Recognition of R.S. 2477 Rights-of-Way under the Department of the Interior’s FLPMA Disclaimer Rules and Its Memorandum of Understanding with the State of Utah, B-300912, February 6, 2004

B-300912 Feb 06, 2004 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights This legal opinion responds to a request concerning actions by the Dept. of the Interior in recognizing rights-of-way across public lands granted by Revised Statute 2477 (R.S. 2477), through use of a Federal Land Policy and Management Act sec. 315 (FLPMA 315) disclaimer-of-interest process, which DOI incorporated into an April 2003 Memorandum of Understanding with the State of Utah (Utah MOU). We conclude that the Utah MOU, but not Jan. 2003 revisions to DOI's FLPMA sec. 315 disclaimer regulations, is a "final rule or regulation" prohibited from taking effect by Section 108 of the FY 1997 Dept. of the Interior Appropriations Act. We further conclude, based on applicable rules of statutory construction and administrative law, that on balance, FLPMA sec. 315 otherwise authorizes DOI to disclaim the United States' interests in R.S. 2477 rights-of-way. View Decision Recognition of R.S. 2477 Rights-of-Way under the Department of the Interior's FLPMA Disclaimer Rules and Its Memorandum of Understanding with the State of Utah, B-300912, February 6, 2004 [1] [2] [3] BACKGROUND [4] R.S. 2477 was self-executing and did not require government approval or public recording of title. As a result, uncertainty arose regarding whether particular rights-of-way had in fact been established. This uncertainty, which continues today, has implications for a wide range of entities, including the Department and other federal agencies, state and local governments who assert title to R.S. 2477 rights-of-way, and those who favor or oppose continued use of these rights-of-way. In an effort to resolve questions regarding the existence of particular R.S. 2477 rights-of-way, the Department has issued a series of policy and other documents over the years discussing how it would administratively recognize or validate specific rights-of-way. By 1993, according to the Department, the agency and the courts together had recognized about 1,453 R.S. 2477 rights-of-way across Bureau of Land Management (BLM) lands, with about 5,600 claims remaining, primarily in Utah, and an unknown number of unasserted potential claims.[5] After the Department issued a proposed rule in 1994 to establish a formal process for evaluating R.S. 2477 claims, Congress responded by enacting temporary moratoria and, in 1996, a permanent prohibition on certain R.S. 2477-related activity. The permanent prohibition, set forth in Section 108, states that: No final rule or regulation of any agency of the Federal Government pertaining to the recognition, management, or validity of a right-of-way pursuant to [R.S. 2477] shall take effect unless expressly authorized by an Act of Congress subsequent to the date of enactment of this Act.[6] Mindful of this Section 108 restriction, DOI took two major actions in 2003 relating to R.S. 2477 rights-of-way that have generated considerable attention in Congress and elsewhere and are the focus of your request.[7] First, the Department issued the 2003 Disclaimer Rule on January 6, 2003, amending the Departments existing regulations, promulgated in 1984, implementing FLPMA 315. FLPMA 315 authorizes the Department to issue recordable disclaimers of U.S. interests in lands in certain circumstances. As pertinent here, 315 provides that: After consulting with any affected Federal agency, the [Department] is authorized to issue a document of disclaimer of interest or interests in any lands in any form suitable for recordation, where the disclaimer will help remove a cloud on the title of such lands and where [the Department] determines [that] a record interest of the United States in lands has terminated by operation of law or is otherwise invalid . . .. FLPMA 315(a), 43 U.S.C. 1745(a). DOIs FLPMA 315 regulations establish a disclaimer application process, see 43 C.F.R. subpart 1864, and in the preamble to the 2003 Disclaimer Rule, DOI formally announced for the first time that it might use this process to validate R.S. 2477 rights-of-way, although it stated that FLPMA 315 has always provided such authority. The Department also stated in the January 2003 preamble that because the 2003 Disclaimer Rule did not contain specific standards for evaluating asserted R.S. 2477 rights-of-way, it did not pertain to their recognition, management, or validity and thus did not run afoul of Section 108. See 68 Fed. Reg. at 496-97. The Departments second major R.S. 2477-related action in 2003 was issuance of the Utah MOU on April 9, 2003. The Utah MOU states that DOI will implement a State and County Road Acknowledgment Process to acknowledge the existence of certain R.S. 2477 rights-of-way on [BLM] land within the State of Utah, and the process DOI will use to make these acknowledgments is the FLPMA 315 disclaimer process. See Utah MOU at 2-3.