Recognition of R.S. 2477 Rights-of-Way under the Department of the Interior's FLPMA Disclaimer Rules

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

No. B-300912

Comptroller General of the United States

February 6, 2004

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

The Honorable Jeff Bingaman Ranking Minority Member Committee on Energy and Natural Resources United States Senate

Dear Senator Bingaman:

This responds to your request for our opinion on actions by the Department of the Interior (the Department or DOI) 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 (FLPMA) disclaimer-of-interest process which the Department has incorporated into a Memorandum of Understanding with the State of Utah (Utah MOU).

Specifically, this opinion addresses: (1) Whether either the Department's January 2003 amendments to its disclaimer-of-interest regulations implementing FLPMA Sec 315, 43 U.S.C. Sec. 1745 (2003 Disclaimer Rule) ^[1] or the Utah MOU entered into in April 2003^[2] is a "final rule or regulation... pertaining to the recognition, management, or validity of a right-of-way pursuant to [R.S. 2477]" prohibited from taking effect by section 108 of the Department of the Interior and Related Agencies Appropriations Act, 1997 (Section 108); and, independent of this Section 108 prohibition,

(2) Whether the Department may use the authority of FLPMA Sec. 315 to disclaim interests in R.S. 2477 rights-of-way.

Your request raises a number of legal issues as to which no court has ruled to date and as to which there are a range of colorable arguments. As summarized below and detailed in the enclosed opinion, we conclude that the 2003 Utah MOU, but not the 2003 Disclaimer Rule, is a final rule or regulation prohibited from taking effect by Section 108. We further conclude, based on applicable rules of statutory construction and administrative law, that on balance, FLPMA Sec. 315 otherwise authorizes the Department to disclaim United States' interests in R.S. 2477 rights-of-way.

In preparing this opinion, we requested the legal views of the Department on the issues raised by your request. We obtained these views through the Department's written responses to our inquiries, an in-person conference, and a number of telephone interviews with the Department's legal staff. We also reviewed the Department's responses to separate inquiries by you and by Senator Lieberman on these matters, ^[3] as well as the Department's statements in various regulatory and policy documents and reports.

BACKGROUND

In order to promote settlement of the American West in the 1800s and provide access to mining deposits located under federal lands, Congress granted rights-of-way across public lands for the construction of highways by a provision of the Mining Law of 1866, now known as R.S. 2477. Congress repealed R.S. 2477 in 1976 as part of its enactment of FLPMA, along with the repeal of other federal statutory rights-of-way, but it expressly preserved R.S. 2477 rights-of-way that already had been established. In its entirety, R.S. 2477 provided that:

"the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted."^[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 Department's existing regulations, promulgated in 1984, implementing FLPMA Sec. 315. FLPMA Sec. 315 authorizes the Department to issue recordable disclaimers of U.S. interests in lands in certain circumstances. As pertinent here, Sec. 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 Sec. 315(a), 43 U.S.C. Sec. 1745(a). DOI's FLPMA Sec. 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 Sec. 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 Department's 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 Sec. 315 disclaimer process. See Utah MOU at 2-3. The State of Utah or any Utah county may request initiation of this acknowledgment/disclaimer process for "eligible roads"; such roads must meet specified criteria including "meet[ing] the legal requirements of a right-of-way granted under R.S. 2477." Id. at 3. On January 14, 2004, the Governor of Utah submitted the first application under the Utah MOU for acknowledgment and a recordable disclaimer of interest of specific R.S. 2477 rights-of-way.

SUMMARY OF CONCLUSIONS

As detailed in the enclosed opinion, we conclude that the 2003 Utah MOU, but not the 2003 Disclaimer Rule, is a final rule or regulation prohibited from taking effect by Section 108. We further conclude that FLPMA Sec. 315 otherwise authorizes the Department to disclaim United States' interests in R.S. 2477 rights-of-way.

With respect to the first issue, although the 2003 Disclaimer Rule itself is clearly a "final rule or regulation, " we do not believe it is a final rule or regulation "pertaining to the recognition, management, or validity" of R.S. 2477 rights-of-way subject to Section 108. Because the terms of the 2003 Disclaimer Rule (as well as the original 1984 regulations) are silent on R.S. 2477 rights-of-way, we do not believe the Rule pertains to R.S 2477 rights-of-way as contemplated by Section 108. The preamble to the 2003 Disclaimer Rule does discuss recognition and validity of R.S. 2477 rights-of-way, but the preamble does not qualify as a substantive rule under the Administrative Procedure Act (APA), which we believe was Congress' intention in using the term "final rule or regulation" in Section 108. Moreover, because the 2003 Disclaimer Rule preamble does not prescribe procedural or substantive standards by which R.S. 2477 rights-of-way will be evaluated, it does not "pertain" to R.S. 2477 rights-of-way within the meaning of Section 108.

On the other hand, we conclude that the Utah MOU is a final rule or regulation subject to Section 108's prohibition. There is little question that the MOU pertains to the "recognition, management, or validity" of R.S. 2477 rights-of-way; the purpose of the MOU was to resolve years of conflict over these precise issues. We also believe the MOU is an APA substantive rule and thus a "final rule or regulation" under Section 108. It both satisfies the APA's definition of "rule"-"an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy, " see 5 U.S.C. Sec. 551(4)-and meets the key test by which courts have defined substantive rules-it has a binding effect on the agency and other parti...