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Keeping our Rights-of-Way: On the Trails of RS 2477

Last November we published Ben Barr’s One Thousand Roads to Liberty: The Unexamined Case for RS 2477 and Sovereignty (available for download as a Liberty Brief).  The paper details the history of RS 2477, a federal law passed in 1866 that provided for a “right of way for the construction of highways over public lands, not reserved for public uses,” and what it should mean for Wyoming. 

blm sign 300x225

During the days of America’s westward expansion, it was necessary allow settlers to get where they were going and to be able to utilize the areas that they settled.  RS 2477 remained law for over 100 years, until it was repealed by the Federal Land Policy Management Act (FLPMA) in 1976.  But here’s the kicker: all rights-of-way created before the FLPMA remain!

Last week I headed up to Thermopolis for a few days of on-the-ground research.  Hot Springs County, like many western Wyoming counties, is made up of a lot of federal land (around 44%), mostly under the supervision of the Bureau of Land Management (BLM).  Hundreds of roads and trails crisscrossed all over federal land in Hot Springs before 1976, and these rights-of-way remain in use today.  However, the use of these trails and roads has always been presumed, and since the law does indeed protect this use, this is valid. 

The problem is that this provision of FLPMA, like many federal laws and policies, might be ignored by the federal agencies charged with enforcement.  In Utah, for example, the BLM closed some RS 2477 roads around the turn of the 20th century, requiring Kane County to assert its rights in federal court.  Kane County prevailed, but Wyoming should not wait for BLM or any other federal agency to infringe upon rights-of-way before defending them.  Furthermore, as I discovered on my trip to Hot Springs, many of these rights-of-way are not easy to find, so it’s imperative that they are verified and recorded before the federal government is in a position to deny that they ever existed or have been abandoned.

Take, for example, these “primitive roads” marked on a WYDOT map from 1998 (marked with green dashed lines):

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(Part of R 93 W, T 44 N on the U.S. Geological Survey)

A map from 1960 confirms that many of these primitive roads existed before the 1976 cutoff, and they are indeed still there:

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Sometimes, however, just barely:

rs2477c 300x225

Our on-the-ground work on RS 2477 is just beginning.  This Hot Springs trip proved very fruitful, but also showed what a monumental task it will be to document every right-of-way in Wyoming.  It’s also important not to get too far ahead of ourselves: although FLPMA acknowledges pre-1976 rights-of-way, our current Wyoming state law closes out the recognition of public roads before 1922.  Come the 2013 Legislative Session, legislators may consider giving county-by-county authority (and possible state support) for recording RS 2477 roads—giving county commissioners a more liberty-friendly way to spend their time than some recent efforts.

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Wednesday, 20 September 2017
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