridle-ways, footways, trails, bridges, railroads, canals, ferries or navigable rivers. Congress did not use those words.  If our lawmakers had wanted their law to apply to these entities, it would have said so.  In an era of common sense, Congress meant exactly what it said when it used the word "highway".

9. The present physical condition of a road is very important for determining if a right-of-way exists. Many roads that might have been eligable for RS 2477 status have been abandoned for more than a century.  This should be obvious, but this is the point on which the anti-landowner people are spreading the most misinformation. If a road is barely visible on the ground or has been obliterated for any other reason, the right-of-way has been vacated. A road cannot be established it as a public highway if it was never recorded as a right-of-way, unless a lawsuit is filed by a government entity . It follows, then, that it also is impossible to determine whether a valid right-of-way exists simply by looking at it. A right-of-way can only be determined by checking county records.  If it is not recorded, then it is not a legal  right-of-way.

10. A valid RS 2477 road could only be established by highway construction.  The mere passage of vehicles was not sufficient. The case law and federal policy for over a century are clear: construction by machinery is required to build an RS 2477 highway, just as the law clearly states. Anti-property-rights forces are actively trying to convince the public otherwise. Don't be misled.  Common sense is your best guide to understanding this law.

11. No private individual or orginazation can make an RS 2477 claim.  Only a government entity can make an RS 2477 claim, and must bear the burden of proof that an actual highway was constructed.  Due process must be followed, and just compensation must be paid, as required by the Constitution.  Only a court can determine the outcome.

12. The Federal Govrenment has the authority to close an alleged RS 2477 road for any reason. Only local governments have the right to make a claim over public land owned by all Americans, but they must show proof.  This follows logically, but many county government bureaucrats think they have more authority and try to act accordingly. When you run into one, point out the facts listed here and ask them to cite the legal authority by which they can make an RS 2477 claim.

In summary, there are special interest groups that have gone to great lengths to try to confuse the public about this simple and straightforward law.  Your best guide to recognize when you are being lied to or misled is to use common sense.  If you don't know what the words "highway" or "construction" mean, consult your dictionary, or ask a real estate attorney.