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Highway Rights of Way on Public Lands: R.S. 2477 and Disclaimers of Interest

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Abstract:

A succinct provision in an 1866 statute known as "R.S. 2477" granted rights of way across unreserved federal lands for "the construction of highways." The provision was repealed in 1976 by the Federal Land Policy and Management Act (FLPMA), an act that also protected valid rights of way already established by that time. What definitions, criteria, and law should be applied to confirm or validate these R.S. 2477 rights of way has been controversial. The issues are important to states and communities whose highway systems are affected, and also because the rights of way may run either through undeveloped federal lands that might otherwise qualify for wilderness designation, or across lands that are now private or within federal reserves (such as parks or national forests) created after the highways might have been established.

Section 315 of FLPMA authorizes the Secretary of the Interior to issue a "disclaimer of interest" if an interest or interests of the United States in lands has "terminated by operation of law or is otherwise invalid." A disclaimer is a recordable document that can help remove a cloud from land title because it has the same effect as if the United States had conveyed the interest in question. The Department of the Interior has finalized amendments to existing regulations on disclaimers of interest that allow states, state political subdivisions, and others to apply for disclaimers that previously were time-barred. A recent Memorandum of Understanding (MOU) between Utah and the Department of the Interior establishes an "acknowledgment process" whereby R.S. 2477 rights of way on certain federal lands can be validated and a disclaimer to them issued by the United States. Several other states have requested negotiations to develop MOUs regarding R.S. 2477 rights of way.

The disclaimer regulation changes are controversial for many reasons; one of which is that Congress in § 108 of P.L. 104-208 prohibited regulations "pertaining to" R.S. 2477 from becoming effective without Congressional approval. The use of disclaimers to acknowledge R.S. 2477 rights of way is also controversial because the criteria that will be used to determine the validity of asserted R.S. 2477 claims are not set out, and without clearly stated criteria and standards, it is not clear whether the terms of § 315 have been met whether a disclaimable interest of the United States has terminated or not. Most agree that a resolution of R.S. 2477 validity issues is desirable, but there is disagreement on standards and on whether and how the Congress and the courts should be involved. H.R. 1639 in the 108th Congress would authorize a process for determining the validity of R.S. 2477 claims and define crucial terms for those determinations. A House-passed amendment to FY 2004 Interior and Related Agencies Appropriations (H.R. 2691) would have prohibited implementation of the disclaimer regulation amendments in certain federal conservation areas, but was removed in conference. This report reviews the disclaimer provision of § 315 of FLPMA, the Utah MOU, the R.S. 2477 grant to construct highways and interpretation of it, the relationship of the new disclaimer regulations to that statute and to the statutory prohibition against rules that "pertain to" R.S. 2477, and H.R. 1639. It will be updated as events warrant; see CRS Report RS21402 for information on recent events.