Endurance.Net Ridecamp Archives

RS2477 is kinda interesting....I knew of this, but thought it applied only
to "highways".  However, perhaps it COULD also apply to trails.

Look here:

http://www.rs2477roads.com/

If you search RS2477 on "Google" you will also get some dissenting
opinion......


Here is an excerpt:

"There is also no limitation on the nature of use necessary to perfect a
highway right-of-way under R.S. 2477. A road need not be heavily traveled to
constitute a highway. "User is the requisite element, and it may be by any
who have occasion to travel over public lands, and if the use be by only
one, still it suffices." Wilkenson v. Dept. of Interior, 634 F.Supp. 1265,
1272 (D. Colo. 1986).

"Highways" under 43 U.S.C. 932 can also be roads "formed by the passage of
wagons, etc., over the natural soil." Central Pacific Railway Co. v. Alameda
County, 284 U.S. 463, 467, 52 S.Ct. 225, 226, 76 L.Ed. 402 (1932)

Id. A footpath, livestock trail or a four-wheel-drive road can be an R.S.
2477 right-of-way, so long as the public used it whenever necessary or
convenient for the requisite time period or maintenance by a governmental
entity can be shown. See, e.g., Boyer v. Clark, 326 P.2d 107, 109 (1958).

The proposed federal regulations, by their focus on construction for "the
passage of vehicles" are clearly intended to defeat public access rights for
footpaths, horsetrails and the like, contrary to the opinions of the federal
courts which have dealt with these issues. 59 Fed.Reg. at 39225, 39226
(Proposed 43 C.F.R. 39.3(f), (k) and 39.6(c)(9)(II). They also are intended
to defeat rights acquired by public use alone. Id.

The existence of a perfected public access right under R.S. 2477 leads next
to the question of the scope of the right which has been accepted. While the
existence of public access trails, horsepaths, four-wheel drive roads and
roads appropriate for passenger and other vehicles may be controversial, the
question of whether, and to what extent, these valid existing rights can be
maintained or improved constitutes a central issue in the new challenges to
R.S. 2477."

It would be interesting to see what the courts would rule on the FS new
regulations if someone challenged them in court using RS2477over some of the
trails.  MANY have been used decades or more as connector trails to FS
roads.

Jim, Sun of Dimanche+, and Mahada Magic




----- Original Message ----- 
From: "Lif Strand" <lif@xxxxxxxxxxxxxxxx>
To: <ridecamp@xxxxxxxxxxxxx>
Sent: Monday, March 15, 2004 11:24 PM
Subject: Re: [RC] wilderness, HR 2966


> At 07:47 PM 3/15/2004, Nancy Reed wrote:
> > Even if you have not personally experienced a problem with trail loss,
> > please take a minute and email your representative and ask that they
> > co-sponsor the bill.  You may not have a problem today, but there are a
> > whole lot of tomorrows still to come.  On a personal level it really
makes
> > me mad that my tax dollars are being spent to keep me out of the land my
> > tax dollars bought.
> Anyone interested in pursuing this might look into the RS2477 road concept
> and law, which deals with roads, highways, *trails* and
> stream beds established as historic travel routes which cannot simply be
> closed by federal agencies because these roads are not owned by them and
> they do not have ultimate say over them.
>
>
> ________________________________
>     Lif Strand      fasterhorses.com
>             Quemado NM USA

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