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RS 2477 reform is needed to protect private property

By Mark Boslough
web posted February 23, 2004

A lot has been said about the 1866 law known as RS 2477. Some people have even suggested that RS 2477 protects access to inholders who are surrounded by federal land. While this may be true in some circumstances, it is a double-edged sword -- a very sharp and dangerous one.

Landowners who invoke RS 2477 could end up deeply regretting it, because its use could result in creating a public road or off-road recreation area on their own property. And since there is a vast array of other laws that can be used to create private easements for access (as opposed to public highways), inholders do not need to put their own property at risk.

For example, private prescriptive easements can be created along roads that have been used for access over a period of time (the period depends on state law). Inholders can always invoke an easement by necessity, which makes use of a condemnation process. Different states have various other laws, but the point is that inholders do not have to risk having their access road (including the portion that crosses their own property) recorded as a public highway, as it would be if RS 2477 were invoked.

Use of RS 2477 is not just a theoretical threat. My family found out first-hand that the threat is very real. Off-road organizations are actively promoting it as a means of creating recreation areas on private land.

Off-road clubs have a two-pronged strategy. First, they try to get county governments to seize rights-of-way across private land. If that doesn't work they are willing to form vigilante groups that tear down fences, gates, barriers, and signs along routes they consider public under RS 2477.

There is a major legal problem with both of these approaches. Foremost, who has the burden of proof? Should ranchers be forced to defend their land by proving that their roads were built after their property was homesteaded? Can a county government declare that a road across private property pre-existed the patent and seize it without proof, or is documentation required? Regardless of one's position on RS 2477 itself, that burden on owners would set a dangerous precedent that would certainly lead to abuse and erosion of private property rights that we hold dear.

The off-road vigilante approach also has problems. If a private group declares a right-of-way across private property and forms a shovel brigade to keep it open without fear of prosecution, then trespassing laws become ineffective. Any ATV rider, motorcyclist, or renegade hunter that is trespassing on private property for any reason can simply declare that they are on an RS 2477 route. Again, private property rights are eroded. Moreover, acceptance of vigilanteism reflects a loss of faith in the rule of law that is a fundamental pillar of our republic.

Nevertheless, off-road clubs have used the vigilante method against my own family's property. My wife is a Colorado native with deep roots in the same area where I grew up. Since 1960, her family has owned a ranch crossed by Barking Dog Trail In recent years, this footpath and an adjacent creek were taken over by recreationists who drove specially modified rigs that are designed to crawl over the giant boulders that had formerly kept motorized vehicles out.. By the mid 1990s a spider web of destruction was spreading like a cancer across the foothills and meadows of the ranch and surrounding land

In the late 1990s I bought more land and doubled the size of my wife's ranch. My intention was to restore the stream and re-create the healthy wetlands, improving wildlife habitat and reducing fire hazard by thinning the trees. I hired a forester at great expense. I went through the Colorado State Forest Service Approval process. I hand-planted hundreds of seedling trees; some to prevent erosion and others to harvest as Christmas trees to provide environmentally friendly income from our little forest agriculture operation when we retire.

But my project was sabotaged by a vigilante group calling itself About Public Lands (APL), consisting of members of the Mile-Hi Jeep Club and Trailridge Runners 4WD clubs, who claimed that Barking Dog Trail was open for public motorized recreation under RS 2477.

Like the Earth Liberation Front (ELF), which has claimed responsibility for similar acts of vandalism, APL's activities have been reported by Stop Eco-Violence! SEV is an organization that monitors criminal acts of willful destruction and personal harassment that, according to its web site, have "inflicted significant, inexcusable harm on private citizens, law-abiding businesses, institutions and local communities."

National off-road organizations like the Blue Ribbon Coalition and Tread Lightly have so far refused to condemn the vigilante activities of emerging groups like APL. In fact, national groups like Off-Road.com are taking strong anti-landowner positions.

In an attempt to justify vigilante attacks against private property, Off-road.com Land Use Editor Brad Ullrich wrote an article last year that made many statements about my family's land that are demonstrably false. Ullrich (who has never been to Barking Dog Trail and is unfamiliar with the local geography and history) seems to think that the burden of proof is on landowners, not on the off-roaders who want to recreate on private property.

Ullrich closed his article with this direct challenge to me personally: "I am wondering on what you are basing the closing of the Barking Dog Road (sic)." Here is my answer: "… nor shall private property be taken for public use, without just compensation." The Fifth Amendment of our Constitution trumps RS 2477.

Mark Udall's RS 2477 reform bill deserves a second look by landowners who are concerned about preserving their property rights. In my view, his proposed legislation deserves broad bi-partisan support.

Fore more information, visit the author's web site: http://home.comcast.net/~balarat/ranch.html

What you can do

If you are a landowner who has had problems with off-road trespassers, please consider joining Property Owners for Sensible Roads Policy (POSRP). Contact the POSRP president:

AJ Chamberlin
2425 Canyon Blvd., #110
Boulder, CO 80302
Phone: (720)244-7353
e-mail: aj@boulderco.com

To find out about another effort to organize inholders and others who may be affected by new RS2477 rules, contact:

Diana Rhoades
Phone: (520) 623-0908
e-mail: arizonadiana@earthlink.net

This is Mark Boslough's first contribution to Enter Stage Right. (c) 2004 Mark Boslough.

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