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Redpaw
A BRIEF EXPLANATION OF RS 2477
RS 2477 RIGHT OF WAY HOMEPAGE



RS 2477 is a statute adopted in 1866 to facilitate the settlement of the West by encouraging the development of a system of roads and trails. The name "RS 2477" is an abbreviation of "Revised Statute 2477." That name, in turn, comes from the placement of the original law in a reorganized version of the U.S. Code.



RS 2477 is a very short law, consisting of only one sentence. It states, in its entirety, that " the right of way for the construction of highways across public lands not otherwise reserved for public purposes is hereby granted." That right-of-way is a legitimate property right, and, consequently, carries with it a bundle of associated rights, including the right to maintain the roads and upgrade them under certain circumstances.



Once the grant was made, the federal government's interest in the land actually containing the right of way became that of the servient estate. That means that its rights as owner of the underlying land are still protected against undue or unnecessary damage, but it cannot interfere with the owner of the right-of-way exercising its bundle of rights.



These property rights are held on behalf of the public, usually by the counties. In accepting the property right-of-way, the local governmental unit also accepted a legal obligation (and the consequent legal liability) to maintain those rights-of-way to ensure safe passage by the public.



RS 2477 was a self-executing law, meaning that when the requirements of the law were met, the property right was automatically conveyed from the federal government to the county. Indeed, there was never even a requirement that the county inform the federal government when it accepted the grant of a particular right-of-way. The specific actions which local governments took in accepting the grant vary from state to state and have been determined by each state's law.

State law can also determine such things as the width of the right of way.



RS 2477 was repealed in 1976 by a law establishing a more comprehensive resource management framework for the Bureau of Land Management, the Federal Land Management and Policy Act, commonly referred to as "FLPMA." However, FLPMA specifically and clearly stated that all existing 2477 rights of way were not affected by the repeal of RS 2477 and remained valid. It contained in its Title V a new mechanism for granting rights-of-way from 1976 to the present.

So, while no new grants were made after 1976, all of those made prior to that time were still valid property rights of the counties.



The federal land management agency cannot determine whether the claim is valid or not except for its administrative purposes. Under our Constitution, only the courts can do that. Much of the recent controversy surrounding the 2477 issue has been sparked by draft regulations issued by the U.S. Department of Interior which local governments and others claim try to exceed the authority of the Executive Branch under the Constitution as well as suffering from a number of other serious shortcomings as well.


If, based on the documentation the county provides, a federal agency recognizes the validity of a 2477 right of way claim, then it is bound by the right of the local governmental unit to exercise its bundle of rights. If it does not recognize the validity, then the right-of-way holder can still exercise its right. Where a dispute cannot be resolved, the issue goes to federal court for a decision.



Counties can abandon 2477 rights-of-way, but usually must go through formal procedures specified in state law to do so. The lack of maintenance of the road over a right-of-way has no bearing on the continuing validity of the right-of-way. One of the bundle of rights of the local governmental unit is to maintain a safe right-of-way and even to upgrade it within limits.
vcb
hey all! im new here


nice explaination of 2477 ROW

just thought that i would add that within the last year the federal courts have been legislating from the bench and have decided that an individual can NOT assert their rights----- when it comes to 2477.. it must be a governmental agancy that does the asserting. now the big question is what happens when both the county and the fs want to take the very right that only they can assert.
yup, and it is happening all over the west at a very fast pace. insiders at tnc believe that within 5 years there will be no travel in the forest.

any mine that has a way to get to it has a 2477 ROW as access. if the road predated the fs (roughly 1906-1914 in co) that means that the fs came after the claimant and yet the fs will lay claim to the roads and the authority over them. in boulder county the county is giving the fs jurisdiction over county roads simply by removeing the roads from the maps , with no hearings and no vacation. a new slant is that the county feels that a good end run around vacation is closer. they erect gates and deny access to some/most of the public, but still allow travel for others.
ill be back for more

glad to find this site
vb
Redpaw
Hello VB,
We are glad you found this site as well, even though it appears that many of us are miners we are first and foremost land use advocates and believe in fighting for our rights to access and use our lands.

You are right, there are alot of messed up policies taking effect and we as miners alone tend to feel the brunt of most changes, afterall we need those roads just as much if not more than all other outdoor users.

We welcome any and all of your friends who care to come on by here and participate in discussions over land use and land policy, and as such if you know of other forums out there with similiar issues that you feel we could go and speak about these issues then please speak up.

It's time to keep a eye on our lands,

Redpaw
russau
hi VB! welcome to this neat site! i got a question. what is the tnc you refer to in your post? if you are interested in this topic(as i assume you are)! try looking at www.plp2.org site. i think youll enjoy this site.
vcb
russau

im on a private list that includes plp folks, tnc is the nature concervancy

repaw
http://www.colorado4x4.org/vbb/forumdisplay.php?f=14

also toward the top of the page is a link to the pirate board land use as well


the folks postin on pirate are very sharp and up to date

http://www.cohvco.org/

these folks are fighting for roads in co and our lawyer there came from the mountain states group

im not only a jeep nut and off hiway driver, my family has 4 patented claims in boulder county. talk about being in the middle of it!!

i have a 140 year old road to and through my place and my patent is 1872 and the mill sight is down on the main hiway and the county tells me i need to prove legal access,and the
fs tells me that i need a permit, yada yada to drive through the part of the road that goes through what is now fs land . yet they drive through my place daily with no permission at all

i have been involved in a battle over an illegal closer by a property owner on county road 87 also known as barking dog, and im fixin to make a point on another illegal closer on 87j.

just geting ready to start mineing and am surfin to learn

glad to meetcha
russau
same here vb! i was afraid the tnc was what i was thinking you ment! but wanted it clarified! it seems that the more i learn, the worse off we are! and the more i see we need to get somethings done! the clinton years really put a up surge in these greens!moreso than any other times! we need to kick them out of gear! but they have a thick wallet! and the way to do it is through education of the people that need/want to know! thats why i belong to the dredge earth first group,plp,resources coalition, blue ribbion coalition,GPAA,miners response team,and i go out and try to be a speaker at various group meeting s trying to get the word/information out! this is also why we at DEF put on these rallys to educate the people that need/want to know the truth! and everyone NEEDS to be informed!
vcb
http://members.tripod.com/knik_alaska/id78.htm


2477 reading for those interested
59er
Here's a press release about a recent big victory for private landowners in a R.S. 2477 case in Colorado.

COURT RULING HELPS PROTECT PROPERTY RIGHTS IN COLORADO AND THE WEST For Immediate Release: May 21, 2005 Contacts: Mark Boslough, Defendant AJ Chamberlin President, Property Owners for Sensible Roads Policy, COURT RULING HELPS PROTECT PROPERTY RIGHTS IN COLORADO AND THE WEST

Colorado private property owners, who have been suffering the consequences of a legal loophole left over from a 1860s-era law referred to as Revised Statute (R.S.) 2477, had some good news in the form a Federal District Court ruling last Friday. Judge Wiley Y. Daniel of the U.S. District Court for the District of Colorado ruled that individuals (as opposed to governments) can't use R.S. 2477 to assert public highway claims to old mining routes across public lands - routes that often cut through other landowners property. R.S. 2477 granted highway rights of way under limited circumstances over public lands. Congress grandfathered existing highways when it repealed the law in 1976, but failed to clarify what constituted a RS 2477 highway. That has led to significant controversy, contention, and ambiguity for private property owners, counties, states and federal land managers.

Mark Boslough, a member of Property Owners for Sensible Roads Policy and defendant in the case said, "I'm happy that the judge found that R.S. 2477 could not be used to establish a highway across public land for motorized access to my family's property." Mr. Boslough added, "Four-wheelers have long argued that they have the right to use our property for recreation. My case is not entirely over, but this ruling shows that they were wrong about that." "Mark's case should be a warning to other property owners in Colorado and beyond," said AJ Chamberlin, President of Property Owners for Sensible Road Policy and a victim of "R.S. 2477" harassment. "Some are trying to use this old, repealed law as a battering ram to push through private property across the West. Although most people have not heard of R.S. 2477, its potential impact is unbelievably huge, affecting ranchers, hunters, homeowners - everyone. Anyone that has a mining claim or homestead near their property or even those that live close to open space, forest land or BLM lands should be very concerned."

Private land owners whose property became private land through homesteading or other transfer from the federal government may be subject to R.S. 2477 highway claims. Until Congress passes legislation that clearly states what is and what is not a "constructed highway" under R.S. 2477, all landowners are at risk. "The bottom line is that Congress needs to pass legislation with consistent standards and deadlines to adequately protect property owners. Nothing less will do," Added Mr. Boslough. "My family should not have had to spend our resources defending our property rights, and I wouldn't wish our situation on anybody else."

Colorado Representative Mark Udall has worked on legislation that would resolve issues related to R.S. 2477 which Property Owners for Sensible Roads Policy supported. Recently the Colorado General Assembly recognized R.S. 2477 as a big problem to Colorado residents and passed a resolution, with overwhelming bi-partisan support, calling on Congress to fix this issue. Property Owners for Sensible Road Policy will continue to urge Congress to pass legislation that resolves the ambiguity created by R.S. 2477.

For more information, including examples of other private property owners harmed by highway claims under the old law, visit www.posrp.org. ### Property Owners for Sensible Roads Policy -- President: AJ Chamberlin 2425 Canyon Blvd. #110, Boulder, CO 80303 email: aj@boulderco.com
vcb
this is the battle that i have been in since 99. mark boslough has illegally blocked a public road. i have been deposed by his lawyer and his lawyer has no evidance at all that the road is any thing other then public. the public road through his property has been used continuosly by the public since 1875 till he blocked it in 99. the man sueing him is a miner. boslough is preventing a man in his late 80s from reaching his claim by vehicle. and also preventing the public from useing their row
vcb
the legislation that they are promoting is that of mark udall. ever read it????
CP
Sorry Vcb but we need to keep the personal remarks out please and thanks.

We are all very interested in this issue and we would like to know more of the facts.
The property owners both of mining claims and private property are in a real spot with the RS 2477 issue.
Some are finding themselves on both sides of this issue by owning both mining claims and what is now referred to as "private" property. In reality there is absolutely no difference between "patented" and "private" properties...Patented claims are deeded to the owners as is private land.

As directors of the new Colorado PLP office, we would like to know more details on this particular issue involving 2477.

Lets hear what everyone has to say about this.

Sorry everyone.....we don't edit very often here.
Lets keep it to the facts and remember to be respectful of others.

CP
plp.001
Let me say first of all, whoever wrote the above article apparantly knew nothing about RS 2477.

It never refered to highway grants, it deals with rights of way and it is part of the Mining Act of 1866.

This would lead me to believe that it was put in place to protect the rights of the public to ingress and egress on the public lands. In particular the right to access public lands for the purpose of prospecting for minerals and of course that would leave the land open to access for the public for what ever reason.

The RS 2477 is a very short paragraph in the mining law and should be read with simplicity. In 1976 with the Congressional Act of FLPMA, all roads between the years of 1866 and 1976 are grandfathered in as RS 2477 rights of way.

Legislating from the Bench is nothing new and it is getting more invasive on rights of the public all of the time.

Jerry
59er
CP, I'll try to help.

The lawsuit was:

Civil Action No. 04-cv-00422-WYD-MJW

JOHN RAMEY, Plaintiff

v.

MARK BOSLOUGH,
BOSLOUGH ELRICK FAMILY REVOCABLE TRUST,
MAYA ELRICK,
KRISTA ELRICK,
ELRICK BLANCHARD REVOCABLE FAMILY TRUST,
DAVID WARREN,
ANNETTE NELSON,
BRIAN L. NELSON,
KENNETH TALLMAN,
DAVE H. INSKEEP,
MARY K. INSKEEP,
FEE TITLE OWNERS OF THE 4TH OF JULY LODE MINING CLAIM,
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF BOULDER,
UNITED STATES OF AMERICA,
DEPARTMENT OF AGRICULTURE,
UNITED STATES FOREST SERVICE, Defendants.


Mr. Ramey, in addition to suing all of his neighbors, sued both Boulder County and the U.S. government. The lawsuit was thrown out of Colorado District Court in January, 2004, and was tossed from Federal Court in May, 2005. Ironically, it was the 10th circuit decision (brought by four-wheelers) in Southwest 4WD Association v. BLM that provided the controlling case law. The off-road establishment inadvertantly created case law that cooked its own goose, saving the defendents a lot of time, trouble, and expense!

Correcting some misstatements by vcb (above): Mr. Ramey testified during depositions that he is in the real estate business (he is not a miner). He made his fortune by buying and selling land, and by developing a subdivision in Lyons, Colorado. He also admitted that he does not require the disputed portion of the alleged right-of-way for access to any of his property. The disputed segment is a well-known footpath known locally as "Barking Dog Trail". It was historically respected as private property, and the owners have permitted foot traffic for years. It follows the route of a stream bed on a patented placer, and then crosses the old Smuggler mine tailings, terminating at site of the old Balarat Mining Camp (also on private property). In the 1990s it was discovered by jeepers who tried to widen it to road-width and use it for rock crawling. It was blocked to vehicle access by a group of landowners in 1999 who wanted to reclaim the stream bed and mining dumps that were being torn up by joy-riding four-wheelers. The owners felt that their private property rights trumped the "RS 2477 rights" these kids were demanding for motorized entertainment.

Here is a recent photograph of this so-called "highway":




After 4-wheelers continued trespassing from a different direction, the landowners petitioned the Boulder County Commissioners to put up a gate at the end of a county road that led to the property. This was done by the county in the summer of 2001. Barking Dog Trail is recognized as private property by all government authorities and by all private landowners in the area except for Mr. Ramey.

Some off-road recreation activists have claimed that an old county road map shows the trail was a county road back in the 1940's and 1950's, but the road shown on that map is in an entirely different section, and if it ever existed it did not traverse the same property.

These facts (as well as a lot of misinformation) have been hashed and re-hashed elsewhere on the web. The pirate4x4.com web site (not as civilized as this one) has some threads with relevant links here:

Pirate4x4.com and private property

You can get a sense for the attitudes of the offroad recreation establishment and their position on private property rights (and their opinion of landowners) by browsing through the various threads shown on the above link.

Here's a thread that has some useful links with maps and legal documents:

Pirate4x4.com and Barking Dog Trail

Here's a thread that has comments of a Colorado attorney and law professor "Plez" who is an RS 2477 expert and successfully defended another rural landowner in another bogus lawsuit in Teller County, Colorado:

Pirate4x4.com, Ramey v. Boslough

Hope this helps!
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