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Taming America’s Rogue Roads: Unsolved R.S. 2477 Claims in the Tenth Circuit and Beyond.

Taming America’s Rogue Roads: Unsolved R.S. 2477 Claims in the Tenth Circuit and Beyond.

Evan Baylor

The United States boasts some of the world’s most stunning vistas, picturesque landscapes, and diverse scenery. From the Green Mountains in Vermont to the mesas of Utah, many of the most pristine examples of America’s beauty are carefully managed and protected by the federal government.[1] However, these lands are under attack.

In the West, local governments are forging roads across federal public lands.[2] In Utah, well-over 10,000 roads traversing the public’s land have been claimed.[3] Utilizing rights-of-way created by a statute enacted over 150 years ago, and repealed over 40 years ago, these rogue roads are causing some serious problems.[4] Congress, land management agencies, and the judicial system have failed to resolve the growing issues.[5] Now, as the Tenth Circuit moves forward in yet another suit to resolve such claims, there is a chance to put into motion a real solution.[6] A solution that could not be timelier, as the Trump administration aims to open these lands up for business.[7]

            This Note will provide a brief history of Revised Statute 2477 (R.S. 2477), explore the relevant case law surrounding the issue in Utah, and explore solutions to resolve the numerous R.S. 2477 claims across the American West. Part I will explore the origin of R.S. 2477, its eventual repeal, and explain why it is the root of so much trouble today.[8] Part II will recount the relevant Tenth Circuit case law – representative of the broader, national issue. In particular, it will examine how the Kane County cases have failed to create a clear legal framework for resolution of claims.[9] Part III will explore the most recent case law to provide of view of where R.S. 2477 claims stand today. The Utah Supreme Court’s answer to the Tenth Circuit’s certified question places the ball back in the district court.[10] Part IV will explore how the Tenth Circuit should purse the construction of a legal framework to effectively and efficiently deal with future unresolved claims. Further, this Note will briefly survey various proposed solutions beyond the courts and advocate for Congressional action—direct or indirect—through reauthorization of federal agencies to address the claims.

            After years of uncertainty, the time has come to resolve the R.S. 2477 claims crisscrossing the American West and protect our public lands.

[1] Quoctrung Bui & Margot Sanger-Katz, Why the Government Owns So Much Land in the West, N.Y. Times (Jan. 5, 2016),

[2] Garfield Cty., Utah v. United States, No. 2:10-CV-1073, 2015 WL 1757194, at *1 (D. Utah Apr. 17, 2015), certified question answered sub nom. Garfield Cty. v. United States, 2017 UT 41 (“The litigation encompasses more than 20 different cases (“R.S. 2477 Road Cases”) now pending in federal court, involves approximately 12,000 roads, and impacts most areas of the State.”).

[3] Id.

[4] Mining Act of 1866, ch. 262, 14 Stat. 251, repealed by Federal Lands Policy and Management Act of 1976, Pub. L. No. 94-579, § 706(a), 90 Stat. 2744, 2793 (1976) (codified at 43 U.S.C. §§ 1701-1782 (2000)); R.S. 2477, 43 U.S.C. § 932 (1938).

[5] U.S. Dep’t of the Interior and Related Agencies’ Appropriations Act, § 108 (1997), enacted by the Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (stating that “No final rule or regulation of any agency of the Federal Government pertaining to the . . . validity of a right-of-way pursuant to Revised Statute 2477 . . . shall take effect unless expressly authorized by an Act of Congress subsequent to the date of enactment of this Act.”).

[6] Garfield Cty., Utah, 2015 WL 1757194, at *1.

[7] Juliet Eilperin, Shrink at least 4 national monuments and modify a half-dozen others, Zinke tells Trump, Washington Post (Sept. 17, 2017),…9/17/a0df45cc-9b48-11e7-82e4-f1076f6d6152_story.html?utm_term=.4bf43a217653.

[8] See 43 U.S.C. §§ 1769(a) (2006) (reporting that the repeal of R.S. 2477 did not terminate existing right-of-ways issued prior to the act); See Regulations Governing Rights-of-Way for Canals, Ditches, Reservoirs, Water Pipe Lines, Telephone and Telegraph Lines, Tramroads, Roads and Highways, Oil and Gas Pipe Lines, Etc., 56 Interior Dec. 533, 551 (1938) (stating that without any sort of recordation of claims, it is incredibly difficult to determine what rights were established prior to the 1976 repeal).

[9] Wilderness Soc’y v. Kane Cty., Utah, 560 F. Supp. 2d 1147, 1154-55 (D. Utah 2008); The Wilderness Soc’y v. Kane Cty., Utah, 581 F.3d 1198, 1210 (10th Cir. 2009); The Wilderness Soc’y. v. Kane Cty., Utah, 632 F.3d 1162, 1183 (10th Cir. 2011); Kane Cty., Utah v. United States, 772 F.3d 1205, 1209 (10th Cir. 2014).

[10] Garfield Cty., Utah, 2015 WL 1757194, at *1..

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