In 1866, the Mining Act included this provision (now known as RS-2477): “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” What this means and how it is applied has become an issue with local governments in recent years where federal land managers have wanted to reduce roads or limit access. It generally means that if a road predates the establishment of a National Forest, the Forest Service can not interfere with valid uses. The process requires a quiet title action in federal claims court.
Here is a recent battle brewing in Colorado, where one county is actively seeking jurisdiction over 17 roads and trails in three counties, one of the trails being targeted for closure to motorized uses through the San Juan National Forest Travel Plan. Another county wants nothing to do with it. Montezuma County believes it has maps that prove its case, but the Forest Service disagrees. Here is their response:
If the information relying on maps is the only county proof that the roads and trails qualify for RS2477 status, then “the basis for the resolution is insufficient,” Padilla wrote.
He said the Forest Service is not against evaluating RS2477 assertions, but that the county bears the burden of proof.
“I know the county believes the converse is true, but that is not supported by current law, policy or regulation,” Padilla stated.
The national forest sees the county’s RS2477 resolution as nonbinding.
Routes currently designated as nonmotorized or are closed for public use will continue to be managed that way until the county validates their assertions through a legally recognized process, Padilla said.
“This means that violators would continue to receive citations,” he said.
Padilla added that there are current cases to support this position, including one in San Juan County, Utah, that involved county commissioner Phil Lyman, who received a ticket for driving an ATV on a nonmotorized route during a protest ride.
Where Dolores County disagrees is whether the Forest Service will “fight it,” which affects the cost side of the ledger for the counties. I’m not aware that DOJ has ever conceded a RS-2477 case where the land management agency disputed the existence of the right-of-way. But under this Administration, maybe Dolores County is wrong in thinking they should not “deceive ourselves that routes will just be given to us.”