Does Arizona law let state and county officials use, maintain, and protect access to old federal R.S. 2477 roads across federal land, even when the BLM tries to close them?

Plain-English summary

R.S. 2477 was a Reconstruction-era federal statute, part of the Mining Act of 1866, that granted "the right of way for the construction of highways over public lands, not reserved for public uses." That single sentence, codified at 43 U.S.C. § 932, was a standing federal offer of free public roadways across the public domain. It was repealed in 1976 by the Federal Land Policy and Management Act (FLPMA), but FLPMA's savings clause expressly preserved any R.S. 2477 right-of-way that had already vested. Existing rights-of-way were "frozen" as of 1976.

By the 2010s, the Bureau of Land Management was closing roads and trails on federal land in Arizona. The 2013 Lake Havasu Travel Management Plan, for example, proposed to close more than 150 miles of roads and limit access to another 100 miles, without first adjudicating which were valid R.S. 2477 routes. The Arizona Legislature responded in 2015 with A.R.S. § 37-931, formally reasserting Arizona's R.S. 2477 rights-of-way and disclaiming any prior implicit waiver.

Representative Mark Finchem asked the AG: does § 37-931 actually authorize state and local officials to use, access, maintain, and guarantee access to those rights-of-way? AG Mark Brnovich's answer was yes, with important qualifications.

State authority is broad but not exclusive. Where a valid R.S. 2477 right-of-way exists, Arizona officials may use it, maintain it, and protect public access to it. Federal agencies can exercise reasonable regulatory oversight (the federal government still owns the underlying land), but they cannot unreasonably interfere with the state's right of way.

Maintenance must be coordinated for significant work. Routine maintenance is fine, but converting a two-track jeep trail into a graded dirt road, or a graded road into a paved one, alters the burden on the federal land and may exceed the scope of the right of way (citing the Tenth Circuit's S. Utah Wilderness Alliance v. BLM, 425 F.3d 735 (2005)). Significant work should be coordinated with the federal land management agency.

Self-help is available against unreasonable closure. If a federal agency closes a valid R.S. 2477 right-of-way without good cause and without the procedures § 37-931(E) requires (court order or proper administrative process), state officials can seek an injunction in court and may take self-help measures that do not breach the peace. The opinion's example: "a county sheriff may cut a lock off of a gate barring access to a valid right-of-way that has been closed without good cause."

Emergencies are different. During genuine emergencies, the federal landowner can temporarily close a right of way. But pretextual or extended closures that completely frustrate use of the easement are not protected.

The opinion explicitly did not address what counts as a "valid" R.S. 2477 right-of-way. That question is governed by federal law, with state common-law principles "borrowed" to determine how the public can accept a right-of-way. A 1909 Arizona Territorial Court case, Tucson Consolidated Copper v. Reese, had restricted R.S. 2477 routes to those meeting Arizona's statutory definition of "public highway," but the AG noted that Reese was implicitly overruled by Pleak v. Entrada Property Owners' Ass'n, 207 Ariz. 418 (2004), and was inconsistent with the broader federal interpretation.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

R.S. 2477 litigation has continued to develop in the Tenth and Ninth Circuits since this opinion. Anyone relying on it for a specific road or trail should check current law.

How the AG worked through the questions

The opinion broke the broader question into three sub-questions tracked from the statutory text.

Use and access. Yes, where a valid R.S. 2477 right-of-way exists, officials may use and access it. This is a straightforward easement principle: the holder of an easement may go on the easement.

Maintenance. Yes, but with structural caveats. The federal land underlying an R.S. 2477 right-of-way is the "servient tenement," and its owner has a "right to reasonable use" that can coexist with the easement. McFarland v. Norton, 425 F.3d 724, 727 (9th Cir. 2005). Easement and underlying-ownership rights are "mutually limiting." The AG quoted United States v. Garfield County, 122 F. Supp. 2d 1201, 1263 (D. Utah 2000), describing the federal-state relationship as "correlative rather than plenary, absolute, or exclusive," and S. Utah Wilderness Alliance, 425 F.3d at 745, noting that "[t]he law expects [both parties] to speak to each other about work to be done on lands to which they both have important correlative rights."

For routine maintenance ("preserving the status quo"), state officials can act. For changes that alter the use or burden the underlying land, conversion of a jeep trail to a graded road, conversion of a graded road to pavement, the right-of-way holder needs to coordinate with the federal agency. S. Utah Wilderness All., 425 F.3d at 747 ("To convert a two-track jeep trail into a graded dirt road, or a graded road into a paved one, alters the use, affects the servient estate, and may go beyond the scope of the right of way.").

Guaranteed access. Yes, in most cases. The owner of the servient estate (the federal government) may temporarily close access during real emergencies, but the AG was clear that emergency authority does not legitimize pretextual closures or extended closures that frustrate the easement. Where a federal agency closes a valid R.S. 2477 right-of-way without good cause, state officials may seek injunctive relief in court and may also take "self-help remedies as may be available and would not breach the peace," citing 25 Am.Jur.2d Easements and Licenses § 92 (1966), and the Arizona case State ex rel. Herman v. Cardon, 112 Ariz. 548, 551 (1976).

The opinion's most quotable line is the example: "a county sheriff may cut a lock off of a gate barring access to a valid right-of-way that has been closed without good cause." That is self-help against an unauthorized closure, available because removing an unlawful obstruction does not breach the peace.

The opinion's footnote did important work: it confined the analysis to valid R.S. 2477 rights-of-way and explicitly punted on what counts as valid. It also rehabilitated R.S. 2477 doctrine in Arizona by reading the 1909 Reese decision as implicitly overruled by the 2004 Pleak decision, which reaffirmed the doctrine of common-law dedication of public roadways and rejected the proposition that a road must meet a statutory definition of "public highway" to be public.

Common questions

Q: What is R.S. 2477?
A: It was section 8 of the Mining Act of 1866, codified as Revised Statute 2477 and later as 43 U.S.C. § 932. It granted the right-of-way for "the construction of highways over public lands, not reserved for public uses." It was a standing federal offer that anyone could "accept" by building or using a public road across federal land. It was repealed in 1976, but FLPMA's savings clause preserved any rights-of-way that had vested before the repeal.

Q: How does a road become a valid R.S. 2477 right-of-way?
A: Federal law governs the question, but federal courts borrow state common-law principles on how the public "accepts" the right-of-way. Generally, the public must have used a route as a public road before 1976. Arizona's traditional doctrine of common-law dedication applies. The AG opinion did not lay out detailed elements; it deferred to Tenth Circuit case law (S. Utah Wilderness Alliance, San Juan County v. United States) for the analytic framework.

Q: Can I, as a private citizen, drive on an R.S. 2477 right-of-way?
A: Section 37-931(E)(3) says "[t]he public has the right to use a Revised Statute 2477 right-of-way across public lands to access public lands." The AG opinion confirmed that this codification accurately reflects R.S. 2477 doctrine. The right-of-way is a public road for public use.

Q: What if private land is surrounded by federal land and an R.S. 2477 road is the only access?
A: Section 37-931(E)(4) gives the landowner the right to use the R.S. 2477 right-of-way to reach the private land. The AG did not analyze this provision in depth, but it is consistent with general easement-by-necessity principles.

Q: Can the BLM close an R.S. 2477 road by issuing a travel management plan?
A: Not on its own, according to this opinion. Section 37-931(E)(5) says "[a] Revised Statute 2477 right-of-way across public lands shall be closed only by order of a court of competent jurisdiction or the proper completion of an administrative process established for the abandonment, maintenance, construction or vacation of a public right-of-way otherwise allowed by law." The AG read this as a substantive limit on federal closures. A federal travel management plan that closes a valid R.S. 2477 right-of-way without going through a closure process otherwise authorized by law would be subject to challenge.

Q: What about emergency closures, like during wildfires?
A: The opinion acknowledged that emergencies justify temporary closure: "Under limited circumstances (e.g., emergencies), the owner of the servient estate may temporarily bar an easement owner from accessing a right-of-way." But emergency authority does not extend to "closures in the absence of an emergency or closures of such extended duration that the use of the easement is completely frustrated."

Q: What is the limit on what state officials can do without consulting the federal land manager?
A: Routine maintenance preserving the status quo is fine. Changes that significantly alter the route, paving a dirt road, widening a trail substantially, can exceed the scope of the right-of-way and should be coordinated with the federal agency. The AG cited S. Utah Wilderness Alliance for the proposition that significant changes "alter the use, affect the servient estate, and may go beyond the scope of the right of way."

Q: Did this opinion say a sheriff could cut a BLM lock?
A: Yes, in the specific situation of an unreasonable closure of a valid right-of-way: "a county sheriff may cut a lock off of a gate barring access to a valid right-of-way that has been closed without good cause." The "valid" and "without good cause" qualifications are doing all the work, the opinion is not authorizing self-help against any federal closure, only against unauthorized closures of established rights-of-way.

Background and statutory framework

R.S. 2477 was repealed in 1976, but FLPMA expressly preserved existing rights-of-way: 43 U.S.C. § 1769(a). The Ninth Circuit in Lyon v. Gila River Indian Community, 626 F.3d 1059, 1076 (9th Cir. 2010), summarized the effect: FLPMA "had the effect of 'freezing' R.S. 2477 rights as they were in 1976."

In the years since, federal land managers (primarily BLM) have closed many roads and trails across federal land. Arizona was one of several Western states where this triggered legislative pushback. The 2013 Lake Havasu Travel Management Plan, proposing to close 150-plus miles of roads and limit another 100-plus miles without first adjudicating R.S. 2477 status, was a flashpoint.

The Arizona Legislature responded with 2015 Ariz. Sess. Laws ch. 277, codified at A.R.S. § 37-931. The statute does several things:

• Subsection (A) reasserts and claims state and political-subdivision rights-of-way under R.S. 2477.
• Subsection (B) disclaims any prior implicit waiver, voids any unauthorized waiver, and requires formal recorded action for any future waiver.
• Subsection (C) declares that failure to maintain does not affect right-of-way status.
• Subsection (D) declares that omission from any plat, description, or map does not waive a right-of-way.
• Subsection (E) addresses scope, maintenance, and use, including the rule that closures require a court order or proper administrative process.

Federal courts apply federal law to interpret R.S. 2477, with state common law "borrowed" for acceptance questions. S. Utah Wilderness Alliance, 425 F.3d at 762; San Juan County v. United States, 754 F.3d 787, 798 (10th Cir. 2014). State law that "thwarts the intent of R.S. 2477" is not considered.

Citations and references

Statutes:

• A.R.S. § 37-931 (Arizona's R.S. 2477 reassertion statute)
• 43 U.S.C. § 932 (original R.S. 2477, repealed 1976)
• 43 U.S.C. § 1769(a) (FLPMA savings clause)
• Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, § 706(a)
• 2015 Ariz. Sess. Laws ch. 277 (enacting § 37-931)

Federal cases:

• Lyon v. Gila River Indian Cmty., 626 F.3d 1059 (9th Cir. 2010) (FLPMA freezing of R.S. 2477 rights)
• S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735 (10th Cir. 2005) (scope of R.S. 2477 rights and federal-state coordination)
• Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988) (R.S. 2477 framework)
• San Juan County v. United States, 754 F.3d 787 (10th Cir. 2014) (state law borrowing for acceptance)
• McFarland v. Norton, 425 F.3d 724 (9th Cir. 2005) (federal-state easement limits)
• United States v. Garfield Cnty., 122 F. Supp. 2d 1201 (D. Utah 2000) (correlative rights)
• United States v. Vogler, 859 F.2d 638 (9th Cir. 1998)

Arizona cases:

• State ex rel. Herman v. Cardon, 112 Ariz. 548 (1976) (self-help to abate interference without breach of peace)
• Pleak v. Entrada Prop. Owners' Ass'n, 207 Ariz. 418 (2004) (common-law dedication of public roadways still valid)
• Tucson Consol. Copper v. Reese, 12 Ariz. 226 (1909) (since rejected as inconsistent with federal R.S. 2477 doctrine)
• Thorpe v. Clanton, 10 Ariz. 94 (1906)

Source

• Landing page: https://www.azag.gov/opinions/i17-005-r15-014
• Original PDF: https://www.azag.gov/sites/default/files/2025-06/I17-005.pdf

Original opinion text

To:

Representative Mark Finchem

Arizona House of Representatives

Questions Presented

Does Arizona Revised Statutes § 37-931 authorize officers and employees of the State of Arizona and its political subdivisions to use, access, maintain, and guarantee access to valid Revised Statute (R.S.) 2477 rights-of-way across federal lands?

If so, what is the extent of that authority?

Summary Answer

Yes. The newly-enacted Arizona Revised Statutes § 37-931 authorizes officers and employees of the State of Arizona and its political subdivisions to use, access, maintain and guarantee access to valid R.S. 2477 rights-of-way across federal lands.

Where a valid R.S. 2477 right-of-way exists, Arizona state and local officials have broad authority over those lands. While federal agencies may exercise regulatory oversight over rights-of-way that cross federal lands, no federal agency may unreasonably interfere with the right-of-way possessed by the State of Arizona.

Background

The Mining Act of 1866 provided a broad grant of rights-of-way over federal lands. This federal enactment, commonly referred to as Revised Statute (R.S. 2477), states that "the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes, ch. 262, § 8, 14 Stat. 251, 253 (1866) (codified at 43 U.S.C. § 932). This standing offer of a free right-of-way over the public domain continued for over a century, before its repeal in 1976. Federal Land Policy and Management Act of 1976 (FLPMA), Pub. L. No. 94‑579, § 706(a), 90 Stat. 2743. Yet while FLPMA repealed the offer to create new rights-of-way, "[t]he law repealing R.S. 2477 expressly preserved any valid, existing right-of-way." Lyon v. Gila River Indian Cmty., 626 F.3d 1059, 1076 (9th Cir. 2010) (citations omitted), see 43 U.S.C. 1769(a). Thus, FLPMA "had the effect of 'freezing' R.S. 2477 rights as they were in 1976." Id. at 741 (quoting Sierra Club v. Hodel, 848 F.2d 1068, 1081 (10th Cir. 1988)).

Various federal agencies, but primarily the Bureau of Land Management, have closed roads and trails across federal lands, sometimes without regard to R.S. 2477 rights-of-way. For instance, pursuant to the preliminary 2013 Lake Havasu Travel Management Plan, the BLM proposed to close over 150 miles of roads and trails and limit access to another 100 miles of roads and trails without first adjudicating whether any of the affected roads and trails are R.S. 2477 rights-of-way. Lake Havasu Field Office, U.S. Department of Interior, Havasu Travel Management Plan 6 (2013). Constituents appealed to their legislators for assistance in preserving access to these purported rights-of-way over federal lands. In response, the Arizona Legislature enacted Chapter 277 to re-assert the rights-of-way possessed by the State of Arizona. 2015 Ariz. Sess. Laws ch. 277.

Newly enacted Arizona Revised Statute § 37-931(a) provides that the "state, on behalf of itself and its political subdivisions, asserts and claims rights-of-way across public lands under … Revised Statute 2477." The next three sections of the statute disclaim any prior implicit or unintentional waiver of any R.S. 2477 rights-of-way that existed in Arizona.

B. This state does not recognize or consent, and has not consented, to the exchange, waiver or abandonment of any Revised Statute 2477 right-of-way across public lands unless by formal, written official action that was taken by the state, county or municipal agency or instrumentality that held the right-of-way across public lands and that was recorded in the office of the county recorder or the county in which the public lands are located. No officer, employee or agent of this state or a county, city or town of this state has or had authority to exchange, waive, or abandon a Revised Statute 2477 right-of-way across public lands in violation of this subsection, and any such purported action was void when taken unless later ratified by official action in compliance with this subsection.

C. The failure to conduct mechanical maintenance of a Revised Statute 2477 right-of-way across public roads does not affect the status of the right-of-way across public lands as a highway for any purpose of Revised Statute 2477.

D. The omission of a Revised Statute 2477 right-of-way across public lands from any plat, description or map of public roads does not waive or constitute a failure to acquire a right-of-way across public lands under Revised Statute 2477.

A.R.S. § 37-931 (B-D).

Finally, the statute turns to its primary concern: the conditions of access for valid R.S. 2477 rights-of-way. Section E sets forth scope, maintenance and use provisions.

E. For the purposes of this section:

1. The extent of a Revised Statute 2477 right-of-way across public lands is the dimension that is reasonable under the circumstance.

2. A Revised Statute 2477 right-of-way across public lands includes the right to:

(a) Widen the highway as necessary to accommodate increased public travel and traffic associated with all accepted uses.

(b) Change or modify the horizontal alignment or vertical profiles as required for public safety and contemporary design standards.

3. The public has the right to use a Revised Statute 2477 right-of-way across public lands to access public lands.

4. If privately owned land is completely surrounded by or adjacent to public lands, the landowner has the right to use a Revised Statute 2477 right-of-way across public lands to access that land.

5. A Revised Statute 2477 right-of-way across public lands shall be closed only by order of a court of competent jurisdiction or the proper completion of an administrative process established for the abandonment, maintenance, construction or vacation of a public right-of-way otherwise allowed by law.

A.R.S. § 37-931(E). The crucial implication of this final section is that Arizona R.S. 2477 rights-of-way may not be closed by a federal agency's regulatory fiat. We analyze the impact of this newly enacted statute below.

Analysis

This Opinion examines the impact of A.R.S. § 37-931 in guaranteeing that all valid Arizona R.S. 2477 rights-of-way over federal land shall remain open unless closed under certain specified circumstances[1]. The central question for this analysis is whether officers and employees of the State of Arizona and its political subdivisions may use, access, maintain, and guarantee access to the right-of-way in the event that a federal agency effects a closure of a valid R.S. 2477 right-of-way without complying with the procedures set forth in A.R.S. 37-931(E).

All easements over public land, including the R.S. 2477 rights-of-way at issue here, are subject to reasonable regulation. The federal government,

in its capacity as the owner of the servient tenement, has the right to reasonable use of its land, and its rights and the rights of easement owners are mutually limiting, though of course easements are burdensome by their very nature, and the fact that a given use imposes a hardship upon the servient owner does not, in itself, render that use unreasonable or unnecessary.

McFarland v. Norton, 425 F.3d 724, 727 (9th Cir. 2005) (internal quotation marks omitted); see also Restatement (Third) of Property (Servitudes) § 4.9 (2000). In short, any holder of an easement is subject to some amount of reasonable interference due to the property owner's use of the land over which the easement runs.

The question focuses on whether the officers and employees of the State of Arizona and its political subdivisions possess three related powers:

a. Are they authorized "to use [and] access . . . Revised Statute (R.S.) 2477 rights-of-way across federal lands"?

Yes. If a valid R.S. 2477 right-of-way across federal lands exists, officers and employees of the State of Arizona and its political subdivisions may use and access that easement.

b. Are they authorized to "maintain . . . Revised Statute (R.S.) 2477 rights-of-way across federal lands"?

Yes. It should be noted, however, that the rights and power of the State of Arizona and the rights and powers of the federal government are "correlative rather than plenary, absolute, or exclusive." United States v. Garfield Cnty., 122 F. Supp. 2d 1201, 1263 (D. Utah 2000). When it comes to the upkeep of R.S. 2477 rights-of-way "[t]he law expects [both parties] to speak to each other about work to be done on lands to which they both have important correlative rights." Id. For this reason, any officer, employee, or political subdivision that wants to significantly alter a right-of-way or make changes beyond "routine maintenance" should consult with the federal land management agency before it acts. S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735, 745 (10th Cir. 2005) ("SUWA"); see also United States v. Vogler, 859 F.2d 638, 642 (9th Cir. 1998). In SUWA, the Tenth Circuit explained, "[t]o convert a two-track jeep trail into a graded dirt road, or a graded road into a paved one, alters the use, affects the servient estate, and may go beyond the scope of the right of way." 425 F.3dat 747 (citing Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988)). While State officials have authority to maintain R.S. 2477 rights-of-way to "preserv[e] the status quo," because federal regulations could be at issue and any significant changes could extend outside the State's authority, the best course is for the State's officials to work in conjunction with the relevant agency when contemplating changes to an R.S. 2477 right-of-way over federal land. See generally SUWA, 425 F.3d at 749.

c. Are they allowed to "guarantee access to Revised Statute (R.S.) 2477 rights-of-way across federal lands?"

Yes, in most cases. Under limited circumstances (e.g., emergencies), the owner of the servient estate may temporarily bar an easement owner from accessing a right-of-way. Still, the validity of certain emergency interventions does not legitimize either closures in the absence of an emergency or closures of such extended duration that the use of the easement is completely frustrated. In cases of unreasonable interference with the public's access, the officials and employees of the State and its political subdivisions should seek injunctive relief in court and may perform such self-help remedies as may be available and would not breach the peace. 25 Am.Jur.2d Easements and Licenses § 92 (1966) ("the person having the right to use an easement has the right to remove obstructions unlawfully placed thereon . . . so long as there is no breach of the peace."); see also, e.g., State ex rel Herman v. Cardon, 112 Ariz. 548, 551, 544 P.2d 657, 660 (1976) (one injured by "interference with the right of access, may abate it without resort to legal proceedings provided he can do so without bringing about a breach of the peace."). For example, a county sheriff may cut a lock off of a gate barring access to a valid right-of-way that has been closed without good cause.

Conclusion

Section 37-931 reasserts the right of Arizona officers, employees, and political subdivisions to use, access, maintain, and guarantee access to R.S. 2477 rights-of-way. While the State's authority over R.S. 2477 rights-of-way is broad, it is not exclusive. To operate R.S. 2477 rights-of-way, Arizona's officers, employees, and political subdivisions must work in coordination with the federal agencies tasked with administering these lands.

Mark Brnovich

Attorney General

This Opinion does not address what constitutes a "valid" R.S. 2477 right of way. That question is slightly obscured by two factors: nuanced choice of law issues, and a specious precedent from the Arizona Territorial Court. R.S. 2477 was a federal statute and federal law governs its interpretation. E.g., S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735, 768 (10th Cir. 2005), as amended on denial of reh'g (Jan. 6, 2006)("SUWA"). But R.S. 2477 was enacted against a backdrop of common law principles governing land use and, for that reason, courts can "'borrow' state law to aid in interpretation of the federal statute," id. at 762, specifically in the determination of "how the public can accept" the right of way. San Juan County v. U.S. 754 F. 3d 787, 798 (10th Cir. 2014). State law that thwarts the intent of R.S. 2477 is not considered. Id. Such was a 1909 Arizona Territorial Court ruling that, mistakenly concluding that common law land use rights had been abrogated, restricted R.S. 2477 routes to those meeting the state statutory definition of "public highway" (a standard requiring the state's formal imprimatur). See Tucson Consol. Copper v. Reese, 12 Ariz. 226, 228 (1909) ("The sole question presented is whether or not the road alleged to cross the land described in the complaint was a [statutory] public highway at the time suit was brought." (emphasis added)). R.S. 2477 had no such limitation and its grant far surpassed the lines drawn on any state-managed roadway map. The R.S. 2477 "highways" referred to any trail, road, or route "over which the public at large have a right of passage." SUWA, 425 F.3d at 765 (quotation and citation omitted). Moreover, the grant was "a standing offer of a free right of way over the public domain" that could be accepted "without formal action by public authorities." Id. at 741 (quotation and citation omitted). Reese, largely bereft of progeny anyway, is of dubious authority because its undue restrictions thwarted the Congressional intent of R.S. 2477 to ensure that routes remained open to the public at large. Moreover, Reese was implicitly overruled in 2004 by Pleak v. Entrada Prop. Owners' Ass'n, 207 Ariz. 418, 421 (2004). In Pleak, the Arizona Supreme Court flatly rejected the notion that "there are only two categories of roads—public and private—and the former can only be created pursuant to statute." Id. Rather, the court affirmed the uninterrupted vitality of the doctrine of common law dedication, i.e., "the dedication of roadway easements for public use," noting that the doctrine had never been abrogated by statute. Id. at 421-423 (specifically referencing the public highways statute),citing Thorpe v. Clanton, 10 Ariz. 94, 99-100 (1906).