Document Type

Article

Publication Date

2005

Abstract

The past decade has seen the D-4 Caterpillar bulldozer become a significant tool for those seeking to challenge federal land management agencies' authority to protect resources federal lands by reducing access. The power of the bulldozer is both symbolic and pragmatic. It cuts an iconographic image of local officials standing up against federal control over vast areas of land in the rural west. But it also, in many cases, provokes litigation, allowing claims to property rights to receive judicial attention that might otherwise evade them.

Underlying each of these protagonist's legal positions, if not their motivations, is a right-of-way grant enacted as part of the Mining Act of 1866: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” For 110 years, from its enactment in 1866 until its repeal in 1976, this obscure statute known as R.S. 2477 granted the right-of-way across unreserved federal public lands for the construction of highways. For most of its lifetime, the terse and obscure grant caused little stir, except for the occasional claim that now private lands are subject to R.S. 2477 rights-of-way established during earlier public ownership. Since its repeal, however, R.S. 2477 has become a flashpoint in the ongoing battle for control over western public lands and the resources they harbor. Throughout the west, states, counties, and even individuals and groups pushing for unrestricted motorized access to remote public lands are using R.S. 2477 to try to frustrate environmentally protective measures imposed by federal land managers. Some of these groups are seeking to establish R.S. 2477 highway claims in order to preclude the potential future designation of public lands for protection under the Wilderness Act of 1964.

An overlooked aspect of the R.S. 2477 controversy has been the allocation of responsibility among federal courts and federal land managers--specifically, the Department of the Interior (“DOI”)--for resolving disputed R.S. 2477 claims. Whether courts or federal land managers have primary authority to interpret and apply R.S. 2477 is more than a question of mere procedure or choice of forum. It is central to the ability of federal land management agencies to administer the obsolete land grant in a way that harmonizes the intent of the Congress that created it and the intent of Congresses that have since repealed the grant and mandated the management of public lands for various uses, including protecting their primitive condition. This Article argues that federal land management agencies should replace the courts as the institution with primary responsibility for resolving issues that arise from R.S. 2477 claims. In this view, DOI should be accorded the opportunity to interpret R.S. 2477 and to make an initial determination of the validity and scope of claimed R.S. 2477 rights-of-way. The judicial role, though still substantial, would be limited to that customary in administrative law cases, namely, the review of agency action for abuse of discretion and impermissible resolution of statutory ambiguities. Agency primacy would ensure the consistency and uniformity of R.S. 2477 decisions and, if the process is properly structured, ensure that the unique problems presented by this antiquated grant are, at long last, finally settled in a manner that both permits public participation and interpretation of R.S. 2477 in the proper context of the modern public land management regime.

Publication Citation

56 Hastings L.J. 523 (2005).