RS 2477 myth buster

Your guide to refuting the most common myths about RS 2477


Special interest groups--including the motorized recreation industry--are spreading myths about Revised Statute 2477.  These anti-landowner groups are inconvienced by the Constitutional protection for our private property rights and have created their own bizarre re-inpretation of the 1866 mining law in an attempt to open up private property for public motorized recreation.  In case after case, our juducial system has upheld the Constitutional protections that form the basis of our society.  Nevertheless, the off-road recreation establishment persists in spreading misinformation about RS 2477 and its impact on private property.  Here are some of their favorite myths.


MYTH #1:  "RS 2477 is arcane, and difficult to understand and interpret."

The law is in fact very simple, consisting of only 20 words: "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted."  Special interests have attempted to confuse the public by making something very complicated out of something very simple.


MYTH #2:  "RS 2477 rights-of-way can exist over private property."

This interpretation is unconstitutional and would never pass muster in any court.  RS 2477 states very clearly that it is for construction of highways over public lands.   If such a grant was recorded prior to the creation of the private property, then an exception would have been recorded on the property deed, and a title search would turn it up.  Off-road clubs often use this myth as an excuse to trespass and tear down gates.


MYTH #3:  "The term 'highway' is broad ranging."

In fact, when Congress used the word highway it meant "highway".  If lawmakers had meant the law to apply to footpaths, carriage ways, bridle ways, or rivers, it would have used those words.  A highway is a major thoroughfare that is part of a transportation network.  Nobody with any common sense would confuse a footpath with a highway.


MYTH #4:  "Constructing a road or trail can refer to the periodic passage of foot or animal traffic."

This actual statement has been made with a straight face by members of the off-road recreation establishement.  By this definition, deer and antelope were engaged in "highway construction" long before our nation was founded.  When Congress referred to "highway construction" they intended the term to be interpreted by people with common sense.


MYTH #5 "Congress specifically and clearly reaffirmed the validity and intent of RS 2477 in 1976."

Actually, Congress repealed RS 2477 in 1976.   This myth was created by people with utter contempt for the public's ability to learn the facts.


MYTH #6 "It is legally incorrect to call RS 2477 assertions 'claims.'"

This myth was created to give off-road recreationists an excuse to trespass.   The acts of trespassing  are referred to as an "assertion of  rights" .  In reality, it is up to the person making the claim to prove that the right-of-way exists in law.


MYTH #7: "A valid RS 2477 road can be established merely by the passage of vehicles."

The word "construction" does not mean "passage of vehicles".  RS 2477 only granted rights-of-way for highway construction, not for passage of off-road vehicles.  This is a common myth that off-road recreationists have created as an excuse to drive cross-country.


MYTH #8: "No federal land management agency can determine the validity of an RS 2477 assertion."

Federal land management agencies are responsible for rights-of-way across federal land.  Typically, the federal agencies maintain the historical records that are required to determine the validity of an RS 2477 claim.


MYTH #9:  "No federal agency has the authority to close an RS 2477 road for any reason."

Rights-of-way that are owned by the federal agency can be closed by the federal agency.  They must follow legal proecedures to close a road, but it is within their authority to close roads for environmental protection or other valid reasons.


MYTH  #10 "RS 2477 was a self-executing law."

There was always a strong burden on the grantee to prove that highway construction was carried out over public lands not otherwise reserved for public use.  This is consistent with other laws. The federal government has never simply given away the land that belongs to all American citizens..  Homesteaders have always been required to "prove up" their homestead.  Prospecters have always had to file surveys and get assays before being awarded claims and patents.  Likewise, counties or states claiming RS 2477 rights-of-way must show records of highway construction before before a grant can be made to transfer ownership.  Again, common sense prevails.





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