Memorandum of Understanding:
Department of the Interior and State of Utah
Resolution of R.S. 2477 Right-of-Way Claims
Cooperating to Resolve a Conflict: Protecting Natural Resources and State Infrastructure
• The Department of the Interior and State of Utah are resolving a controversy that has resulted in years of uncertainty about right-of-way claims on federal lands through a Memorandum of Understanding (MOU).
• The MOU establishes a process to resolve many of the longstanding disputes over R.S. (Revised Statute) 2477 rights-of-way in Utah. The right-of-way acknowledgement process under the MOU does not apply to environmentally sensitive areas such as national parks, refuges, and wilderness areas.
• R.S. 2477 was a Homestead-era federal law in place from 1866 until 1976. It states that “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” States and local governments throughout the western United States used R.S. 2477 to construct the roads that are the foundation of the transportation infrastructure in many States. The statute allowed local governments to acquire a property interest in roads and other public highways they constructed across unreserved federal land.
• Unresolved conflicts over the status of rights-of-way created pursuant to R.S. 2477 have created “a continuing cloud on Federal agencies’ ability to manage federal lands,” according to a June 1993 Department of the Interior Report to Congress.
• In August, 2002, a bipartisan group of eight western governors urged that Interior “bring finality” to R.S. 2477 disputes in a “cooperative manner.”
• On July 16, 2002, the National Association of Counties adopted a resolution urging the Department of the Interior to adopt a policy approach to R.S.2477 rights-of-way that would allow counties to “maintain historical rights of way across federally managed lands.”
The Solution: Acknowledging Publicly Traveled and Regularly Maintained Roads in Utah
• Through the MOU, Interior and the State of Utah agree to focus their limited resources on acknowledging those R.S. 2477 rights-of-way that are unquestionably part of the State’s transportation infrastructure.
• The MOU provides a simple acknowledgement process that applies to existing publicly traveled and regularly maintained roads in Utah.
• The State of Utah has spent many years and millions of dollars cataloguing, photographing, documenting, and verifying the history and use of many roads in the State. Through this process, the State has filtered out some R.S. 2477 proposed claims and developed the evidence that will be used to submit acknowledgement requests for well-documented roads under the terms of the MOU.
The Solution: Recognizing the Special Nature of Parks, Refuges, and Wilderness
• The MOU excludes national parks, refuges, and wilderness from the acknowledgement process of the MOU. The State of Utah has also agreed to work cooperatively with the Department of the Interior to minimize trespass situations on roads outside the scope of the MOU.
The Details: How Will the MOU Work?
• The MOU sets forth a process to acknowledge existing roads that were and continue to be publicly traveled and regularly maintained.
• Under the MOU, if, for example, a road currently disturbs the ground to a width of twenty feet, Interior will acknowledge that width. If a road is currently a gravel road, Interior will acknowledge it as a gravel road. A dirt road could not be transformed into a wider paved highway under the terms of the agreement without additional review by the Interior Department.
• Under the MOU, a road cannot be substantially changed beyond the scope of routine maintenance by expansion or relocation without additional review by the Department, and this allows counties to maintain the character, usage, and travel safety of the road existing at the date of the MOU.
• The Department will use the recordable disclaimer of interest process to acknowledge asserted rights under the MOU. This process, which includes an opportunity for public participation, provides a mechanism for acknowledging claims when requirements of applicable statutes, regulations, and the terms of the MOU have been satisfied.
Moving Forward through Cooperation
• An Interim Policy on R.S.2477, issued in 1997, will continue to apply to all other requests for rights-of-way acknowledgement. However, other interested states and counties may submit to Interior for consideration proposed memoranda of agreement that are generally consistent with the principles of the Department’s MOU with Utah.
• Federal, state, and local land managers and environmental advocacy organizations have all demonstrated a desire to put disputes surrounding R.S. 2477 to rest and move towards an approach to land management that emphasizes cooperation. The MOU between the Department of the Interior and the State of Utah exemplifies a cooperative approach to resolving R.S. 2477 issues.