The 1866 Mining Act
A section of an 1866 mining law, referred to as Revised Statute 2477 (RS 2477), was intended to promote settlement of our nation’s western territories. To facilitate this development, the law granted rights-of-ways for the construction of highways on public lands that were not reserved for other purposes. The exact language reads: "The right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted."
Repeal of RS 2477 in 1976
With enactment of Section 5 of the Federal Land Policy and Management Act (FLPMA) in 1976, RS 2477 was repealed, although already existing, valid rights-of-ways were not affected. FLPMA sets out a process -- including public participation in the decision-making and long-term management goals for these areas -- for determining reasonable access to public lands.
1980 Enactment of the Alaska National Interest Lands Conservation Act (ANILCA) Like FLPMA, section 11 of ANILCA lays out an updated process to address access to public lands in Alaska.
Hodel Policy of 1988
In 1988, RS 2477 claims skyrocketed when the U.S. Department of the Interior (DOI) issued the "Hodel Policy," which allowed virtually any dirt road, cowpath, footpath, or even dogsled route to qualify as an RS 2477 right-of-way.
Babbitt Policy of 1994
DOI, under Secretary Bruce Babbitt in 1994, placed a moratorium on the consideration of RS 2477 claims under the Hodel Policy. The agency initiated a rulemaking to establish proper procedures and standards for claiming and determining the validity of pre-existing RS 2477 rights-of-way.
The 104th Congress
In 1995, Senator Ted Stevens (R-AK) and Sen. Orrin Hatch (R-UT) unsuccessfully attempted to add RS 2477 language to the National Highways System Designation Act that would have allowed individual state law to determine the validity of RS 2477 rights-of-way claims. Of particular note, the Alaska Federation of Natives opposed this language.
Babbitt Policy of 1997
In January of 1997 Secretary Bruce Babbitt rescinded the Hodel Policy.
The 105th Congress
In 1996, Senator Stevens inserted language in the FY 1997 Omnibus Appropriations measure to thwart DOI’s RS 2477 rulemaking process by putting a moratorium on any final regulation involving RS 2477 validity standards, unless specifically authorized by an Act of Congress.
In 1997, Senator Stevens included a provision in an emergency supplemental appropriations package that would have reinstated the Hodel Policy, promoting the continued explosion of questionable rights-of-way claims and potential development of highways on public lands without any say from federal agencies. In May 1997, Sen. Bumpers (D-AR) sought to strike the Stevens language; this amendment failed by only two votes, with a final tally of 49-51. The RS 2477 issue continued to be controversial, however, in response to opposition from the conservation community and the Departments of Interior, Justice, and Defense. Despite strong criticism from members of his own party for attaching a pet initiative to a major disaster relief bill, Sen. Stevens refused to remove the controversial RS 2477 language during conference negotiations. The bill was vetoed, in large part due to this issue.
Following the presidential veto and discussions with Senator Stevens, DOI agreed to propose legislation within 100 days to address legitimate RS 2477 claims. DOI did so, setting appropriate standards for valid claims, federal decision-making authority, burden of proof for claims, and the appeal process. Congress did not act on this legislative draft.
Current Status
On February 22, 2002, the Bureau of Land Management published a proposed rule pertaining to Conveyances, Disclaimers and Correction Documents (RIN 1004-AD, 67 Fed. Reg. 8216).
The rule was finalized on January 6, 2003. As written, it will allow unlimited new RS2477 rights-of-way on our public lands to be issued, without environmental review, public process, or input from other affected federal agencies.
