Relationship of Disclaimer Rule to RS 2477

The Disclaimer Rule
A final rule published by the Bureau of Land Management (BLM) on January 6, 2003 threatens the integrity of our public lands system, including our National Parks, National Forests, National Wildlife Refuges, designated Wilderness, and Wilderness Study Areas. Under the Conveyances, Disclaimers and Corrections rule [Federal Register, Vol 68, No. 3, RIN 1004-AD 50], the BLM has the authority to issue "disclaimers of interest" to states, counties, and individuals for areas within public lands.

When the United States "disclaims" an interest in land, it relinquishes all ownership interests in the property, investing them in the claimant. This authority was given to the Secretary of the Interior in the Act that created the BLM and was intended to clear "cloud[s] on the title" of lands owned by individuals when the Secretary determines that the national interest in the lands had "terminated by operation of law or (is) otherwise invalid."

The proposed rule would eliminate the need for claimants to possess a written title to the lands in question and removes the statute of limitation that would bar claims presented more that twelve years after a claimant knew or should have known of the government’s adverse interest in the property. By dropping these two requirements, the new rule, among other things, opens the door for states, counties, and even individuals, to file petitions for disclaimers of interest with the BLM for rights-of-way under the repealed RS 2477 law.

Revised Statute 2477
Revised Statute 2477, or RS 2477, is a provision in an 1866 mining law that was intended to facilitate the settlement of the West. To do this, the statute granted rights-of-ways for "the construction of highways across public lands not otherwise reserved for public uses."

The obsolete RS 2477 statute was repealed when Congress enacted the Federal Land Policy and Management Act (FLPMA) in 1976. FLPMA laid out an updated process for determining reasonable access to public lands, at the same time ensuring that existing, substantiated RS 2477 claims were not affected.

By allowing recordable disclaimers to be issued where applicants assert title that may have been created under now expired laws, the new rule essentially directs BLM to review brand new RS 2477 claims -- above and beyond the claims that were recognized under FLPMA. These rights-of-way claims could number in the thousands, due to other regulatory changes including:

Elimination of the existing 12 year statute of limitations on states claiming title to or interests in public lands.
Any entity can claim title, not just current "owners of record," as required under previous regulations.
BLM would not have to require applicants to produce documents showing evidence of title to the lands in question.

It is important to reiterate that the final disclaimer rule will inevitably lead to thousands of new RS 2477 claims; it does not address the standards DOI will employ to assess the validity of these rights-of-way claims.

How the U.S. Department of the Interior (DOI) assesses existing RS 2477 rights-of-way claims has been the subject of controversy and debate over the last several decades, as the original statutory language does little to guide federal agencies in this respect. DOI does not currently have a policy for determining the validity of RS 2477 rights-of-way claims. Whatever criteria it settles on is sure to have significant impact on the integrity of our national lands.