Page updated: 10/26/2001 04:52 PM

Introduction:

Often when persons unfamiliar with Jeeping are taken on their first Jeep run they express some surprise that the activity takes place on trails and primitive roads.  The term "off-roading", perhaps coupled with an exposure to the activity limited to having seen a few manufacturer advertisements on television, creates the perception that off road enthusiasts primarily use their vehicles overland and not on traveled ways.  While it is true that in certain areas vehicles are used cross-country, as is the case in open OHV areas, the vast majority of our recreation occurs on roads.  It is just that these roads are in varying degrees of repair and pass-ability.  A trail is really just an unimproved road.

This being the case, our use of public lands is less one of pure "use" and more one of access.  We may be camping, site-seeing, exploring, and just getting away from our otherwise hectic lives.  The Jeeping happens on the routes that get us to these places.  We are not using the land to drive our vehicles; we are using the route.  In this way our interests are somewhat different from most other users, i.e., timber production, mining, grazing, etc.  Even most other recreationists use the land more generally than we do—because we stay on trails our impacts are generally limited to such corridors.  A change in land use designation that did not close existing routes of travel would be almost without effect on our hobby. 

Recently there has been a great deal of controversy surrounding the Clinton roadless initiative.  I encourage everyone to learn as much as they can about the finer points of the roadless initiative and what it says.  The Forest Service website is a good source of information.  However, the roadless initiative is not necessarily the end of our activity that many have suggested.  It has to do with the construction of NEW roads and therefore is aimed, for the most part, squarely at the resource extraction industry.  It does place limits on maintenance of existing routes which might be problematic in the future.  It also removes most local control for, instead, centralized management from Washington, DC which might have a negative effect on the practical decision-making process.  But, in and of itself, the roadless initiative doesn't close any existing routes.  ESA suits and wilderness designation are going to prove to be far more damaging in terms of routes ultimately ending up being closed.

If the roadless initiative is not focused on closing existing routes of travel it is then helpful to know what constitutes an "existing" route.  How did all the Jeep trails out there now come to be?  Are they public?  Are they private?  What rights of access do we, as the public, have in these routes?  Some readers may be aware that the Rubicon Trail is actually a Placer County road.  Others may know that the route into Panamint City through Surprise Canyon is a private road and may wonder how the government can close it down.  This installment of Land (ab)Use will cover the process by which a route over public land becomes established and, based on the routes historic existence, what rights we as the public have to continue to use it.  To that end this article will focus on the hundred year old General Mining Law and an obscure provision, known as Revised Statute 2477, within that law. 

Given the current political climate it is unlikely that the Jeeping community is ever again going to see "new" routes constructed.  Consequently it is important that we use all tools at our disposal to prevent existing routes from being closed.

History:

You may remember from the very first Land (ab)Use article that the federal government originally did, and to a great degree still does, own most of the western US.   At first the government sought to divest itself of these land holdings but then adopted a policy of retention instead.  Whether selling or retaining lands the government was never much concerned about routes of travel.  Routes were needed for newcomers to establish themselves on western lands, to extract resources, to develop land and build cities, to engage in commerce and facilitate the whole process of nation building.  No one much cared about roads other than that they could get you where you needed to go.  Dirt roads and trails spread out westward from the cities east of the Mississippi, at first traveled by horse and wagon and later by vehicles.  People settled the west and property rights accrued to them.

Many acres of public land and hundreds of rights of way were granted by the Federal government during the late 19th century--the era of principal infrastructure development in the West.  Territories were, by law, given certain lands when they were granted statehood.  Transcontinental easements were granted to the major railroad companies in an effort to encourage the construction of a line connecting the West Coast with the larger cities of the East. 

A lot has changed in the west since those early days but, ironically, one of the oldest laws from that time, the General Mining Law of 1872, still is significant for our hobby today.

The General Mining Law of 1872:

We will get to the access-specific rights granted under the mining law via RS 2477 in due course.  First, however, it may be helpful to understand the basic structure of the mining law, its place in the historical context of the development of the West, and the legal issues it was originally drafted to serve.

"Except where otherwise provided [i.e.,by withdrawal, see JA LA #1] all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to be such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States" (30 U.S.C.A 22).

For purposes of regulating resource extraction on public lands the law recognizes two kinds of minerals-- locatable and leasable.  "Leasable" minerals are a creation of the post-retention period when the government had decided that it did not want to lose title to the public lands.  Leasable minerals are principally oil and gas deposits.  These are leased from the government and title remains with the feds.  Once the "minerals" are fully extracted the lease expires.  At all times the federal government retains ownership of the land.

The Mining Law is concerned only with locatable minerals.  Locatable minerals are those that a prospector can "locate" and to which he may stake a claim.  These minerals are clearly delineated as a matter of law and in order to stake a claim the miner must assert discovery on the land of one of the minerals on the list.  (He need not show which mineral unless his claim is challenged).  Gold, silver, and lead are good examples of locatable minerals but so are more modern items such as uranium. 

There are many cases where a person has person sought to gain ownership of land for a variety of non-mining reasons (i.e., to gain title to the land through the patent process because it was a nice spot to build a cabin) by asserting location of questionable (meaning not listed) minerals.  In these cases the courts have invariably found that the Mining Law did not apply because the "strike" was not a locatable mineral under the law. Gravel, mud, and guano are examples of minerals that the courts have found non-locatable.

By way of an interesting aside it should be noted that coal is also a locatable mineral and is theoretically subject to the same laws as general hardrock mining but it is a special subject.  Because coal mining has always been "big business" it is controlled by a more formal legal structure.  As well, coal mining was, at least in the 19th century, mostly confined to the eastern half of the country.  For our purposes it is enough to know that coal mining today is governed by the Surface Mining Control and Reclamation Act (1977) which requires specific measures be met before coal mining operations can be established—both on public and private lands.  It is fair to say that SMCRA was a response to earlier abuses perpetrated by coal mining companies.  The principal requirement under the new law is that now the coal mining companies must post a bond with the government such that the remediation of the land after mining operations cease will be guaranteed and effected.

So, getting back to hardrock mining generally, the miner, having satisfied the land management agency with control of the land that a locatable mineral exists within the "stake", is then given rights to the land in the form of a "unpatented" mining claim.  He then has the right of possession, the right to remove the mineral, more or less the absolute right of control over the claimed land.  Most importantly he can exclude others.  This is referred to in the law as the doctrine of pedis possessio.  He does not, however, own the land.

A Brief Word About Estates in Land at Common Law: 

Fee simple absolute is the highest form of an estate in land which our law, evolved from centuries of English common law, recognizes.  If one owns land in fee simple they own from the heavens to the center of the earth and have the right to control and exclude others from their land.  Most people own real property (land) in fee simple.  There are many other forms of land ownership.  Some of these are arcane and exist only in the minds of academicians who use them on law school property exams to trip up students.  In real life one might see life estates (to possessor for life), split estates (subsurface mineral rights retained by grantor/seller), or a number of grants of interests in land devised through trusts and wills.  A lease, in the context of the landlord-tenant relationship, is the lowest form of an estate in land. 

Patented Mining Claim:

An unpatented mining claim is not ownership in fee.  But it can easily be made a fee.  For a very modest amount, $2.50-$5.00 an acre, an unpatented mining claim can be "patented" and a patented mining claim is a fee simple absolute—total ownership and control.  Given that it is so cheap to perfect rights in land through the patent process one would think that all valuable mining claims would be immediately patented.  This is often not the case. With ownership in fee simple comes liability for a variety of situations that the mining company wants to avoid.  As a result, even major mining operations may take place on unpatented claims.

The General Mining Law After FLPMA:

For a hundred years the basic structure of the Mining Law remained based on miners' customs born of the early years of the Gold Rush.  Minerals could be located, claims staked, the right to work and possess the land attached to the prospector who made the claim.

In 1976 the Federal Land Policy and Management Act was passed.  It was a wide ranging realignment of the laws governing federal public lands generally, not just hardrock mining.  The Mining Law, largely due to lobbying by mining concerns, was one of the areas of land use regulation least affected by FLPMA but there were still changes.  Under the original law "assessment work" had to be done each year to retain control over an unpatented claim.  This was a codification of the early miner custom that one must be actively "working" the claim to maintain control of it.  Under the original Mining Law a prospector did not need to report his assessment work to the government, he only need be able to demonstrate that he was working the claim if someone else challenged him on the point (usually another miner who wanted the stake).  After FLPMA, the miner had to file an annual affidavit attesting that assessment work had been performed or his claim was deemed abandoned.  This was not intended to drive miners off of valid claims, only to clean up the books a bit.  There were many thousands of unpatented claims in the federal register that had not been worked in many years, in some cases operations had been dormant for decades.  The Forest Service and the BLM just wanted to know who was out there and the assessment requirement was a way to clear abandoned claims off the register—after FLPMA if the land management agency didn't hear from you for a year or so your claim was forfeited.

FLPMA also formally nullified section RS 2477, a obscure provision in the General Mining Law of 1866, carried over into the 1872 law, which guaranteed certain rights of access on public lands.  There was, however, as part of the new law, an express "savings clause" that grandfathered in the rights of way established under RS 2477 and in existence before FLPMA.  More on this in a moment.

RS 2477 Rights:

Ok, lots about the Mining Law but what does any of this have to do with Jeep access?  Fair question.  Knowledge of the inner workings of the mining law might not be required to realize the significance of RS 2477 rights but it is helpful.   R.S. 2477, states, in its entirety, "the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted."  Legislative history is nil on this section so it is hard to know why it was implemented.  This is, then, where knowing how the mining law works is important.  Remember that the mining law guarantees people the right to prospect for minerals on public lands, and upon discovery the right to mine and remove such minerals. Consequently, it seems reasonable that RS 2477 was intended to create a right of way to facilitate prospecting, subsequent mining operations, and ultimately the removal of minerals.  Simply put, you were granted the right to put in a road to find and remove minerals from the mine.

But it goes farther than that.  As part of the development of the West wouldn't all roads be constructed in furtherance of development?  Roads leading to a mine were obviously contemplated by the statute but so too the roads connecting towns, places of commerce, railroad heads, the ranches that supplied food that miners ate, and so on.  Therefore it is reasonable to conclude that RS 2477 was intended to give grants of right of way and access wherever such a route might have been needed to facilitate further development of the West.

Although, as mentioned, this statute was repealed by the FLPMA, rights perfected under R.S. 2477 before it was repealed remain in force.   By extension, this means that routes of travel in existence on the day in 1976 that FLPMA was enacted are legally rights of way in the public domain.  They were granted expressly by the law and, because they are public, may not be abandoned.  From the legal perspective, as they are public ways, the ownership of these routes lies with the County where they are located and state and county laws control usage.

The Case:  Sierra Club v. Hodel (10th Cir. USCA, 1988.  848 F.2d 1068)

In an effort to explain the practical applications of RS 2477 rights I might try to fabricate a hypothetical situation by way of example.  Unfortunately I am somewhat lacking in the requisite imagination capacity and there is a real case, as they say in this business, on point.  This case, sometimes referred to as the Burr Trail case, is the most authoritative legal opinion on the subject of RS 2477 rights available.

The Burr Trail runs for 66 miles through federally owned land in Garfield County, Utah.  It connects the town of Boulder with Lake Powell's Bullfrog Marina.  The road at various points traverses across or next to unreserved federal lands, two wilderness study areas, the Capitol Reef National Park and the Glen Canyon National Recreation Area.  The road was established in the late 1800s.  Garfield County has maintained it since the 1940s.  Garfield County proposed to improve the westernmost 28 miles of the Trail from a one-lane road to a two lane graded road.  The Sierra Club, concerned about the impact of the project on adjacent federal lands, sued Garfield County and the Department of the Interior to enjoin the grading.

The two principal questions that the court had to decide were the actual application of RS 2477 (does a route exist?) and the scope (how big—can Garfield County make it wider?).  For our purposes we are concerned mostly with the law as it applies to RS 2477 and the creation of legal rights of way and only secondarily with the scope question.

The court found that RS 2477 rights do in fact exist and the perfection of these rights arise, and are self executing, with use.  The routes then become rights of way vested in the public (through County ownership--the Burr Trail was found to be owned by Garfield County).  This is the "beaten path" doctrine.  The court decided that because the grantor, the Federal government, was never required to ratify a use on a RS 2477 right of way, each use, and new use (more traffic), automatically vested as an incident to the easement itself.  Thus, all uses before October 21, 1976 (the enactment date of FLPMA), whether at that time the route was a Jeep road or a superhighway, not expressly terminated or surrendered, are part of the RS 2477 right of way.

So, RS 2477 rights accrue to a right of way through any use that occurred before the adoption of FLPMA.  Importantly, the right of way usage is governed by state and not federal law.  Finally, the scope of the right of way, which may have originally been determined by earlier use patterns, may be expanded to include newer use demands as are reasonable and necessary even AFTER the new law.  The only way that RS 2477 rights of way may be nullified is through formal surrender or termination.

That was the case law on RS 2477 routes in 1988.  In 1996 San Juan County, Kane County, and Garfield County (Utah) undertook to maintain routes that they claimed were owned by them under RS 2477 law and were promptly sued by the Sierra Club and the Southern Utah Wilderness Alliance.  The action was stayed pending a BLM review of the asserted property rights.  The BLM came back denying that the counties owned the routes because they had not made any formal efforts at "construction" on the routes in the past.  The local judge agreed.  This interpretation is completely counter to existing case law which says that the route comes into existence through self execution upon the mere fact of usage.  The counties have announced that they will appeal this decision and it looks like the case will probably go all the way to the US Supreme Court for a final determination.  In the meantime the case law, for precedent purposes, still reads like the 1988 case because the ruling in 1996 was a lower court ruling.

There are several other cases that discuss the application of RS 2477.  Among those was Wilkenson v. Department of Interior (634 F.Supp. 1265, 1986) in which the court held that the National Park Service may regulate but not prohibit access pursuant to an RS 2477 right of way created before a National Monument was established.  In United States v. Vogler (859 F.2d 638, 1988) the court stated that the NPS can regulate use of RS 2477 routes by miners to "conserve natural beauty".  The miners sought to argue that no regulation was allowed because the right of way predated the nature preserve—that access, not conservation, was the legally paramount use.  They lost but the existence of RS 2477 rights was not in dispute and, while access could be regulated, the NPS, again, could not deny them access.

What Does It Mean? or, Get Out Your GPS!

RS 2477 rights exist through mere demonstration of ANY use prior to 1976.  You have to plot the route and find some way to prove that it was in use before 1976.  Old maps, affidavits by persons who will swear to the routes pre-FLPMA existence, newspaper articles, county surveys, highway department records, old photographs—anything that will show the route has been there, and in use, for a number of years, is valuable.  What you are doing is essentially a little leg work for the County where the route is located—any pre-1976 route belongs to them (and they are alot more likely to side with keeping the route open than the Feds) but they often cannot be bothered to chronicle every little Jeep road out there.

You can engage in this exercise when you hear that somebody is interested, either the land management agency or a sue-happy environmental group, in closing down your favorite trails.  Or you can be proactive and document the existence of the route now.  In the best case scenario you can file your maps (copies, keep the originals for yourself) with the county supervisor so that the route is on record. Particularly note any routes that the county, through past or present maintenance obligations or inclusion on an official survey, has explicitly taken control over.

Several fellow Jeepers have asked me why the route into Panamint City through Surprise Canyon can be closed as it is understood to be a private right of way held by the parties who hold title, also privately, to the land on which Panamint City sits.  The short answer is I don't know.  I am unfamiliar with the particular form of this right of way.  Perhaps in negotiations with BLM the private landowners have surrendered the right of way.  However, it seems to me that the route is an RS 2477 granted right of way (Panamint City having been founded as a mining town) and such rights cannot be surrendered unilaterally by one party.  Further, while BLM can regulate access, it cannot prohibit access.  The route should be an existing right of way, pre-1976, and owned by and governed by the laws of Inyo County.  I presume that if the current ACEC study required under the Center for Biological Diversity lawsuit settlement comes back recommending permanent closure of the route, the RS 2477 rights argument will be made in ensuing litigation.

Lastly, a few caveats.  The RS 2477 provision applies only to Federal lands.  RS 2477 routes need not have been created for the purpose of accessing mining areas—any pre-1976 usage creates a right of way.  In practice, categorization of an existing route as an RS 2477 right of way must be argued before closure—using the provision to reopen a route will be difficult because a party supporting the closure will argue surrender or abandonment.  Upon demonstration of the RS 2477 route's existence, ownership of the route becomes vested in the county where the route is located.  The county must assert this ownership right in any litigation attempting to close the road.  Finally, depending on the outcome of the Utah case, understand that mapping routes may prove to be for naught.  If the Supreme Court says that a RS 2477 route does not self execute through use but must have been subject to "improvements" by the county before ownership in the right of way vested with the county, then ownership and control of these routes will revert back to the Federal government and it will be free to close them all if it so chooses.

For more information go to www.rs2477roads.com and watch for further legal developments in the Utah case.  In the meantime, see you on the trails!