BLM Administrative Determinations on R.S. 2477 Rights-of-Way

Section 8 of the Mining Act of 1866 provided: “and be it further enacted, that the right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” The statute was self enacting; rights being established by “construction” of a “highway” on unreserved public lands, without any form of acknowledgement or action by the Federal government. This section of the statute was later re-codified as Revised Statute 2477.  R.S. 2477 was repealed by FLPMA on October 21, 1976, with a savings provision for rights established prior.

The BLM does not have the authority to make binding determinations on the validity of R.S. 2477 right-of-way claims.  The BLM may, however, make informal, non-binding determinations (NBD) for its own land use planning and management purposes.  Such determinations must be based in the particular laws of each state in which a claimed right-of-way is situated.  In Utah, applicable State code provided for the acceptance of a right-of-way pursuant to R.S. 2477 across public lands not reserved for public purposes when a right-of-way had been used by the public for a continuous 10 year period.  In recognition that NBDs do not create binding legal rights, current policy direction is that the process for making determinations be as simple and straightforward as possible.