Officials not giving up road claims

Commissioners resist federal RS 2477 intervention


U.S. Rep. Mark Udall didn't find support Friday among county commissioners throughout the state for his proposed bill granting Congress the power to resolve disagreements stemming from Revised Statute 2477.

Udall, a Democrat representing Colorado's 2nd Congressional District, found it will be a tough battle if Western Slope county commissioners are to relinquish control of their right-of-way claims on public lands.

The claims are based on a Civil War-era law that permits public transportation on constructed highways over public lands. The purpose of Udall's resolution, which he describes as a "draft," is to establish a deadline for RS 2477 claims and to provide a process for consideration and resolution of such claims.

To make an RS 2477 claim, the burden of proof would be placed on the claimant, and the claimant would have provide evidence that the claimed route is a highway and that it was constructed using tools or expenditures of highway construction. Congress then would decide if the claim is valid.

But those proposals came under fire from commissioners attending a Colorado Counties Inc. (CCI) meeting in Denver and others participating in the meeting via phone.

Moffat County Commissioner Les Hampton, participating through a conference call, took issue with Udall's proposal to establish a top-down approach to resolving RS 2477 claims. Citing old case law, Hampton said the federal government retained no rights on RS 2477 claims, because the law deeded the roads to counties.

"How can Congress settle an issue they have no ownership in?" Hampton asked.

Udall did not answer Hampton's question, saying he wasn't a lawyer. Doug Stone, chairman of CCI's RS 2477 subcommittee, opposed Udall's push to develop a uniform RS 2477 policy for all states.

"The committee agreed we need different rules of the road for different states," he said.

Udall congratulated Moffat County for being on the "cutting edge" of the RS 2477 debate. Moffat County was the first Colorado county to draft an RS 2477 resolution, which claimed more than 2,000 routes within the county's borders as public rights of way. But other counties, such as San Juan and La Plata, have identified routes they hope to claim under RS 2477 and are only waiting for guidelines to be established on which they can proceed.

Udall's definition of construction stands in opposition to Moffat County's interpretation of the term, stating bulldozers, road graders or modern road-building equipment must be used to construct a highway.

Following the lead of a resolution drafted by Eureka County, Nev., in 1994, the Moffat County Board of Commissioners has taken an 1866 view of construction, saying any route created through use has been constructed. That means hiking, driving cattle, or running a wagon across land regularly can constitute construction.

Arguments over the definition of a highway have centered on whether a four-wheel vehicle must be able to traverse a route for it to be a highway. Moffat County's claims, including footpaths and horse trails, don't fit that definition.

Central to Udall's resolution is the issue of abandonment. Udall proposes that an RS 2477 route has been abandoned if it has not continuously been used by the public, if the claimant has failed to perform maintenance on it, or if the claimant does not use the route for highway traffic.

Hampton said the first issue did not comply with Colorado law. State statute sets specific standards for abandoning roads that allows for the public to comment before a county abandons a road.

Requiring maintenance of a road claim would contradict many counties' intentions with their claims. Moffat County intends to preserve claimed roads in their historic status, Hampton said. Horse trails would remain horse trails and would not become four-lane highways. The last condition for abandonment eliminates RS 2477 claims of livestock trails and other routes on which four-wheel vehicles cannot travel.

Udall had hoped to get support from the commissioners, then take his resolution to Republican U.S. Rep. Scott McInnis, who represents the Western Slope, for bipartisan support.

The Colorado Senate passed a resolution of its own on Wednesday requesting Congress to settle RS 2477 issues. CCI officially opposed that resolution.

Rob Gebhart can be reached at 824-7031 or by e-mail at

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