RS 2477

[M.E.G.]

From:
https://www.reallibertymedia.com/2019/10/behind-the-woodshed-blogcaster-2019-10-27/

Your Fundamental Predisposition

County continues effort to assert control over U.S. roads


Colorado county using RS-2477 claims to gain jurisdiction over roads on federally-managed lands


Nonsense! Not RS2477


Highways & Trails: “Right of the County”

 

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[Strebs]

It will bite them in the end. Somebody with power that thinks it's their way or the highway. I'm just glad RS2477 does exist and helped me with San Miguel county up that way.

 

[IMAUDIGGER]

It will bite them in the end. Somebody with power that thinks it's their way or the highway. I'm just glad RS2477 does exist and helped me with San Miguel county up that way.

Fortunately for the people of that county, they have elected local politicians willing to stand up for their rights. As far as I'm aware, RS2477 does the average person no good unless the county is willing to stand by their side.

 

[Strebs]

RS 2477 "The right-of-way for the construction of highways over public lands, not reserved for public purposes, is hereby granted."


All this RS 2477 is the creation of roads across public lands. Once created it also allows the public to use the roads. This revision was created for miners, for western expansion, it was a way to get our people out west and develop it.

I put no faith in elected officials to protect my mining rights or to know what mining laws are. What I know is what I read, for more information regarding RS2477 look into:
Colorado Vs TOLL
Wilkenson VS Dept of Interior
Standard Ventures Vs Arizona
Sierra Club Vs Hodel

My personal experience with RS2477. The easiest access to my claim was through an old narrow-gauge railroad track that was removed and a footpath wide enough for vehicles could enter. This access was gated, locked and signage saying no vehicles. Going to BLM they wanted me 2 walk-ins my equipment, I advised them about RS2477 and that I needed road access to get to my mine site. Basically what I'm trying to say is that yes RS2477 was for the creation of new roads, But today it also used protects the public roads already in existence.

 

[Clay Diggins]

RS2477 refers to the Revised Statutes of 1874. These were the early version of the United States Code and were only approved by Congress for the single year 1874. The revised Statutes hung around for years confusing the law and the courts because they were never officially updated. Eventually in 1947 the Revised Statutes were repealed by Congress.

Yeah RS2477 hasn't actually existed as law for the last 72 years!

The right to the public way was not repealed, just RS2477, the right to the public way was then codified as law in USC 43 932. NOT RS2477.

The right to the public way was removed with the enactment of the FLPMA in 1976. All public ways existing in 1976 were preserved with the passage of the FLPMA but new public ways could no longer be created across public lands.

So why do people still refer to RS2477 instead of US Code 43 932 or the original law better known as the 1866 Mining Act? I'm thinking they don't want you looking into the actual law. Better to have everyone arguing over State's rights or highway widths than to acknowledge the public way as belonging to the public (the people of the United States) rather than some government division. The more confused you are the the less likely you are to exercise your rights with confidence.

Please don't think you can get the BLM or the Forest Service to recognize or deny the public right of way. I hear stories about this all the time and they are all bogus. The federal agencies are prohibited by law from making determinations about the public way. Public Law 104—208 clearly states:

"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 Revised Statute 2477 ([former] 43 U.S.C. 932) shall take effect unless expressly authorized by an Act of Congress subsequent to the date of enactment of this Act [Sept. 30, 1996]."

Yep - short of an Act of Congress no public right of way can be recognized, managed, acknowledged or denied by a Federal agency.

The public way is a precious thing. Like much found in the Mining Acts the right to the public way helped make this a rich nation of free people. Please don't muck up what's left of that right by getting wound around the axle with regulations and agencies that have nothing to do with the right to the public way. This issue isn't that complex when you pay attention to the law itself.

Educate Yourself and Prosper!

Heavy Pans

 

[Strebs]

great info clay, So how would I deal with an area that is National Forest, which had roads leading into this area that existed in 1976. But now is landlocked with private lands? All gated and I've asked but no permission to pass through the private lands?

 

[IMAUDIGGER]

As far as I'm aware, A RS2477 right is only a claim until it is adjudicated in court.

The easement or rights-of-ways developed under the RS2477 statute are held in trust by state or local governments (not by individuals). I believe there must be some formal action of recognition by the state or local government...Most common is a declaration or resolution passed by a county board of commissioners or supervisors. Approval of transportation maps and road district maps have also been used to support RS2477 claims made by state/local government.

Although it's historically been a hot topic, I don't think a single RS2477 right has been adjudicated in my county. I'm far from an expert, but find it interesting.

 

[IMAUDIGGER]

great info clay, So how would I deal with an area that is National Forest, which had roads leading into this area that existed in 1976. But now is landlocked with private lands? All gated and I've asked but no permission to pass through the private lands?

Landlocked forest lands don't go un-noticed by the forest district.
I would suspect they have files that document historical road maintenance...public tax dollars spent constructing or maintaining any of those roads crossing the private land. They have archived forest road system maps. I'd approach the forest ranger in a friendly manner and attempt to get them to do some research for you. Try to get a chronological history of the access roads. Your probably not the first to ask about it.

If you hit a dead end, you can always file a FOIA request and see what else turns up.

I've been told that there are sections of forest land that the USFS has to use helicopters to access themselves.

 

[Clay Diggins]

As far as I'm aware, A RS2477 right is only a claim until it is adjudicated in court.

The easement or rights-of-ways developed under the RS2477 statute are held in trust by state or local governments (not by individuals). I believe there must be some formal action of recognition by the state or local government...Most common is a declaration or resolution passed by a county board of commissioners or supervisors. Approval of transportation maps and road district maps have also been used to support RS2477 claims made by state/local government.

Although it's historically been a hot topic, I don't think a single RS2477 right has been adjudicated in my county. I'm far from an expert, but find it interesting.

You misunderstand. The grant of the public way has always been considered to be "self-executing" by the courts and Congress. No need for a court decision or acceptance by a government entity. Those would help but they are not a requirement for a public way.

Imagine that you had used a mud track and various routes involving swimming and changing paths to get to your property across the public lands. No government or court has ever approved your routes. Now imagine the Army withdraws the public land you cross. They build a military base, put up fences and guards and insist you need a pass from them to use your route. So do you need a pass to continue to use the public way?

Read Shultz v. Department of Army, U.S..
(Mr Shultz didn't need permission - the Army lost)

Several important cases have defined the grant to be either created by the appearance of acceptance by the State OR by the simple fact of public use:

"The territorial District Court and the highest courts of several states have construed the act as constituting a congressional grant of right of way for public highways across public lands. But before a highway may be created, there must be either some positive act on the part of the appropriate public authorities of the state, clearly manifesting an intention to accept a grant, or there must be public use for such a period of time and under such conditions as to prove that the grant has been accepted." Hamerly v.Denton

There are lots more court decisions like that.

Heavy Pans

 

[IMAUDIGGER]

Clay, my point was that because of the unwritten/implied nature of these right of ways, and the fact that the subject usually only comes up when there is a dispute...There will always be a question mark hanging in the air which can only be answered in a court of law. Was the RS2477 public right of way established in accordance with state laws? And to your point - is there sufficient evidence of implied acceptance through long standing public use?

If the validity of the RS2477 claim is confirmed in court, an easement of record is created in the form of a judgement and the rights existed all along. If the claim is denied, the public easement never existed. This is similar to how I understand prescriptive easements are handled. You stand on a claim based on common law and precedent until it is disputed and ultimately settled in the courts and adjudicated.

Do I have this all wrong? We may be looking at this issue correctly but from different directions.

 

[Clay Diggins]

Clay, my point was that because of the unwritten/implied nature of these right of ways, and the fact that the subject usually only comes up when there is a dispute...There will always be a question mark hanging in the air which can only be answered in a court of law. Was the RS2477 public right of way established in accordance with state laws? And to your point - is there sufficient evidence of implied acceptance through long standing public use?

If the validity of the RS2477 claim is confirmed in court, an easement of record is created in the form of a judgement and the rights existed all along. If the claim is denied, the public easement never existed. This is similar to how I understand prescriptive easements are handled. You stand on a claim based on common law and precedent until it is disputed and ultimately settled in the courts and adjudicated.

Do I have this all wrong? We may be looking at this issue correctly but from different directions.

I think you do have it wrong. The vast majority of public ways have never been challenged or adjudicated. Most people in the western states travel on the public way to go to work or the store. Several states have laws recognizing the public right of way grant based on nothing but public use. That's why I warned that getting into disputes involving specifics of local highway law is going off track. The grant is simple and has consistently been upheld by the courts - even when private property is involved. See Fitzgerald v. Puddicombe (1996).

The United States does not dispute public way grants (see Public Law 104–208) so any objection or challenge is brought by private property owners or State agencies. Now go and look at public way cases involving States or private property owners and you will see that the courts consistently look at "public use" as the primary standard, not prior court decisions.

You are correct that when a public way is in dispute the proper decider of facts are the courts. You are also correct that the public way easement either exists or it does not before a court is even formed to settle an issue. Once a controversy is presented to a court the court is authorized to settle the controversy whether the issue is public way or stolen underwear. The fact that a court is involved doesn't change the fact of the existing public way or the ultimate ownership of the underwear.

The court is only invoked to settle the controversy between the parties - not to change the facts. If the controversy is a challenge to the public way that is what the court must decide. Read the appellate decision in Fitzgerald v. Puddicombe above and you will see the appellate court giving the original judge a spanking for creating facts to get the outcome they desired. Ultimately that case was decided on the simple fact that the route had been used as a public way - just like every other court dealing with the public way. The grant is so simple there is no other basis to decide a challenge to a public way. If a public way goes unchallenged, like most, there is no reason to get a court involved - the people continue to use the public way and the easement exists whether challenged or not.

When the lawyers get involved and the controversy is presented as a dispute over whether State laws are controlling then the court must decide whether the State laws are controlling. This has nothing to do with whether a public way exists but it has everything to do with how the State laws apply to the controversy. That's getting wrapped around the regulation axle. I know of several cases with different outcomes in the same State when the same facts regarding the public way are decided on whether the public way meets State laws or whether the public way exists because of public use. The controversy can be simple (public use) or it can turn into a lawyer's windfall (State regulation). It's wise to remember that most public ways existed before there was a State.

We may be writing about the same thing from different perspectives but my point is still the same - keep it simple, don't confuse a simple issue. There is no need to get a court judgement just to enjoy your right to the public way, the right was there all along.

Thanks for your thoughtful replies. It's good to discuss these things to hopefully make the rights involved clearer for everyone.

Heavy Pans

 

[IMAUDIGGER]

Well me saying something is true doesn't make it so.

The same could probably be said when I get my truck and chainsaw confiscated for driving around a gate and cutting green trees that fell across the road and a few that grew up in the middle. If the road existed on maps prior to the forest reserve, you can bet I'm going to defend myself by saying I have a right to drive and maintain the road under RS2477.

USFS cannot determine the validity of my claim (unless it was previously adjudicated) so it will go to court and if I am successful, there will then be a specific right-of-way of public record. While I'm sitting in jail waiting on bail, it's just a claim

That's the real world crux of the problem.
In order for it to be so..I would need someone like you to overwhelm a judge with relevant court case cites. Do a poor job representing me and I end up just being mistaken about my right of way theory.

 

[Clay Diggins]

In order for it to be so..I would need someone like you to overwhelm a judge with relevant court case cites. Do a poor job representing me and I end up just being mistaken about my right of way theory.

I'm not a lawyer and I don't represent anyone. I'm just a well educated citizen.

I've spent a fair amount of time in court litigating the rights of the people (me) to the public lands and I've had some good results. None of it was easy but I personally felt it needed to be done. It's a matter of personal choice. You may have better things to do with your time. I understand that.

Educate Yourself and Prosper!

Heavy Pans

 

[Rail Dawg]

Great discussion guys.

It's fun to kick back and read the back and forth. The more educated we are on these matters the better equipped we are to defend and exercise our rights.

Thanks!

Chuck

 

[Bejay]

It is always prudent to copy and past the info into a file that one may use in the future if need be.

Bejay

I just went back into my files and found this by Barry:

RS 2477 (Revised Statutes of 1875) is taken directly from Section 8 of the Mining Act of 1866.

SEC. 8. And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted. The Revised Statutes were the predecessor of the U.S Codes (USC) and like the USC were just a restatement of the already enacted laws.

The wording and the intent remained the same until Section 8 (RS2477) was repealed in 1976 in the Federal Land Policy and Management Act (FLPMA). At that time all existing public ways were grandfathered as a right of way forever. No new public rights of way can be created by the simple act of public use since 1976 but all previous public ways still have the effect of law and cannot be closed to the people.

As I've written several times, the Mining Acts contained several important grants not directly related to mining. The only grant that survived the mass repeal of all public grants in 1976 was the mineral estate grant

 

[Clay Diggins]

It is always prudent to copy and past the info into a file that one may use in the future if need be.

Bejay

I just went back into my files and found this by Barry:

RS 2477 (Revised Statutes of 1875) is taken directly from Section 8 of the Mining Act of 1866.

SEC. 8. And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted. The Revised Statutes were the predecessor of the U.S Codes (USC) and like the USC were just a restatement of the already enacted laws.

The wording and the intent remained the same until Section 8 (RS2477) was repealed in 1976 in the Federal Land Policy and Management Act (FLPMA). At that time all existing public ways were grandfathered as a right of way forever. No new public rights of way can be created by the simple act of public use since 1976 but all previous public ways still have the effect of law and cannot be closed to the people.

As I've written several times, the Mining Acts contained several important grants not directly related to mining. The only grant that survived the mass repeal of all public grants in 1976 was the mineral estate grant

Dang Bejay that's been a few years! I've been tooting that horn since before the internet. Glad you are keeping track.

Heavy Pans