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Hastings Law Journal

Abstract

Throughout the west, efforts to protect wild lands are being hampered by counties' and states' assertions of road ownership on public lands. On several occasions in the past decade, rural westerners have climbed atop bulldozers and scraped roads across some of the nation's most pristine lands, including National Parks, National Forests, and National Monuments, in the latest battle of the "sagebrush rebellion." The cover of Time magazine made one bulldozing county commissioner, Dick Carver of Nye County, Nevada, a folk hero for many rural westerners. Other counties' deployment of bulldozers has landed them in court, where they defend against the United States' claims of trespass by asserting ownership of the roads and the right to maintain and improve them as they please.

Underlying these sagebrush rebels' claim to ownership of thousands of roads across federal lands is an ancient and terse federal statute known as R.S. 2477. Enacted in i866, R.S. 2477 granted the right of way for the construction of highways across public land. Repealed in 1976, R.S. 2477 is a relic of a past era. Nonetheless, because there has never been an effective mechanism for identifying and validating claims, R.S. 2477 continues to foment conflict on the public lands.

The R.S. 2477 crisis is one of the oldest and most important in federal natural resources law, potentially impacting millions of acres of federal land in nearly every western state. This article examines the reasons driving this "bulldozer diplomacy" and proposes a solution. It argues that the federal Quiet Title Act, which has been the means for judicial resolution of title claims against the United States, is an ineffective mechanism for addressing states' and counties' claims to road ownership under R.S. 2477. The article further argues that the Interior Department should exercise the primary role in resolving the R.S. 2477 crisis by creating and implementing an administrative process to interpret R.S. 2477 and adjudicate individual claims. The enhanced role of the principal land management agency, analogous to its determination of property rights arising under the mining laws, would be consistent with its historical, sweeping authority to administer the public lands. It would also be consistent with long-settled principles of administrative law, notably the doctrine of primary jurisdiction. Finally, the article suggests a two-tiered administrative process that would interpret R.S. 2477 through rulemaking procedures and resolve individual claims through compulsory adjudications while allowing for substantial public participation at each step of the process.

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