HISTORY AND ISSUE: BRIEFING PAPER R.S. 2477 RIGHTS OF WAY Congress enacted, in 1866, a grant of rights of way for the "construction of highways" over unreserved public lands. The grant was enacted as Section 8 of the Mining Act of 1866, and later became Section 2477 of the Revised Statutes (R.S. 2477). The enactment in 1976 of the Federal Land Policy and Management Act (FLPMA) repealed this section but protected valid existing rights. "And be it further enacted, That the right of way for the The majority of the United States' western states are founded on property acquired by the Federal Government subsequent to this country's establishment. In the late 1800's the western territories, now the "public lands" states, were still largely unsettled. To encourage settlement and development of the land, and to resolve substantial concerns regarding trespass on Federal property, the Federal Government enacted R.S. 2477. The provision guaranteed that access across the territories, and to inholdings, would be provided as the land remained Federal property, or was transferred to state or private ownership. Because the characteristics of usage and conflict resolution differed so greatly between what is now North Dakota and California, state and local law was left to provide the details regarding the terms of and acceptance of the grant. Under this authority, rights of way were still being created, and thereby granted, under R.S. 2477 until its repeal by FLPMA in 1976. In turn, FLPMA established new procedures for the creation of new rights of way. To this day R.S. 2477 rights of way, some developed into major highways and others still horse or dogsled trails, provide vital means of access across Federal, State and private properties. It is not disputed that R.S. 2477 rights of way, and the confidence placed on the durability of access they provide, played a significant role in the exploration, settlement and social, economic and political development of the West. R.S. 2477 rights of way are an issue now due to recent efforts in Congress to enact legislation which would require each right of way to R.S. 2477 RIGHTS OF WAY - Page 1 be called into question and Federally validated. Prompting the legislation are interests critical of the lack of uniformity among local validation processes, contention over the definition of 'highway', and 'construction', as they apply to those processes, and the belief that rights of way created since FLPMA will be asserted in those same processes. Three separate efforts to pass this legislation in the 102nd Congress have failed, but language was enacted that required a study to be conducted on RS 2477; and a report issued by May 1993. That study is under way by the Bureau of Land Management. STATE OF ALASKA'S VIEW: Most of Alaska's great expanse is Federal property, and was settled profoundly with the use of and dependence upon the transportation and access grants provided by R.S. 2477. The State, local governments and private property holders all have become vested in those property rights, especially because they were relied upon in subsequent land selections, land acquisitions and property development. There exists today no satisfactory alternative to create new rights of way in Alaska. Processes created by nation-wide and Alaska specific land management legislation have served to discourage rather than encourage the development of rights of way. Because this is the case, maintenance of existing R.S. 2477 grants is especially imperative. A recent report authored by Pamela Baldwin of the Congressional Research Service discusses the case that a federal process should be established to subsume the state processes regarding delineation and validation of R.S. 2477 rights of way. A new federal process, however, would create an additional bureaucracy and place a difficult burden of proof on those who have put confidence and reliance on existing local processes. Congressional intent and Federal Case Law both have recognized that R.S. 2477 rights of way were a standing offer by the Federal Government, requiring only public use and acceptance. This recognition, that R.S. 2477 is a matter of state law, is affirmed by a 1988 administrative decision of the Department of the Interior. The existing body of law and procedure, evolved over more than a century, is perfectly capable of protecting the interests of all concerned, including the Federal Government. The changes mandated by the legislation would create significant additional burdens on non-Federal parties, require substantial increases in Federal appropriations, and engender confusion and needless conflict without improving land management in the western states. This legislative proposal is without foundation that any environmental harm is created by the proper use of valid R.S. 2477 right of ways, or that any environmental benefit will be created by application of such a Federal process. The standard that the local law would affirm what constituted an R.S. 2477 right of way is the accepted practice. More significant is the fact that this is the standard under which State, local and Native Corporation land selections have been made, and patents applied for and perfected. To validate its R.S. 2477 rights of way, the State of Alaska has adopted an extensive regulatory program to nominate and identify existing, valid R.S. 2477 rights of way. The regulatory process the State of Alaska has adopted provides a fair method for determining whether R.S. 2477 rights of way are valid. The regulations neither attempt nor allow the establishment of new rights of way. The State of Alaska will only affirm the irrevocable property rights established under R.S. 2477, based on documented historical use, prior to October 22, 1976. The evaluation process established in 11 AAC 51 affords everyone, federal agencies, state agencies, private property owners and members of the public, a voice and a role in each determination. R.S. 2477 RIGHTS OF WAY - Page 3 Mr. THOMAS. And Mr. Smith has a statement. Mr. VENTO. Without objection, his statement will be put in the record. [The information follows:] STATEMENT OF CONGRESSMAN ROBERT F. (BOB) SMITH Mr. Chairman, sometimes those of us on this side of the aisle feel like Bill Murray in the recent movie "Groundhog Day," which is a story of a man who was forced to live the same day over and over again. Every Congress we have to wake up and go through the futile hearing process on a BLM reauthorization bill that will never become law. It's the same old story every Congress. The Chairman rams this bill through the House, and the Senate kills it. Whereas "Groundhog Day" was a comedy, the bill we will be hearing today is a tragedy for those of us from states, that unlike Minnesota, have a significant amount of land owned by the BLM. This is a buffer zone bill, plain and simple. And because this bill requires buffer zones around conservation system units, I want to review the areas in Oregon that may be impacted. The BLM already controls over one-quarter of my state. We have 2.1 million acres of wilderness, 1,800 miles of wild and scenic rivers, 200,000 acres of National Parks, 430,000 acres of National Recreation Areas and several hundred miles of national trails. This bill would place buffer zones around these so-called conservation system units areas. It's equivalent to drawing lines around the 10,000 lakes in Minnesota and placing them off-limits to everything. It's a not-so-very clever way to expand the federal domain and turn the BLM from a multiple-use agency into a single-use agency. Let me talk for a moment about two other sections in this bill. This bill establishes an Organic Act for National Conservation Areas. In the two previous Congresses, I've introduced legislation to establish an NCA at Steens Mountain in eastern Oregon. The language in HR 1603 would make a Steens NCA totally unworkable. An NCA would just be a code name for a National Park. Finally, Oregon already has the largest number of recognized RS 2477 right-ofways. We don't want or need the proposed unfair and expensive process to investigate and adjudicate rights of way claimed under RS 2477 that is called for in this bill. I urge this Committee to report a simple 8-line reauthorization. Going through this exercise again is not in anyone's interest. Thank you. Mr. THOMAS. I have a couple of questions. We have been on this issue long enough. I am a little confused. You speak of permits to use roads and so on. Do you see a right-of-way as a property right? Mr. SIMON. I believe the grant is for the use of the existing type of use, character of use, that is ongoing. Mr. THOMAS. Rights-of-way, I think, are property rights, are they not, granted by the State prior to 1976? Mr. SIMON. I don't believe they are granted by the State, Congressman. Mr. THOMAS. By the United States. Mr. SIMON. By the United States? Not being a property rights lawyer, I don't want to get into deep water on this issue Mr. THOMAS. You used the words, permit and right-of-way, interchangeably, and it seems that there is quite a bit of difference. Mr. SIMON. It is certainly true that none of the legal guarantees that would be afforded a local government or private claimant would kick in unless the claim has been validated. So there is at least a point where the claim becomes something more than that. Mr. THOMAS. Ms. Shogan, did your organization represent wilderness? MS. SHOGAN. Southern Utah Wilderness Alliance. Mr. THOMAS. And you are here all the time. Ms. SHOGAN. All the time. Unfortunately. Mr. THOMAS. That is interesting. And your group drafted these R.S. 2477 provisions? Ms. SHOGAN. Our three suggestion for the bill today? Yes. Mr. THOMAS. And there seems to be some difference of view about them. Did you consult with local governments on these? Ms. SHOGAN. We are in daily contact with local governments. We have eight employees in the State of Utah. Mr. THOMAS. Did you have a contact on this issue in any sort of agreement. Ms. SHOGAN. On R.S. 2477? Daily basis. We have been involved in the Burr Trail case for a number of years. Mr. THOMAS. You are coming here with ideas about hopefully coming together with a solution. Did you have any contact with anyone looking for something you might find a common interest in? Ms. SHOGAN. We have been open to discussion for a number of years. Mr. THOMAS. Okay. Thank you. Mr. VENTO. The point is, you were talking about her draft of her testimony, not the bill, Mr. Thomas? Mr. THOMAS. I am talking about the bill. You didn't participate in the drafting of this section of the bill? Ms. SHOGAN. No. What I said was, I drafted our three suggestions for the R.S. 2477. I had nothing to do with the bill. Mr. VENTO. Not directly. But I thought there was maybe a little misunderstanding. Thank you all very much for your testimony. We appreciate it. PANEL CONSISTING OF GEORGE LEA, PRESIDENT, PUBLIC LANDS FOUNDATION; CATHY CARLSON, LEGISLATIVE REP. RESENTATIVE, PUBLIC LANDS AND ENERGY DIVISION, NATIONAL WILDLIFE FEDERATION; NANCY GREEN, DIRECTOR, BLM PROGRAM THE WILDERNESS SOCIETY; AND CONSTANCE E. BROOKS, ESQ., DENVER, CO Mr. VENTO. Let me ask for the next panel. Changing places, we have George Lea, Public Lands Foundation; Ms. Cathy Carlson, National Wildlife Federation; Nancy Green, The Wilderness Society; and, finally, Ms. Connie Brooks from Denver, Colorado, a citizen, witness. Your statements have been made a part of the record, and I would like you to summarize your statements in five minutes. And I know that is difficult, given the time that you spent on these and the work that you have given and the breadth of the bill. But, hopefully, we will get through some of the questions and be able |