RS 2477 Access Validated
By Custer County, Idaho
by Fred Kelly Grant
On December 1, 2011, Custer
County, Idaho made history by validating two RS 2477 rights of way on the
same day. One that crosses land managed by the Bureau of Land Management
and one that crosses land managed by the United States Forest Service.
For several months, Trademark
America has assisted Custer County, Idaho Commissioners in implementing
the hearing process required to validate public rights of ways across the
public lands. Fred Kelly Grant served as the hearing officer for
the County.
The Commissioners’ decisions
validated the existence of the rights of way, both of which had been closed
by the agencies. The decisions were issued after consolidated public
hearings held pursuant to the Idaho statute that establishes the procedure
for validating RS 2477 rights of way. The term “RS 2477” refers to
Revised Statute 2477 enacted as law in 1866. The Statute provided
that any person could establish a right of way across public lands.
The first of the roads considered
by Custer County was historically established for access to and from mining
claims that were filed prior to creation of the National Forest that now
is included in the Sawtooth National Recreation Area.
The road has been closed
to motorized access by the Forest Service. Evidence produced at the
hearing showed that the road provided access to historic mining claims
that are still active and valid. A witness, Alan Henderson, researched
all the claims, their locations and the dates of activity. He produced
the claim documents and testified that he had travelled the road and seen
the sites of the claims.
The second road was closed
by the Bureau of Land Management. Evidence showed that the road served
as access to a public park or picnic area created at taxpayer expense,
and to grazing allotment fences that have to be maintained by the ranchers.
The evidence also showed that the road was established prior to 1976 which
was the year in which the Federal Land Policy Management Act repealed RS
2477. The repealing language provided that any right of way already
established a the time of repeal remained valid.
The Commissioners’ decisions
validated both roads as RS 2477 rights of way that cannot be lawfully closed
by the agencies. The Commissioners issued Findings of Fact and an
Order that the Forest Service and BLM remove the blockages to the roads
and re-open them by April 15, 2012.
In remarks during the public
meeting after the decisions were issued, Chairman of the Board, Wally Butts,
said that if the roads are not opened by that date, the County will take
action to re-open them.
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