September 21, 2011
Hoffman on Right-of-Way Claims under Revised Statute 2477
Hillary M. Hoffman (Vermont) has posted Signs, Signs, Everywhere Signs: The Wilderness Society v. Kane County Leaves Everyone Confused About Navigating a Right-of-Way Claim Under Revised Statute 2477. The abstract:
The Tenth Circuit’s recent decision in The Wilderness Society v. Kane County has changed the landscape of litigation arising out of Revised Statute 2477, a provision of the Mining Act of 1886 repealed by the Federal Land Policy and Management Act of 1976. Prior to this decision, the presumption was that the United States owned all federal public lands unless an adverse claimant proved otherwise. Moreover, any adverse claimant was required to bring an action under the Quiet Title Act to divest the federal government of title to its property. This decision turns both of those presumptions inside-out, provided that states and counties assert rights under R.S. 2477, regardless of whether they can be proven. This Article explores the history of R.S. 2477, its repeal by the Federal Land Policy and Management Act, and the Tenth Circuit’s historical treatment of R.S. 2477 claims. It also discusses why the Tenth Circuit’s holding in the Kane County case misconstrues the nature of an R.S. 2477 dispute, overlooks long-recognized presumptions about federal ownership of federal land, and ignores the myriad of legal issues involved in an R.S. 2477 dispute. Lastly, it makes specific suggestions about how the Tenth Circuit should address litigation surrounding the growing number of R.S. 2477 battles in years to come, to enable litigants and lower courts to more easily navigate this complex area of law.
An important issue, and on a tangent, the title reminds me how I keep trying in Property I to illustrate the right to exclude with clips from the Five Man Electrical Band, but kids today don't seem to dig it.
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