Proposed Legal Scheme for Resolving R.S. 2477 Right-of-Way Claims

Copyright 2015 Nati N. Zongo
Environmental Law Seminar: Federal Land Management
Are We There Yet?: The Quest For
An Effective Legal Scheme For R.S.
2477 Right-Of-Way Claims
Resolution
Nati Nadia Zongo
4-20-2015

1
INTRODUCTION .......................................................................................................................... 2
PART I: HISTORICAL UNDERPINNINGS................................................................................. 3
A. Background......................................................................................................................... 3
B. The Interpretative Issues of the R.S. 2477 Statutory Language ......................................... 6
PART II: A SURVEY OF R.S. 2477 JURISPRUDENCE............................................................. 9
A. The Tenth Circuit’s Approach ............................................................................................ 9
1. Southern Utah Wilderness Alliance v. Bureau of Land Management ....................... 10
2. Subsequent Development: Wilderness Society v. Kane County................................ 11
B. The Ninth Circuit’s Approach .......................................................................................... 12
C. The Problems With Each Approach ................................................................................. 14
1. The Tenth Circuit’s Posture........................................................................................ 14
2. The Ninth Circuit Somewhat Federal Law Approach................................................ 17
Part III: SUITABLE LEGAL SCHEMES FOR RESOLVING R.S. 2477 CONFLICTS ............ 18
A. Plan A: Legislative Action................................................................................................ 19
1. Congress Must Authorize DOI to Adjudicate R.S. 2477 Cases ................................. 19
2. Congress Must Lift the Prohibition on DOI Rulemaking Concerning R.S 2477....... 23
3. DOI Must Promulgate Rules ...................................................................................... 24
a. Defining R.S. 2477 Pertinent Terms....................................................................... 25
b. Filing and Recordation Requirement...................................................................... 27
c. Burden of Proof and Evidentiary Requirement ...................................................... 28
B. Judicial Repositioning....................................................................................................... 29
1. Reversing SUWA II In-Part ....................................................................................... 29
2. Reshaping the State Law Standard ............................................................................. 31
CONCLUSION............................................................................................................................. 32

2
INTRODUCTION
As part of the Mining Act of 1866, the United States Congress adopted a provision which
stipulated that “the right of way for the construction of highways over public lands, not reserved
for public uses, is hereby granted.”1
States widely perceived this piece of legislation, also known
as Revised Statute 2477 (R.S. 2477), as an unequivocal bestowal of property rights within the
limits of the statutory language.2
In 1976, Congress repealed R.S. 2477 through the Federal Land
Policy and Management Act (FLPMA), but included a “grandfather” clause in FLPMA, which
stated that “nothing in this title shall have the effect of terminating any right-of-way or right-of-
use heretofore issued, granted or permitted.”3
In essence, FLPMA effectively ended an era of
liberal land grants by the United States government and placed the country on a path of public
land conservation.4
However, the “grandfather” clause of FLPMA continue to proliferate
significant controversies over the validity and scope of numerous claims of R.S 2477 rights.”5
Various stakeholders such as local governments and environmental protection groups
have subsequently rushed to court to determine the existence of R.S. 2477 claims, causing the
federal courts to face difficulties ascertaining the proper legal framework to resolve the issues
1
Mining Act of 1866, ch. 262, § 8, 14 Stat. 251, repealed by Federal Land Policy and
Management Act of 1976, Pub. L. No. 94-579, § 706(a), 90 Stat. 2744, 2793 (codified at 43
U.S.C. §§ 1701-82 (2000)).
2
See Barbara G. Hjelle, Ten Essential Points Concerning R.S. 2477 Rights-of-Way, 14 J.
ENERGY NAT. RESOURCES & ENVTL. L. 301, 304 (1994).
3
43 U.S.C. § 1769 (a) (2000); see Jacob Macfarlane, How Many Cooks Does It Take to Spoil A
Soup?: San Juan County v. U.S. and Interventions in R.S. 2477 Land Disputes, 29 J. LAND
RESOURCES & ENVTL. L. 227, 229 (2009).
4
Id.
5
See Andrew Stone, The Road Ahead: R.S. 2477 Right-of-Way Claims After Wilderness Society
v. Kane County, Utah, 12 VT. J. ENVTL. L. 193, 198 (2010) (noting that the seeds of
controversy were sown with the adoption of this FLPMA provision).

3
involved.6
The view that state property law should be used to determine the validity of R.S. 2477
right-of-way claims has emerged as the dominant approach.7
This paper argues that the
resolution of R.S. 2477 claims using state law carries the likely side effects of interfering with
FLPMA’s objectives, and should be rejected for a congressional action that authorizes the
Department of Interior (DOI) to adopt uniform federal regulations to determine R.S. 2477 claim
validity, or should be judicially modified to allow preemption where there is a conflict between
state property law and FLPMA’s purpose.8
Specifically, Part I of this paper will offer the
necessary background to understand the current status of R.S. 2477 controversies. Part II will
present an analysis of the current law governing R.S. 2477 right-of-way claims, and Part III will
propose more suitable alternative legal standards for determining R.S. 2477 right-of-way claims.
PART I: HISTORICAL UNDERPINNINGS
A. Background
In its early years, the United States favored a policy that encouraged expansion toward
the west of the country.9
To that regard, the federal government not only engaged in generous
land grants, it rarely interfered with access across federal lands. Congress confirmed its liberal
stand on expansion in 1866 when it passed the Mining Act, conferring, among other things,
6
Douglas P. Farr, Protecting Public Lands from the Public: Kane County and Revised Statute
2477, 2010 B.Y.U. L. REV. 67, 70 (2010).
7
See Lindsay Houseal, Wilderness Society v. Kane County, Utah: A Welcome Change for the
Tenth Circuit and Environmental Groups, 87 DENV. U. L. Rev. 725, 727 (2010); see also S.
Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 759 (10th Cir. 2005), as
amended on denial of reh'g (Jan. 6, 2006) (providing various reasons as to why using state law
to interpret the R.S. 2477 provision is an appropriate route) (hereinafter SUWA II); Mitchell R.
Olson, The R.S. 2477 Right of Way Dispute: Constructing A Solution, 27 Envtl. L. 289, 298
(1997).
8
See infra Part III.
9
GEORGE C. COGGINS, CHARLES F. WILKINSON, JOHN D. LESHY, ROBERT L. FISHMAN, FEDERAL
PUBLIC LAND AND RESOURCES LAW 360 (Foundation Press, 6th ed. 2014).

4
extensive right-of-way rights over public lands for the “construction of highways.”10
The right-
of-way grant, known as R.S. 2477, remained a self-executing provision.11
That is, a claimant
could establish a R.S. 2477 right-of-way without any formalities such as an application with DOI
or the receipt of a deed.12
Years later, in 1890, the Supreme Court echoed this sentiment of
permissive access across federal lands in Buford v. Houtz where it stated that “the public lands of
the United States …shall be free to the people who seek to use them, where they are left open
and unenclosed.”13
However, around the time of the Buford decision, came the realization to some that
westward colonization stood at its final stages.14
In addition to extraordinary population and
economic growth, the “unsettled area [had] been so broken into by isolated bodies of settlement
that there can hardly be said to be a frontier line.”15
Consequently, the policy championing
expansion began to subside while a growing conservation movement seized momentum. This
shift in governmental policy concerning the management of public lands culminated in the
passage of FLPMA in 1976.16
In its declaration of policy, FLPMA expressly requires that “the public lands be retained
in Federal ownership, unless as a result of the land use planning procedure provided for in this
Act, it is determined that disposal of a particular parcel will serve the national interest.”17
Moreover, the act directs the secretary of interior to regulate the use of the retained federal lands
10
Id.
11
Stone, supra note 5, at 194.
12
See Sierra Club v. Hodel, 848 F.2d 1068, 1078 (10th Cir. 1988) (Hereinafter Hodel).
13
Buford v. Houtz, 133 U.S. 320, 326, 10 S. Ct. 305, 307(1890).
14
COGGINS ET AL., supra note 9, at 108.
15
Id.
16
See Bret C. Birdsong, Road Rage and R.S. 2477: Judicial and Administrative Responsibility
for Resolving Road Claims on Public Lands, 56 HASTINGS L.J. 523, 529–30 (2005).
17
43 U.S.C. § 1701(a) (2000).

5
to prevent “unnecessary or undue degradation … subject to valid existing rights”18
Thus,
FLPMA repealed R.S. 2477 but preserved rights to R.S. 2477 claims perfected before the
effective date of the statute.19
In turn, this new regime ended an age of negligible R.S. 2477
controversy and served as a catalyst for an unprecedented number of claimants seeking to have
their claims recognized as valid existing rights covered by FLPMA’s exemption.20
Another impetus to seek right-of-way recognition was clear: a valid R.S. 2477 claim on
public lands significantly limited DOI’s ability to designate certain areas as Wilderness Study
Area since FLPMA specifically instructs the Secretary of the Interior to identify all “those
roadless areas of five thousand acres or more and roadless islands of the public lands … having
wilderness characteristics … [and study] the suitability or nonsuitability of each such area or
island for preservation as wilderness”21
Albeit the lack of definition of “road” or “roadless” for
the purposes of this provision, R.S. 2477 claimants argue that the presence of a valid R.S 2477
right in an area is undoubtedly a “road” that automatically disqualifies the area for
preservation.22
For example, advocates of expansive off-road vehicle activity in California
continue to assert R.S. 2477 claims in the Mojave National Preserve, which hinders NPS’s
ability to protect the area as wilderness by restricting off-road vehicle travel.23
Upon DOI’s
identification of a Wilderness Study Area, FLPMA requires DOI to manage the area as to protect
its wilderness characteristics while the area is being considered for designation as Wilderness.24
18
Id. §1712(c).
19
Birdsong, supra note 16, at 529.
20
Id. at 530.
21
Id.; 43 U.S.C. § 1782(a) (2000) (emphasis added).
22
Michael S. Freeman, Lusanna J. Ro, R.S 2477: The Battle over Rights-of-Way on Federal
Land, 32 OCT COLO. LAW 105, 108 (2003).
23
Id.
24
Id.

6
R.S. 2477 claimants, to avoid strict land preservation regulations, simply assert the existence of
R.S. 2477 highways and attack the validity of the applicable Wilderness Study Area designation,
alleging that it lacks the “roadless” element.25
B. The Interpretative Issues of the R.S. 2477 Statutory Language
R.S. 2477 disputes stem from the self-executing nature of the statute which, devoid of
any requirement that rights holder register their claims with DOI, led to a complete lack of
record of the number, location, and breadth of R.S. 2477 right-of-way claims that existed before
the passage of FLPMA.26
Therefore, the issues concerning R.S. 2477 claims can be fairly divided
into either issues of claim validity, which primarily deal with determining whether there existed
a vested right-of-way prior to FLPMA, or issues of claim scope that focus on the extent to which
a valid claim may be enlarged or improved.27
Construction of the statutory language “the
construction of highways across public lands, not reserved for public uses” remains at the center
of both the validity and scope issues.28
There are three main interested parties to the current R.S. 2477 battle: DOI29
, states and
their local governments, and environmental groups.30
Perhaps the only consensus between these
constituent groups, also endorsed by the courts, is that to qualify as an existing R.S. 2477 right-
of-way, there must have been the construction of a highway on unreserved public land before
25
See id.
26
27
COGGINS ET AL., supra note 9, at 370.
28
Houseal, supra note 7, at 727.
29
For simplicity, DOI will be used throughout this paper as a representation of all its agencies in
which federal lands are entrusted, the Bureau of Land Management (BLM), the National Park
Service (NPS), the Fish and Wildlife Service (FWS), and the Forest Service (USFS) from the
Department of Agriculture (DOA).
30
See Houseal, supra note 7, at 727.

7
FLPMA. However, the meanings of “unreserved public land,” and particularly, “construction”
and “highway,” stay vigorously contested.31
States and local government tend to favor a broad construction of the R.S. 2477 grant
strictly derived from state law.32
They argue that a rigid interpretation of R.S. 2477 will either
eliminate or substantially limit their “freedom of movement,” which in turn threatens their
economic livelihood in many instances.33
A construction of R.S. 2477 language based on state
law provides states with the opportunity to fashion their property laws in ways that would result
in an interpretation of R.S. 2477 that aligns with states’ interests.34
Thus, many states have
amended or “clarified” the meaning of “highway” to include “any section line”35
or less
expansive definitions such as “a thoroughfare, be it a footpath or road, used by the public for a
specified period of time.”36
With respect to the meaning of “construction,” states and local
government argue that a beaten path or the removal of high vegetation or rocks meets the
definition.37
Also, the meaning of “public lands, not reserved for public use” is not left
unchallenged.38
States support a narrow meaning of the term, proposing that “reserved lands are
those that have been withdrawn or dedicated for a more particular purpose, such as a National
Park or Indian Reservation”39
31
See id.
32
Id.
33
Michael J. Wolter, Revised Statutes 2477 Rights-of-Way Settlement Act: Exorcism or Exercise
for the Ghost of Land Use Past?, 5 Dick. J. ENVTL. L. & POL'Y 315, 323–25 (1996).
34
See Birdsong, supra note 16, at 538.
35
States such as Alaska, South Dakota and North Dakota have passed statutes that espouse this
view. See Birdsong, supra note 16, at 538.
36
This is the view of states such as Utah, Oregon, and Wyoming. See Birdsong, supra note 16, at
538; Houseal, supra note 7, at 728.
37
38
Id.
39
Id.

8
On opposite ends, environmental groups, armed with a strong reasoning that broad grants
of right-of-ways will negatively impact the environment on many levels, argue for a narrow
meaning of “highway” and “construction” and a wide reach for “public lands, not reserved for
public use.”40
Environmental groups contend that a “highway” should be limited to those roads
that are vehicular in nature and “connect towns or cities.”41
They also hold that “construction”
can only be established by an actual “mechanical construction” of the road.42
As for the meaning
of “public lands, not reserved for public use,” environmental groups maintain that so long as the
land is “set aside for any specific public purpose by the federal government it should be exempt
from R.S. 2477 claims”43
While states and environmental advocates have faithfully adhered to their respective
construction of the R.S. 2477 statutory language, DOI’s posture on the interpretative issue has
vacillated throughout the years, each stance being closely related to the political landscape at the
time.44
For instance, in 1989, BLM defined highway as “a definite route or way that is freely
open for all to use, not necessarily opened to vehicular traffic for a pedestrian or pack animal
trail,” and construction as “removing high vegetation, moving large rocks out of the way, or
filling low spots … or road maintenance, or the passage of vehicles by users over time.”45
In
1996, BLM took a more stringent position that can be summarized with the following excerpt
from its proposed regulation of R.S. 2477 claims:
Construction means an intentional physical act or series of intentional physical acts that
were intended to, and that accomplished, preparation of a durable, observable, physical
modification of land for use by highway traffic. . . Highway means a thoroughfare that is
40
Id. at 728–30.
41
Id. at 728.
42
Id. at 729; see SUWA II, 425 F.3d 735.
43
Houseal, supra note 7, at 729
44
See id. at 728; Hjelle, supra note 2, at 309–12.
45
BLM Manual, Rel. 2-263 S 2801.48.B.1 (March 8, 1989).

9
currently and was prior to the latest available date used by the public, without
discrimination against any individual or group, for the passage of vehicles carrying
people or goods from place to place.46
In short, depending on the political party in the White House, BLM at any given time was either
more in line with the states’ position or that of environmental groups.
Although R.S. 2477 claim validity issues predominate most cases, R.S. 2477 claim scope
issues remain an area of contention.47
There exist two competing views. The first view is that
R.S. 2477 claims are frozen in time and cannot be extended to accommodate modern
exigencies.48
The second view, embraced by the Tenth Circuit in Sierra Club v. Hodel and
SUWA v. BLM, is that the scope of existing R.S. 2477 right-of-way goes to the “extent necessary
to meet the needs of increased travel, in the light of traditional uses to which the right-of-way
was put.”49
With much of the debate centered on whether state law should drive the meaning of
the statutory language or whether uniformity should be sought through federal legislation, the
need for a shift in legal procedure could not be greater.50
PART II: A SURVEY OF R.S. 2477 JURISPRUDENCE
This section is confined to the Tenth and Ninth Circuits where the overwhelming majority of
purported R.S. 2477 claims are located.51
A. The Tenth Circuit’s Approach
46
59 Fed. Reg. 39,225 (Proposed Regulation 43 C.F.R. SS 39.3 (e), (f)).
47
See Birdsong, supra note 16, at 531
48
This is the view taken by Sierra Club in Sierra Club v. Hodel. See Hodel, 848 F.2d 1068.
49
See id., at 533–34; SUWA II, 425 F.3d at 1084–85.
50
See infra part III.
51
See JAMES R. RASBAND, JAMES SALZMAN & MARK SQUILLACE, NATURAL RESOURCES LAW
AND POLICY 140-41 (Foundation Press, 1st ed. 2004).

10
1. Southern Utah Wilderness Alliance v. Bureau of Land Management52
President Clinton’s designation in 1996 of Utah’s Grand Staircase-Escalante as a
National Monument under the Antiquities Act created a firestorm in Utah.53
Clothed with the net
effect of limiting many activities on the designated area, rural residents feared the loss of rights
to use the land.54
Affected counties, led by San Juan, Kane and Garfield counties, dispatched
construction crews to carve out and grade a total of 16 roads, most of which crossed the Grand
Staircase-Escalante National Monument and some crossing a nearby Wilderness Study Area.55
The counties claimed the roads as R.S. 2477 right-of-way property rights.56
The Southern Utah Wilderness Alliance (SUWA), stressing that the counties’
construction activities jeopardized the wilderness area, repeatedly urged BLM to take action.57
With BLM failing to do so, SUWA sued the agency and the counties; the chief complaint being
that the counties’ R.S. 2477 claims were invalid.58
BLM in turn filed cross-claims against the
counties alleging trespass and violation of FLPMA.59
The district court stayed the suit on the basis that BLM must first make a determination
of validity and scope for the counties’ R.S. 2477 claims.60
Upon a lengthy investigation, BLM
52
This is the leading case in the Tenth Circuit dealing with R.S. 2477. The case took over nine
years to conclude and the Court’s opinion covers a lot of ground about the interplay between
federal public land law and state property law. See generally SUWA II, 425 F.3d 735 (J.
McConnell providing a thorough factual background of the case)
53
RASBAND, ET AL., supra note 44, at 1032-33
54
S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 147 F. Supp. 2d 1130, 1133 (D. Utah
2001) (Hereinafter SUWA I).
55
SUWA II, 425 F.3d at 742
56
Id.
57
Id.
58
Id.
59
Id. at 742–43.
60
See SUWA I, 147 F. Supp. 2d at 1133.

11
concluded that all but one of the counties’ claims were invalid.61
Moreover, BLM decided that
the valid claim exceeded its scope.62
The district court upheld BLM’s decision based on agency
deferential standard of review.63
The counties appealed.
The Tenth Circuit’s holding contains three elements. First, the court held that BLM
lacked primary jurisdiction to decide disputes over R.S. 2477 claim validity.64
The court
explained that primary jurisdiction only applies when Congress has expressly assigned the
resolution of an issue to a specific administrative agency.65
Second, the court stated that holders
of valid R.S. 2477 claims are required to consult with BLM to determine the scope of their claim
before initiating any improvement on the right-of-way.66
To support this holding the court stated
that Utah’s law on easements required that the easement holders and the owners of servient
estates cooperate so as not to infringe on each other’s rights.67
Third, the court held that “federal
law governs the interpretation of R.S.2477 but in determining what is required [to establish a
valid existing right-of-way], federal law borrows from long established principles of state law.”68
Citing numerous state courts’ decisions and relying on a choice of law test presented in Wilson v.
Omaha69
, the Court found that borrowing state law served the objectives of R.S. 2477.70
2. Subsequent Development: Wilderness Society v. Kane County
61
SUWA II, 425 F.3d at 743.
62
Id.
63
64
65
Id. at 750–51.
66
Id. at 748.
67
Id.
68
Id. at 768.
69
Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979).
70

12
In a more recent case regarding R.S. 2477 claims, Wilderness Society v. Kane County71
,
the Tenth Circuit held that counties cannot engage in “unilateral management” of alleged R.S.
2477 roads without first determining the validity of the R.S. 2477 claims where there is a conflict
with DOI management plans.72
Essentially, the court found that claimants must first litigate and
confirm validity of their R.S. 2477 claims before asserting an R.S. 2477 defense against DOI.73
Although this case does not overturn SUWA II, it signals a significant departure from SUWA II,
which appeared to support a presumption of claim validity until rebutted in court.74
In fact, Judge
McConnell, the author of the SUWA II decision, filed a vehement dissent arguing that the simple
language of “preserving valid existing rights” precludes a preemption of state law argument.75
In summary, Tenth Circuit jurisprudence in the resolution of R.S. 2477 claims
encompasses the following features: 1) claim validity must be determined in court, 2) DOI can
make a determination of claim scope, 3) state law provides the meaning of the R.S. 2477
statutory language, and 4) where claims have yet to be proven valid, federal management plans
preempts state or local laws.
B. The Ninth Circuit’s Approach
Although the Ninth Circuit has not expressly held that federal law governs the resolution
of R.S. 2477 claims, it has declined to use state law to decide the R.S. 2477 issue in United
States v. Vogler,76
Clouser v. Epsy,77
and Hale v. Norton.78
Granted, the Ninth Circuit has yet to
71
Wilderness Soc'y, v. Kane County, Utah, 581 F.3d 1198 (10th Cir. 2009).
72
Id. at 1221.
73
See id.
74
75
Wilderness Soc'y, 581 F. 3d at 1239 (J. McConnell, dissenting).
76
United States v. Vogler, 859 F.2d 638 (9th Cir. 1988)
77
Clouser v. Espy, 42 F.3d 1522 (9th Cir. 1994)
78
Hale v. Norton, 476 F.3d 694 (9th Cir. 2007).

13
rule on a case similar to SUWA, where R.S. 2477 claim validity and claim scope were directly
challenged.79
However, the cases are sufficiently related as to elicit an instructional
comparison.80
In Vogler, the United States District Court in Alaska issued a permanent injunction
preventing Vogler from driving off-road vehicles through Yukon-Charley Rivers National
Preserve to his mining claims.81
Vogler appealed, arguing that the trail was an established R.S.
2477 right-of-way, which the National Park Service lacked the authority to regulate.82
The Ninth
Circuit upheld the regulation stating that NPS, charged with the responsibility to uphold its
mandate, possessed the authority to restrict the use of the trail regardless of whether the trail was
a valid R.S. 2477 claim or not.83
The Court held that NPS draws its authority from the Property
Clause and the Alaska National Interest Land Conservation Act (ANILCA).84
The fact that the
Ninth Circuit arrived at its conclusion without reference to state law, in addition to an apparent
disregard to claim validity, sets it apart from the Tenth Circuit.85
The Ninth Circuit affirmed the Vogler holding in Clouser v. Epsy. In that case, the Court
held that, in the course of exercising its statutory mandate, the US Forest Service had the power
to regulate R.S.2477 roads to the extent that the restrictions are necessary to accomplish DOA’s
obligations.86
Once more, state property law did not factor into the decision.87
79
See Matthew L. Squires, Federal Regulation of R.S. 2477 Rights-of-Way, 63 N.Y.U. ANN.
SURV. AM. L. 547, 588 (2008).
80
See id. at 586–90 (comparing Tenth and Ninth Circuits’ decisions with respect to R.S. 2477).
81
Vogler, 859 F.2d at 639–40.
82
Id.
83
Id. at 642.
84
Id. at 641.
85
See Squires, supra note 79, at 587.
86
Clouser, 42 F.3d at 1538.
87
See id.

14
More recently, in Hale v. Norton, plaintiff Hale owned a house located within Wrangell-
St. Elias National Park and Preserve in Alaska, which he accessed through a trail.88
When Hale
leveled the trail with a bulldozer, park officials informed him that without a permit, no motorized
vehicle, except snowmobiles, can be used on the trail.89
Hale filed suit asserting that the NPS
regulation violated his right of access to an established R.S. 2477 road.90
Following Vogler, the
Ninth Circuit held that, regardless of the validity of the R.S. 2477 claim, the trail was subject to
reasonable regulation by NPS.91
The court also found the permit requirement for vehicles other
than snow machines was reasonable.92
At least one commentator has stipulated that this holding
could not be supported under the Tenth Circuit approach of using state law to resolve R.S. 2477
claims.93
C. The Problems With Each Approach
1. The Tenth Circuit’s Posture
Relying on state law to resolve questions of federal law remains a long standing choice-
of-law principle.94
Therefore, the Tenth Circuit approach is not a novel creation.95
The Court,
with due diligence, concluded that state law was proper in interpreting R.S. 2477 statutory
language based on judicial precedent and past administrative practices.96
However, a court in
deciding to use state law, must ensure that its ruling does not “frustrate federal policy or
88
Hale, 476 F.3d at 696.
89
Id.
90
Id.
91
Id. at 699.
92
Id. at 700.
93
Squires, supra note 79, at 589.
94
See, e.g., Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 108 (1991); Wilson v. Omaha
Indian Tribe, 442 U.S. 653, 671-72 (1979).
95
96
See SUWA II, 425 F.3d at 762 (discussing the appropriateness of “borrowing from state law to
resolve federal matters).

15
functions,” underlying the federal law.97
The Tenth Circuit’s construction of R.S. 2477 statutory
language, completely divorced from the context in which its significance is raised, weakens the
soundness of the court’s decision in SUWA II.98
That is, by interpreting R.S. 2477 without
placing it within the framework of FLPMA, which repealed R.S. 2477, the court bolstered a
policy devoid of a balancing exercise between furthering FLPMA’s objectives and upholding
R.S. 2477 rights.99
First, the Tenth Circuit’s approach of “borrowing” state law to decide R.S. 2477 disputes
effectively increases the likelihood of inhibiting DOI’s ability to manage the federal lands in
ways that meet its obligations under FLPMA.100
For example, under the Tenth Circuit’s
approach, DOI could not prevent vehicular traffic on a road located on a preservation area if that
road is deemed a valid “existing right-of-way” under state law.101
Moreover, this approach
carries the possibility that the public interest in some public lands will be eviscerated.102
Under
FLPMA, the public retains an interest in the public lands subject to DOI’s regulation.103
If, for
instance, the public interest in protecting wilderness areas must yield to existing trails based
simply on state law, with no other considerations, then FLPMA lacks the teeth necessary to
accomplish its mission.104
97
See id. at 763 (quoting Wilson v. Omaha Indian Tribe, 442 U.S. 653, 672 (1979).
98
See Squires, supra note 79, at 598–99.
99
See id.
100
Id. at 601.
101
Id. at 601–02.
102
See id. at 600; William J. Lockhart, Federal Statutory Grants Are Not Placeholders for
Manipulated State Law: A Response to Ms. Hjelle, 14 J. ENERGY NAT. RESOURCES & ENVTL. L.
323, 324 (1994).
103
See, e.g., Vogler, 859 F.2d at 642.
104
See Squires, supra note 79, at 600 (stating that “under the [state law] approach, both the
management and future suitability of federal lands for wilderness protection are at the mercy of
the states.”).

16
Second, the Tenth Circuit’s state law approach would most likely encourage states to
adopt lax laws to gain property rights that would otherwise be excluded from the purview of the
R.S. 2477 grant.105
For example, many states legislatures have now adopted laws that include
footpaths and trails as highways and “mere use” as construction.106
Third, the Tenth Circuit’s
approach creates the high probability of inconsistent application of R.S. 2477 rules across federal
lands.107
Because federal lands are not confined by state boundaries, the state law approach
impedes DOI’s ability to adopt uniform national programs regarding similar public lands.108
Particularly, using state law to determine the validity and scope of R.S. 2477 claims might lead
to different treatment of a preserved area that lies within two states.109
The other aspect of the Tenth Circuit’s approach, vesting the authority to determine R.S.
2477 claim validity only in the courts and allowing DOI to make determination of scope, stands
as equally problematic.110
This seemingly irreconcilable dichotomy is analogous to removing a
child from a parent’s custody, yet allowing the same parent to make life-changing decisions
about the child. First, the Tenth Circuit position that DOI lacks primary jurisdiction to determine
R.S. claim validity lacks solid support.111
Second, this approach encourages litigation because
well over a thousand pending claims would have to be litigated to determine validity after which,
claimants would resort to DOI to “negotiate” the scope of the valid claim.112
A rule that
105
See Lockhart, supra note 102, at 323.
106
See id.
107
Id. at 339.
108
109
See Tova Wolking, From Blazing Trails to Building Highways: SUWA v. BLM & Ancient
Easements over Federal Public Lands, 34 ECOLOGY L.Q. 1067, 1093–94 (2007).
110
Id. at 1094.
111
See infra Part III.B.2.
112
See Wolking, supra note 109, at 1095–96

17
inherently calls for ten thousand lawsuits is inefficient at the very least.113
Since litigation can
take years, the constant uncertainty about the presence of nonfederal property interests on the
federal lands significantly confines DOI’s authority in adequately managing the public lands and
resources.114
2. The Ninth Circuit Somewhat Federal Law Approach
Like the Tenth Circuit’s approach, the Ninth Circuit embodies possible shortcomings.
First, a potential federal standard, construed solely in light of FLPMA, might thwart the states’
expectations as it relates to the R.S. 2477 grant.115
As the court in SUWA pointed, DOI has
taken, in numerous occasions, the position that state law controls the statutory interpretation of
R.S. 2477 language.116
To now ignore state law in deciding R.S. 2477 would frustrate claimants’
long reliance on DOI’s guidance in managing their purported R.S. 2477 right-of-way claims.117
In addition, proponents of the Tenth Circuit’s state law standard argue that the Ninth Circuit’s
method nullifies congressional intent because congressional silence signifies congressional
acquiescence to the state law standard.118
To that regard, adopting a federal law standard where DOI controls the meaning of the
terms, might amount to retroactive rulemaking.119
Retroactive rulemaking tends to be unfair for
lack of notice and undermine the administrative law rulemaking process of notice and comment,
prompting the Supreme Court to warn against such rules.120
A federal legal standard would
113
See infra Part III.A.1.
114
See id.
115
Hjelle, supra note 2, at 320.
116
SUWA II, 425 F.3d at 757
117
See Hjelle, supra note 2, at 320; Wolter, supra note 33, at 325.
118
See Harry R. Bader, Potential Legal Standards for Resolving the R.S. 2477 Right of Way
Crisis, 11 PACE ENVTL. L. REV. 485, 504 (1994).
119
Birdsong, supra note 16, at 573–74.
120
Id.

18
necessarily have retroactive effects to some extent because it would likely disturb “the legal
significance of past facts.”121
For example, if at the time of the R.S. 2477 grant, “highway”
meant “a path, vehicular or not, that connects towns” then DOI, supplied with hindsight, can
advocate for a rule that requires a “highway” to be “vehicular.”122
This scenario leads to the
second drawback of a federal legal standard: some valid existing rights would incidentally be
taken away.123
A federal standard carries the risk of curtailing R.S. 2477 rights that vested either
under common law or statutory state law at the time the R.S. 2477 grant was made.124
Although
for most roads the impact will go unnoticed, for some roads, considered “economic lifelines” the
repercussions would be substantial.125
For instance, some interested parties might be prevented
from accessing valid mining claims or the road could be literally closed to “ranches and farms …
necessary services, such as mail, school buses, medical emergency vehicles, and law
enforcement.”126
In sum, both the Tenth Circuit approach and the Ninth Circuit approach contain some
shortcomings. The former seems to promote inefficiency by incentivizing lawsuits and
potentially undercutting DOI’s efforts to manage the public lands and the latter seems to entail
unfairness by possibly abolishing some property rights. Nevertheless, with a meaningful shift in
procedure accompanied by few critical substantive changes, an appropriate medium, where R.S.
2477 claims are effectively settled can be defined.127
Part III: SUITABLE LEGAL SCHEMES FOR RESOLVING R.S. 2477 CONFLICTS
121
See id.
122
See id. at 574–75.
123
124
See Hjelle, supra note 2, at 318.
125
Wolking, supra note 109, at 1071–72.
126
Id.
127
See infra Part III.

19
A. Plan A: Legislative Action
This subpart presents a scheme for efficiently and fairly settling R.S. 2477 claims. Taken
as a whole, the steps of this course of action empower DOI to use its expertise in land
management to resolve R.S. 2477 claims and reduce the role of the judiciary to that of review of
DOI’s actions under customary administrative law judicial scrutiny. As part of this proposed
approach, Congress must first amend FLPMA to expressly vest the authority in DOI to
adjudicate R.S. 2477 claims.128
Second, Congress must lift the permanent moratorium that it
placed on DOI in 1996, preventing DOI from promulgating any rules regarding R.S. 2477
without congressional approval.129
Third, DOI must adopt uniform procedural and substantive
rules for deciding R.S. 2477 issues.130
1. Congress Must Authorize DOI to Adjudicate R.S. 2477 Cases
Congress must explicitly place the power to make initial determination of the validity and
scope of R.S. 2477 claims in DOI to serve the dual purpose of removing any doubt about DOI’
authority in adjudicating R.S. 2477 cases and notably increasing the efficiency of R.S. 2477
controversy resolution.131
An act of Congress vesting authority in DOI to play the lead role in
deciding the validity and scope of R.S. 2477 claims is consistent with Congress’s long history of
conferring broad power to DOI to manage the public lands.132
DOI’s authority is proper so long
as it “maintains a connection with the land in which the claim arise by continuing to possess
some measure of control over them.”133
In fact, the district court in SUWA I found it
128
129
130
131
132
Id.
133
Id. at 565; Boesche v. Udall, 373 U.S. 472, 477–78 n.7 (1963).

20
undisputable that DOI must make an initial determination of R.S. 2477 claim validity before the
court would review the case.134
From an efficiency standpoint, there are several arguments that support the need for
Congress to allow DOI to formally judge the validity of R.S. 2477 claims. Foremost, such a
congressional action would immediately halt DOI’s impending litigation of over ten thousand
claims in the federal courts, averting the colossal expenses associated with these types of judicial
actions.135
Granted, DOI would still need to adjudicate those cases outside the courts in an
administrative process, which would also be expensive but DOI’s expertise in balancing federal
interests with nonfederal interests on public lands would lead to an expedient solution within a
reasonable time.136
The adjudication of R.S. 2477 claim validity and scope involves acute factual
determination for which DOI’s knowledge of the terrain and its expertise in understanding the
evidence surpasses the competency of judges in deciding R.S. 2477 claims.137
It simply would
take more time for judges, compared to DOI, to evaluate and comprehend evidentiary documents
such as DOI planning documents, land surveys, DOI wilderness inventories, and DOI
maintenance records.138
Furthermore, DOI will have the ability to readily identify and prioritize
the determination of cases that have great significance to DOI and the affected communities
134
135
See Department of Interior, Memoradum of Understanding Between the State of Utah and the
Department of Interior (2003), available at
http://www.doi.gov/news/archive/03_News_Releases/mours2477.htm (discussing the high cost
of litigation associated with R.S. 2477 disputes).
136
137
Joseph Azbell, Public Lands-the Road Less Traveled: The 10th Circuit Adjudicates R.S. 2477
Claims Using A Piecemeal State-Law Approach Instead of A Uniform Federal Policy; Southern
Utah Wilderness Alliance v. Bureau of Land Management, 7 WYO. L. REV. 547, 575-76 (2007).
138
Id.

21
rather than subjecting the resolution of all cases, trivial and important alike, to an ever-slowing
trial schedule.139
Placing the authority in DOI to make the initial determination of the validity and scope of
R.S. 2477 claims would forcefully place DOI and R.S. claimants in a bargaining position, where
the parties would likely achieve the optimal distribution of the property rights involved.140
This
assertion is based on an oversimplified application of the Coase Theorem which, essentially,
provides that when it comes to property rights, the parties will naturally gravitate toward the
mutually desirable outcome.141
Granted, the Coase Theorem assumes negligible transaction costs
– not the case here – but DOI’s expertise alone significantly decreases the transactions costs in a
negotiation setting as compared to litigation.142
If, for example, the evidence demonstrates the
existence of a valid R.S. claim in a Wilderness Study Area of substantial value to DOI, then the
federal government can exercise its power of eminent domain to acquire the R.S. 2477 right-of-
way. In a case where exchanging the right to a valid R.S. 2477 claim with compensation is not
desirable – let’s say, the road constitutes an economic lifeline for the claimant – the parties can
either agree on an alternative road, or alternative uses that would protect each party’s interests.
139
See McFarlane, supra note 3, at 250.
140
See David M. Trubek, Austin Sarat, William L.F. Felstiner, Herbert M. Kritzer, Joel B.
Grossman, The Costs of Ordinary Litigation, 31 UCLA L. REV. 72, 122 (1983) (concluding
that “bargaining and settlement are the prevalent and, for plaintiffs, perhaps the most cost-
effective activity that occurs when cases are filed.”).
141
Ronald Coase's landmark article, The Problem of Social Cost is “credited with providing the
doctrinal precursor to the standard economic model of bargaining.” Robert J. Rhee, A Price
Theory of Legal Bargaining: An Inquiry into the Selection of Settlement and Litigation Under
Uncertainty, 56 EMORY L.J. 619, 629 (2006). Subsequently coined as the “Coase Theorem,”
Ronald Coase indicated that bargaining among parties would lead to an efficient and invariant
result when transactions cost are zero. See Ronald H. Coase, The Problem of Social Cost, 3 J.L.
& ECON. 1, 2–15 (1960).
142
See Azbell, supra note 137, at 574–76.

22
These scenarios are difficult to achieve in a trial setting where resources are mostly spent
attacking the opposing side propositions rather than identifying a mutually beneficial solution.143
Moreover, after a court’s ruling, the parties might still need to engage in negotiations if the result
is unworkable or highly detrimental to one party, a bargaining that can occur at the onset of an
R.S. 2477 dispute if DOI is allowed to play the lead role in claim determination.144
As noted by
most scholars, trials “represent mistakes, breakdowns in the bargaining process, that leave the
litigants and society worse off than they would have been had settlement been reached.”145
Certainly, this premise supports the conclusion that bargaining and settlement rather than trial
will serve the interests of DOI as well as R.S. 2477 claimants in a cost-effective manner.146
As evidenced by DOI’s lead role in settling mining claims, a decision to allow DOI to
adjudicate R.S. 2477 claims will not place DOI into an unfamiliar territory.147
DOI has long
played the primary role in productively determining the validity and scope of unpatented mining
claims present on federal lands.148
There exists no peculiarity in R.S. 2477 rights, as opposed to
mining rights, that would squarely remove them from DOI’s adjudication authority.149
In short,
vesting the authority in DOI to make initial determination of the validity and scope of R.S. 2477
claims, sets the issue resolution within the context of FLPMA’s mandate. As a major organic act
143
See generally Trubek et al., supra note 140 (discussing the various costs that go into each
aspects of litigation).
144
See Birdsong, supra note 16, at 554–57; Azbell, supra note 137, at 574–76.
145
Russell Korobkin, Chris Guthrie, Psychological Barriers to Litigation Settlement: An
Experimental Approach, 93 MICH. L. REV. 107, 107-08 (1994); see also Larry Kramer, Consent
Decrees and the Rights of Third Parties, 87 MICH. L. REV. 321, 327 (1988).
146
See Trubek et al., supra note 140, at 122.
147
See Birdsong, supra note 16, at 562–64; Infra Part III.B.2.
148
Id.
149
See Birdsong, supra note 16, at 565 (stating that “The principles underlying primary
jurisdiction, and their application in the minerals cases, support the initial determination of R.S.
2477 claims by DOI rather than exclusive adjudication by federal courts.”).

23
in public land management, FLPMA should not be an afterthought in decisions that directly
affect its objectives.150
2. Congress Must Lift the Prohibition on DOI Rulemaking Concerning R.S 2477
In 1996, in response to DOI’s proposed rules regarding R.S. 2477, Congress passed a
permanent moratorium that read: “No final rule or regulation of any agency of the Federal
Government pertaining to the recognition, management, or validity of a right-of-way pursuant to
[R.S. 2477] shall take effect unless expressly authorized by an Act of Congress subsequent to the
date of the enactment of this Act.”151
This blatant obstruction in DOI policymaking contributes
to the piecemeal adjudication and use of inconsistent standards to address R.S. 2477 claims and
must be removed for an efficient resolution of R.S. 2477 claims.152
With over ten thousand pending R.S. 2477 claims, there are claims that indisputably
stand at each end of the validity spectrum: the rights that are obviously valid and the rights that
are obviously invalid.153
Rulemaking will allow swift identification of these types of claims for
immediate disposition.154
Additionally, the presence of uniform regulation would permit early
judicial disposition of frivolous claims either through a motion to dismiss or a motion for
summary judgment.155
Rulemaking should be favored over the current ad hoc adjudication
150
151
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).
152
See Birdsong, supra note 16, at 578–79.
153
See Stone, supra note 5, at 212.
154
McFarlane, supra note 3, 249–50.
155
With over half of claims being dismissed in federal courts under Rule 12(b)(6) since Twombly
and Iqbal, many frivolous R.S. 2477 claims would not survive a motion to dismiss if the legal
standard against which the alleged facts are measured is clarified. See generally Patricia W.
Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically? 59 AM. UNIV. L.
REV. 553, 556 (discussing the chances of surviving a motion to dismiss).

24
method because it inherently incorporates transparency, reasoned public participation, and fair
notice.156
Opponents of federal regulation argue that displacing state law standards with federal
standards would spurn over a century of adherence to state law by claimants, courts, and DOI.157
But the country’s objectives as it pertains to public land management in this modern era is much
different than that of 1866.158
In 1866, the country was concerned with westward settlement.159
Today, FLPMA attempts to manage the public lands “in a manner that will protect the quality of
scientific, scenic, historical, ecological, environmental, … that, where appropriate, will preserve
and protect certain public lands in their natural condition; that will provide food and habitat for
fish and wildlife and domestic animals; and that will provide for outdoor recreation and human
occupancy and use.”160
Furthermore, it is mistaken to equate the contention that state law has
grown to be the dominant standard to the proposition that state law is irrefutably the preferred
standard.161
When R.S. 2477 was in effect, most disputes arose locally between private parties or
between states and privates parties, in which instance, state law was proper in providing
uniformity and predictability.162
Today, the federal government is party to most R.S. 2477
disputes and its objectives through FLPMA transcends state boundaries.163
Thus, stands the need
for a national standard.
3. DOI Must Promulgate Rules
156
157
See Olson, supra note 7, at 313.
158
Bader, supra note 118, at 505.
159
Id.
160
43 U.S.C. § 1701 (a) (8) (2000).
161
See Lockart, supra note 102, at 326.
162
Id.
163
Id.

25
As previously stated, agency rulemaking will provide an opportunity to efficiently settle
R.S. 2477 claims. Also, final agency rules that establish a publicly approved process for
resolving R.S. 2477 claims would be less susceptible to whimsical political flavors.164
Given that
the rules would affect diverse property rights, possibly in a retroactive way, DOI rulemaking in
this context must seek procedural and substantive fairness as well as efficiency.165
a. Defining R.S. 2477 Pertinent Terms
Providing a definition to the R.S. 2477 statutory terms would promote uniform
application of the law and foster administrative efficiency to the thousands of R.S. 2477
disputes.166
The ability of states to receive R.S. 2477 rights by changing state laws would
effectively be defeated.167
In addition, uniform standards would eliminate the “undue emphasis
[given] to state boundaries in the federal management scheme – boundaries that are seldom of
natural significance and often do not demarcate federal land unit boundaries”168
Substantively,
the rules of statutory construction should be employed to give meaning to the words
“construction,” “highway,” and “unreserved public lands.” Statutory construction first focuses on
the plain language of the statute, where words are given their ordinary meaning, except when the
164
Compare Departmental Policy on Revised Statute 2477 Grants of Right-of-Way (approved
Dec. 7, 1988), available at http:// www.fs.fed.us/im/directives/fsm/2700/2730.doc (mechanical
road construction not required and “pedestrian or pack animal trail may qualify” as a highway)
with 59 Fed. Reg. 39224-228 (1994) (proposed regulation requiring actual construction of road
passable by vehicles).
165
166
Lockart, supra note 102, at 340–41.
167
See Wolter, supra note 33, at 364–65.
168

26
legislature has otherwise provided.169
In other words, the definitions adopted by DOI should
encompass the ordinary meaning of “highway” and the “construction” thereof.170
This would undoubtedly provide a certain level of fairness to potential R.S. 2477
claimants.171
However, the definitions must also take into account other policy considerations. A
definition that would confer broad rights as to render the public lands unmanageable would be
futile.172
For example, a definition of “highway” providing that “a highway constitutes a
thoroughfare that is currently and was, prior to 21 October 1976, used by the public for passage
of vehicles carrying people or goods from an identifiable place to another” could serve the policy
considerations of fairness and efficiency.173
It clearly includes roads travelled by wheeled
carriages in 1866 that have transformed to major modern roads and, at the same time, it clearly
excludes abandoned roads, thoroughfares without destination, and trails.174
Similarly, a definition
of “construction” that provides that “construction means the completion of a durable, observable,
physical modification of land suitable for highway traffic, in light of the technological changes
between 1866 and 1976” would promote fairness and efficiency as it identifies the necessary acts
169
See WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY, ELIZABETH GARRETT, CASES AND
MATERIALS ON LEGISLATION: STATUTES AND CREATION OF PUBLIC POLICY, 820 (3d. ed. 2001).
170
The words of a statute mean what an “ordinary” or “reasonable” person would understand
them to mean. Id. at 819.
171
Houseal, supra note 7, at 743.
172
See Lockart, supra note 102, at 339.
173
This is a modification of the proposed rule of 1994, which was made unnecessarily
complicated, stating that “thoroughfare that is currently and was, prior to the latest available
date, used by the public without discrimination against any individual or group for passage of
vehicles carrying people or goods from place to place.” 59 Fed. Reg. at 39, 220. Showing the
lack of discrimination throughout the lifetime of a roadway would be a daunting task that often,
will be impossible to prove given the history of the country. Also, the modification incorporates
a clear cut-off date for the vesting of R.S. 2477 rights.
174
See LEONARD C. BRUNO, SCIENCE AND TECHNOLOGY FIRSTS, (Thompson Gale, 1996)
(discussing the history of transportation).

27
that would amount to construction while placing those acts within the context of road building at
the time of the R.S. 2477 grant.175
b. Filing and Recordation Requirement
DOI’s regulations should incorporate a filing requirement and a timeline for such filing.
For this requirement, claimants must file documentation asserting an R.S. 2477 right-of-way,
grounded in evidence, where the assertion clearly shows the confines of the claimed rights.176
DOI would then review the filing under the rules defining the statutory language and the
evidence requirement.177
If DOI acknowledges the right, then recordation of the claim would
follow.178
Rights not asserted within the filing timeline would be forfeited.179
This
straightforward administrative process would put an “expiration date” to the mounting R.S.2477
controversy and allow resources to be properly allocated to resolve the issues that DOI would
tackle during the filing requirement period.180
Opponents to this scheme charge that the rule would amount to taking.181
But U.S. law
has long shown its dislike of unused or abandoned property by permitting the law of adverse
possession.182
Any R.S. 2477 claim lost because the claimants failed to assert that right through
the filing requirement would be analogous to a loss of right under adverse possession. It is the
175
This is a modification of the 1994 proposed regulation, which provided that construction
entails “intentional physical acts “with the achieved purpose of preparing a durable, observable,
physical modification of land . . . suitable for highway traffic” 59 Fed. Reg. at 39, 220.
176
See 59 Fed. Reg. at 39, 221.
177
See id.
178
See id.
179
See 59 Fed. Reg. at 39, 220
180
181
See Wolking, supra note 109, at 1092; Wolter, supra note 33 at 325; Olson, supra note 7, at
312.
182
See JESSE DUKEMINIER, JAMES E. KRIER, GREGORY ALEXANDER, MICHAEL H. SCHILL,
PROPERTY 116–164 (Aspen Publishers 7ed. 2010) (discussing the law of adverse possession).

28
U.S. government’s prerogative to choose the terms under which it can reclaim its lands, provided
that the terms are lawful and within the bounds of the constitution.183
Moreover, the recording
system would be highly beneficial and fair to successors of federal lands who have the right to
know whether their lands are burden by R.S. 2477 claims.184
c. Burden of Proof and Evidentiary Requirement
Under DOI’s R.S. 2477 rules, claimants should have the burden of proving every element
of a valid existing right-of-way. R.S. 2477 claimants have better access to probative local records
and are in a better position to recount their historic usage of the claimed right-of-way.185
DOI
would compare claimants’ evidence to DOI’s records for any conflicts and then judge the
sufficiency of the evidence.186
Under this strategy, claims that are patently valid or invalid would
be resolved without undue contest.187
As to the claims in the middle of the validity continuum,
DOI’s decision should be made in light of all available records, the significance of the claimed
interest, and the objectives of FLPMA.188
DOI’s decision would remain appealable to the courts
where it would be judged under an “abuse of discretion” standard.189
States and local governments argue that the federal government should have the burden
of disproving R.S. 2477 claims because those rights vested over a century ago, and the claimants
should not be required to prove their validity.190
This argument stands in contrast to the law of
183
See United States v. Midwest Oil Co., 236 U.S. 459 (1915) (holding that the president could
constitutionally withdraw public lands that were open to unrestrained access from entry by
private parties).
184
Azbell, supra note 137, at 574.
185
See Olson, supra note 7, at 310–11.
186
See id.
187
Stone, supra note 5, at 212.
188
See id. at 211–12.
189
See Charles H. Koch, Jr., Judicial Review of Administrative Discretion, G. WASH. L. REV.,
469, 469 –72 (1986).
190

29
easements, which places the burden of proof on the person asserting an easement.191
Also,
allocating the burden of proof to claimants is consistent with the long-standing principle that
when in doubt, federal land grants are construed in favor of the U.S. government.192
B. Judicial Repositioning
Given the current political landscape, the legal scheme proposed in subpart A represents a
polemically ambitious plan that might not only split congress into political affiliations, it might
also create a divide within the legislature based on geographical attachments.193
Therefore, it
could take years for this highly desirable plan to receive approval.194
Notwithstanding the lack of
the preferred legislative action, two main changes in the current judicial treatment of R.S. 2477
disputes would increase the efficiency and fairness of R.S. 2477 resolutions.195
First, the part of
SUWA II that held that DOI lacks the authority to determine R.S. 2477 claims should be
reversed.196
Second, although state law could still be the standard for R.S. 2477 statutory
language interpretation, there should be preemption where an assertion of R.S. 2477 right
conflicts with FLPMA’s mandate.197
1. Reversing SUWA II In-Part
The Tenth Circuit’s decision that DOI lacks primary jurisdiction to determine R.S. 2477
validity should be reversed and the Ninth Circuit should refrain from such a holding.198
This
would allow DOI and claimants to engage in negotiation where a mutually beneficial outcome
191
See e.g., Gray v. McDonald, 46 Wn. 2d 574, 283 P.2d 135 (1955) (Stating that the burden of
proving all elements of use reside with the claimant).
192
California ex rel. State Lands Comm'n v. United States, 457 U.S. 273, 287 (1982).
193
See Stone, supra note 5, at 211; Houseal, supra note 7, at 742.
194
See id.
195
See infra Part III.B.1, 2.
196
197
198
See Azbell, supra note 137, at 565.

30
would be reached by the parties at lower costs than that of litigation.199
In addition to this policy
reason, the Tenth Circuit decision to limit R.S. 2477 validity determination only to the courts,
lacks strong support.200
The Tenth Circuit holding relies mostly on the fact the Congress has not
expressly provided DOI with the authority to settle R.S. 2477 issues.201
The precedents used to
afford primary jurisdiction to DOI with respect to unpatented mining claims serve as grounds
that primary jurisdiction regarding R.S. 2477 resolution is proper.202
The Mining Act of 1872
share origins and similarities with R.S. 2477 that justify comparison.203
DOI’s vested authority to judge mining claims started with the Supreme Court’s decision
in Cameron v. United States, where the Court held that “in the absence of some direction to the
contrary, the general statutory provisions before mentioned vest [authority] in the Land
Department.”204
The Supreme Court reaffirmed this holding in Best v. Humboldt Placer Mining
Company, concluding that “Congress had given the Department of Interior plenary authority to
administer the public lands, including the authority to adjudicate the validity of unpatented
mining claims.”205
Reversing SUWA II to allow DOI to adjudicate R.S. 2477 would be in line
with the foregoing Supreme Court precedents.206
Moreover, this would reconcile SUWA II’s
holding that DOI can determine scope yet cannot determine validity.207
Given that a decision on
199
See supra Part III. A. 1.
200
201
Id. at 567.
202
Id.
203
Both statutes emanate from the 1866 Mining Act; they both granted property rights on federal
lands subject to conditions within their respective statutory language; and they both granted
rights that vested without governmental action. Id.
204
Cameron v. United States, 252 U.S. 450, 461 (1920).
205
Azbell, supra note 137, at 568; Best v. Humboldt Placer Min. Co., 371 U.S. 334 (1963).
206
207
See Wolking, supra note 109, 1090–93.

31
scope may render validity meaningless, the same body should have the authority to make both
decisions to minimize conflicts.208
2. Reshaping the State Law Standard
Courts in making decision regarding R.S. 2477 cases, should do so within the context of
FLPMA’s mandate.209
Since there is currently a predominance in using state law to determine
R.S. 2477, at times with the clear consent of DOI, continuing to do so would certainly be fair on
the basis of long-standing reliance.210
However, state laws used to give meaning to the R.S. 2477
statutory language must be “frozen” at the time of the R.S. 2477 grant.211
This would deter
deliberate state action intended to change property laws in favor of broad R.S. 2477 rights.212
Where there exist a conflict between the assertion of an R.S. 2477 right and FLPMA’s
objectives, the federal purpose should preempt the R.S. 2477 claim.213
The traditional supremacy
standard provides that federal interests take precedence over state law where a conflict exist as to
prevent the accomplishment of federal purposes.214
To be fair, preemption should be subject to
balancing the parties’ interests.215
The asserted federal purpose must be essential to the federal
management plan judged as a whole.216
To permit preemption where significant states interests
are destroyed only to further a minor federal purpose is both inefficient and unfair.217
Additionally, the right-of-way permit scheme detailed in title V of FLPMA can serve as
208
See id.
209
210
211
See Bader, supra note 118, at 509.
212
See id.
213
See id. at 509–10.
214
Id. at 509.
215
Id. at 509–10.
216
Id.
217
Id.

32
guidance to establish that assertions of preemptive federal purposes are not arbitrary.218
At the
same time, to overcome preemption, the state interests must be compelling, not merely
economically beneficial.219
Compelling interests, for example, would be those that necessarily
affect public health and safety.220
Preemption accompanied with these safeguards would ensure
that FLPMA’s objectives are advanced while states interests are protected.221
To resolve R.S.
2477 claims using state law, detached from FLPMA’s mandate, builds the great potential of
making FLPMA’s objectives subservient to inconsequential state interests.222
The repealed
statute cannot be given effect over the repealing statute.
CONCLUSION
Almost a century and half has passed since the R.S. 2477 right-of-way grant and it has
been four decades since it was repealed but the resolution of R.S. 2477 remain as obscure as the
grant itself.223
With over ten thousand pending claims in Utah alone, the time to craft a legal
framework that would promote efficiency and fairness is overdue.224
The status quo cannot
continue because it contains a high degree of uncertainty that clouds DOI’s ability to manage the
public lands and curbs states and local governments’ ability to plan and develop surrounding
218
See Wolking, supra note 109, at 1101; Title V of FLPMA “emphasizes the importance of
administering rights-of-way in a manner that complements these policies and goals, imposing
detailed and explicit environmental protection requirements as a condition of any right-of-way”
Lockart, supra note 102, at 332.
219
See Bader, supra note 118, at 509–10.
220
Id.
221
Id.
222
See id.
223
See id. at 485.
224
See Olson, supra note 7, at 316.

33
property.225
Moreover, significant resources are redirected to litigate these claims when they
could be used to further FLPMA’s objectives or improve R.S. 2477 highways.226
The superior solution is legislative action that would 1) expressly vest clear authority in
DOI to adjudicate R.S. 2477 claims, 2) lift the prohibition on the promulgation of rules regarding
R.S. 2477, 3) adopt uniform rules that would define the terms of the R.S. 2477 grant, clarify the
evidentiary requirement to prove R.S. 2477 claim validity, and impose a fling requirement.227
Short of congressional action, the current legal standard needs to be judicially modified and
clarified as to allow DOI to adjudicate R.S. 2477 claims and permit preemption where the
assertion of an R.S. 2477 contravenes with FLPMA’s objectives.228
Skeptics of broad federal
powers that might impede on state sovereignty should rest assured that most legal decisions are
not made in a vacuum and policy considerations retain great weight in American lawmaking.229
If the Hand Rule has accomplished one thing, besides intriguing or provoking generations of law
students, it is demonstrating that the achievement of overall societal welfare ranks high among
legal decision-making factors.230
225
See Birdsong, supra note 16, at 533
226
See Hillary M. Hoffmann, Signs, Signs, Everywhere Signs: The Wilderness Society v. Kane
County Leaves Everyone Confused About Navigating A Right-of-Way Claim Under Revised
Statute 2477, 18 HASTINGS W.-N.W. J. ENVTL. L. & POL'Y 3, 34 (2012).
227
See supra Part III. A.
228
There is indication from Wildernees Soc’y v. Kane County that the Tenth Circuit is moving in
this direction but the opinion in Wilderness Soc’y has created more confusion in the resolution
of R.S. 2477 claims in the Tenth Circuit because of visible frictions with the SUWA II
decision. See supra Part III. B.
229
“Policy justifications clearly trump other justifications in any meaningful hierarchy of judicial
values.” Jonathan R. Macey, Geoffrey P. Miller, The Canons of Statutory Construction and
Judicial Preferences, 45 VAND. L. REV. 647, 656 (1992).
230
Formulated by Judge Learned Hand in United States v. Carroll Towing Co., 159 F.2d 169
(2d. Cir. 1947), the Hand Rule is a classic example of a balancing test and it stands for the
simplified proposition that a legal rule should not impose the cost of precaution on society
when it would make society worse off than the occurrence of the harm. See id.

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