(RS) 2477 and Western lands

By Marjorie Haun
March 31, 2016

Several Western states, including Utah and Colorado, have been ground zero for state vs. federal government clashes over road closures by federal agencies, such as the Bureau of Land Management (BLM) and the U.S. Forest Service (USFS).  Closures of existing roads and trails can be due to seasonal conditions or repairs, but they are often arbitrary, hindering hikers, hunters, off-roaders, and sightseers from accessing public lands.

Last year, two elected officials from San Juan County, Utah, were fined nearly $100K and sentenced to brief stints in federal prison for taking part in a four-wheeler “freedom ride” on a trail in Recapture Canyon, which the BLM claimed was closed to motorized traffic.

County commissioner Phil Lyman and Monticello city councilman Monte Wells fought the federal government in court partly on the basis that the trail in Recapture Canyon is protected by Revised Statute-2477 (RS-2477) because it was built long before 1976, when the Federal Land Management and Policy Act (FLPMA) essentially gave Washington, D.C. control over public lands in the West not owned by the states or private interests.  

Although Lyman and Wells lost their battle against the feds in this case, other litigants and municipal authorities have used RS-2477 to successfully battle federal road closures on public lands.

RS-2477 is the federal law established in 1866 that authorized the construction of roads across federal public lands.  The purpose of RS-2477 was to help settlers in the West establish trade routes and build local roads and highways, as well as cut trails to access homesteads, mines, timber, and other essential resources.

A great deal of confusion has arisen because some mistakenly believe that the 1976 law, FLPMA, repealed RS-2477.  However, Section 701 of FLPMA states, “Nothing in this Act or any amendment made by this Act, shall be construed as terminating any valid right-of-way or other land use right or authorization existing on the date of approval of this Act.,” making it clear that all rights-of-way created prior to 1976 remain protected and accessible to the public.

Over the years, federal agencies, as well as private land holders, have illegally closed RS-2477 roads, stirring up controversies and conflicts in counties across the West.  Although both governmental and nongovernmental organizations have fought the feds using RS-2477, litigating against the federal government over road closures on public lands can be an onerous and costly process.

One attorney from Colorado is trying to turn the tables using RS-2477.  James Beckwith is an attorney specializing in road law and RS-2477.  With decades of experience under his belt, he has created a process using constitutional law and historical documents to fight the BLM and USFS when they close roads, making it impossible to access the public lands that purportedly belong to everyone. 

More than providing mere legal representation, Beckwith has created a process using historical surveyor plats, archived newspaper stories and photographs, county maps, land deeds, county road maintenance logs, previous petitions to vacate public rights-of-way, and other documentation to build a case for argument against federal road closures.

Numerous organizations such as Public Lands Access Association (PLAA), headquartered in western Colorado, are devoted to assisting complainants, which may be individuals or governing bodies, reopen disputed roads and trails.  The role of organizations such as PLAA is to research road history and formulate a documented body of evidence to prove that disputed rights-of-way are protected by RS-2477.

http://www.americanthinker.com/blog/2016/03/rs_2477_and_western_lands.html