U.S. DEPARTMENT OF THE INTERIORBUREAU OF LAND MANAGEMENT
EMS TRANSMISSION 05/31/2006
Instruction Memorandum No. 2006-159
To: All Washington Office and Field Office Officials
Subject: Non-Binding Determinations of R.S. 2477 Right-of-Way Claims
Program Area: Lands and Realty
Purpose: The Instruction Memorandum (IM) amplifies the Secretary’s Memorandum to Assistant Secretaries dated March 22, 2006, regarding how the Department will carry out its obligations following the Tenth Circuit Court of Appeals’ decision in Southern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735 (10th Cir. 2005) (hereinafter SUWA v. BLM) (Attachment 1). The Secretary’s memorandum directed “affected Interior agencies to issue, as necessary, revised instructions or guidance consistent with the SUWA v. BLM decision and this memorandum.” (Memorandum at 1.) (Emphasis added.) This IM outlines the Bureau of Land Management’s (BLM) process for making informal, non-binding validity determinations (NBD) regarding the validity of a claimed Revised Statute (R.S.) 2477 right-of-way.
Summary of Guidance: As the Secretary’s Memorandum and SUWA v. BLM make clear, the BLM does not have the authority to make binding determinations on the validity of R.S. 2477 right-of-way claims. The BLM may, however, make informal, non-binding determinations for its own land use planning and management purposes. An NBD is required before completing consultation with states or counties on any proposed improvements to a claimed R.S. 2477 right-of-way. It may also be appropriate to complete an NBD before taking action to close or otherwise restrict the use of a claimed R.S. 2477 right-of-way.
As explained in the Secretary’s Memorandum, the decision in SUWA v. BLM requires that such determinations must be based in the particular laws of each state in which a claimed right-of-way is situated. In terms of a process, however, the bureaus can develop procedures for making NBDs. In recognition that NBDs do not create binding legal rights, the Secretary’s Memorandum directed that such a process be “as simple and straightforward as possible.” Attachment 2 of this IM outlines procedures for making NBDs on R.S. 2477 right-of-way claims for planning and management purposes.
Please note that BLM does not have authority over private lands and should not make any determination for any portion of a road that is on private land or land managed by another governmental unit. As described more fully in Step 1 of the NBD Procedure (Attachment 2), BLM should also ensure that owners and managers of such lands are given individualized notice and opportunity to comment before taking any action on claims for rights-of-way that would abut or the extension of which would cross their property.
The State and Field Office managers should keep in mind the Secretary’s emphasis that even if roads or rights-of-way exist, the Department still must meet its obligation to reasonably regulate the underlying and surrounding Federal lands.
Background and Direction:
1. The Secretary’s Memorandum
On March 22, 2006, the Secretary issued a Memorandum (Secretary’s Memorandum) revoking the Department of the Interior’s (Department’s) previous Interim Departmental Policy on Revised Statute 2477 Grant of Right-of-Way for Public Highways in response to the Tenth Circuit Court of Appeals’ decision in Southern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735 (10th Cir. 2005). Although the SUWA v. BLM Decision was made by the 10th Circuit Court of Appeals, this guidance is applicable nationwide.
The Secretary’s Memorandum lays out revised guidelines for administering R.S. 2477 rights-of-way and directs affected bureaus to adopt instructions for implementing the Secretary’s Memorandum. It applies to all BLM offices. Earlier instructions provided as guidance in processing various R.S. 2477 actions, including IM 2005-185 and the Deputy Director’s Memorandum provided to the Utah State Office dated June 25, 2003 should not be followed, but these documents are a valuable source of background information and should be retained for that purpose.
2. Non-binding Determinations
The State or Field Offices may make NBDs for claimed R.S. 2477 rights-of-way for its own land use planning and management purposes. An NBD finding that the right-of-way exists must be made prior to completing the required consultation process with states or counties over proposed improvements – i.e., any work beyond routine maintenance – to claimed R.S. 2477 rights-of-way. It may also be appropriate for an NBD to be made prior to closing or otherwise restricting the use of a claimed R.S. 2477 right-of-way.
In making an NBD, the State and Field Offices should apply the standards expressed in the Secretary’s Memorandum, following the process outlined below. To do so, the office will have to apply long established principles of state law governing the creation of rights-of-way in effect at the time the right-of-way is claimed to have been established. Those principles may vary from state to state, so the office making R.S. 2477 NBDs should consult carefully with regional and field solicitors’ offices to identify the appropriate law to apply. The State or Field Offices will not make NBDs on routes that are on private lands or on lands administered by other governmental agencies. However, where appropriate, the office may coordinate review of R.S. 2477 assertions with adjacent land managers. In these instances, every effort should be made to reach a consensus decision with other agencies; however, the office shall still make independent administrative NBDs for the portions of the route on public lands.
Because NBDs are useful only for planning purposes and do not create any binding legal rights, the evidence reviewed need not be as extensive as is required for more formal actions. If the NBD is undertaken in response to a proposal by a county or other entity, the claimant has the burden of bringing forth appropriate evidence that the right-of-way may exist. The State or Field Office should work to make relevant information, such as historical maps and photographs, available for counties and the public to review and use as evidence for an NBD.
Once the State or Field Office has gathered the information from these sources, and has received information from the public and any other affected landowners or land managers, it should decide whether a preponderance of the evidence exists to support the claimed right-of-way use.
When the State or Field Office has decided to make an NBD, it must follow the steps outlined in Attachment 2. Where states have pending assertions (claims) made under previous policies and/or under state laws, such claims must be updated to comply with the Secretary’s policy of March 22, 2006.
Policy/Action: The State and Field Offices are directed to follow the guidance contained in Attachment 2 in processing NBDs for the purpose of acknowledging valid R.S. 2477 roads. For acknowledged R.S. 2477 rights-of-way, a case file must be established, a serial number assigned, and the official records noted (Master Title Plats). For state, county, or municipal R.S. 2477 rights-of-way, a single case file and serial number may be established for the individual entity regardless of the number of separate R.S. 2477 rights-of-way held by that entity. Multiple-rights of-way under a single serial number are entered with a letter suffix. Note that other non-road facilities, such as powerlines, fiberoptic lines, etc., must be authorized under a separate FLPMA Title V or section 28 Mineral Leasing Act (30 U.S.C. 185) right-of-way grant if the servient estate is public land administered by the BLM.
To the extent terms and standards used herein are not defined in the Secretary’s Memorandum, Offices should consult with the appropriate regional or field solicitor’s office. States are encouraged to develop supplemental guidance for making NBDs based on individual state laws for states under their jurisdiction. Close coordination with the appropriate solicitor’s office will be required in the preparation of such guidance.
Timeframe: This IM is effective upon receipt.
Budget Impact: This IM provides guidance for processing NBDs for R.S. 2477 rights-of-way. The cost for processing NBDs is not subject to reimbursement of the BLM’s expenses under existing cost recovery regulations pertaining to rights-of-way. Offices are encouraged to seek reimbursement of administrative costs for making NBDs by means of contributed funds. Therefore, the impact on the budget may be unnoticeable to significant depending upon how many NBDs are requested and the availability of funding sources. The State or Field Office will have to bear these expenses, unless the applicant agrees to reimburse us for our costs.
Manual/Handbook Sections Affected: The Manual/Handbook 2800 series should be used for processing FLPMA right-of-way grants when applicable. The regulations in 43 CFR 1864 should be followed, if a disclaimer of interest for acceptance of a potential valid R.S. 2477 road is requested.
Coordination: This guidance was coordinated within the Solicitor’s Office, BLM’s Washington Office, and with State Office technical staffs and managers involved in the R.S. 2477 program.
Contact: If you have any questions or concerns regarding this policy, please contact Jeff Holdren, Lands and Realty Group (WO350) at 202-452-7779 or via email at firstname.lastname@example.org.