Here is an interesting and important ruling from the U.S. District court involving wilderness and the statute R.S.2477, which state and local governments have been trying to use to allow them to build roads and ATV trails into designated wilderness areas throughout the western United States. In this case the local government is Inyo County, California who would like to improve old routes leading into the Death Valley wilderness. You can read Inyo County's side of the story and also the court finding if you are interested in all the details.

There are many resources on the web with information and commentary on the history of the 1866 mining act, but since Section 8 of the act, which is the foundation of R.S.2477 claims, is one sentence I'll include it in its entirety:

And be it further enacted, That the right of way for the construction of highways over public lands, not reserves for public uses, is hereby granted.

The purpose of this statute was to allow right of way over federal land in an effort to settle the western frontier and to codify mining and ranching practices that were already happening out there. The wording of the law required no deed, permit, or any other sort of official correspondence with federal government to create a right of way over public land, nor did it require that highways be recorded in any fashion. In 1976 Congress repealed this law with the passage of the Federal Land Policy and Management Act (FLPMA PDF), but it did not invalidate existing rights of way. This has become a source of trouble because it opened the door for many undocumented access claims using an already vague and old legal statute. One could argue that the Federal Government or private owners of property are powerless to prevent you from using and even improving anything that could have been construed as a right of way between 1866 and 1976. States and local governments see this as a way to assert control over federal property, wilderness opponents see it as a tool to open wilderness to roads, and all-terrain vehicle enthusiasts see the opportunity to open vast areas of protected, and often sensitive land, to their off-road adventures. The problems are compounded because there are many legitimate routes crossing federal land throughout the west. Consider that 44 percent of the state of Utah is Federal Land. Many of the roads leading to rural areas and ranches in Utah originated as R.S. 2477 highways.

A few questions immediately arise from the statute. First and foremost: what could Congress have meant by 'highway' in 1866? A website billing itself as the "The Official RS 2477 Home Page" has a 'Fact Sheet' which suggests you consult a dictionary if you don't know what highway means. Would that I had an 1866 dictionary. I do have an Oxford English Dictionary, however, which has a definition (among many), "Any track well-beaten or regularly traversed by animals or things." This is probably not what the owners of the "official" page had in mind with their appeal to modern common sense to resolve a 19th century definition. In the Congressional Research Report, "Highway Rights of Way on Public Lands: R.S. 2477 and Disclaimers of Interest," Pamela Baldwin points out a distinction between road and highway based on the 1860 Webster's Dictionary:

"Roads" appears to be the more general term and "highways" the more specific term. In other words, while all highways are roads, not all roads are highways, since, arguably, highways are public, and are more significant, built up roads…

…it appears likely that Congress in the 1866 Act used the term highway in the sense of a significant or principal road; namely, one that was open for public passage, received a significant amount of public use, was constructed or improved, and that connected cities, towns, or other places of interest to the public.

Congress did not use the words road, route, way, path—they used 'highway.' Nevertheless, those who are making assertions based on R.S.2477 are claiming that all manner of routes qualify. For instance, do any of these photos look like highways in any sense of the word that Congress could have intended?

The Inyo County case provides no guidance to these questions as the judge found that Inyo County simply waited too long to press these claims—the time to act would have been back in 1979 when the wilderness study areas were designated.

Here in Alaska, the state has asserted that it controls access to a lot of federal land because of R.S.2477. The mission of state in this regard is:

To defend and assert the State's ownership and rights to navigable and public waters and to trails established under federal Revised Statute (RS) 2477, thereby allowing access for economic development and use of the state's land and resources. (source)**

They have conveniently solved the uncertain meaning of the law by stating unambiguously:

The word “highway” was historically used to refer to foot trails, pack trails, sled dog trails, crudely built wagon roads, and other corridors for transportation…The broad wording of the law does not limit the type of right-of-way to which it applies. (source)

These are not just esoteric legal mumblings. In 2003 the Pilgrim family used R.S. 2477 to bulldoze a road 13 miles through Wrangell-St. Elias National Park. Little Squaw Gold Mining Company has successfully used the statute to get the Federal Government to settle a case allowing for the recognition of the Chandalar Lake Trail as a 'highway.' The state of Alaska is actively cataloguing possible R.S.2477 claims. One of the 'highways' on their list is very close to my heart: the Telaquana Trail in Lake Clark National Park. As evidence of its suitability for consideration under R.S. 2477 the state's case summary cites reports from the 1930s that the route may be suitable for horses and the fact that a traditional route between native villages (neither of which still exist) once traversed the area. Not only is the Telaquana trail not a highway in any sense of the word, it is not even a trail. The word trail is in the name, but there is no trail on the ground—it is a vague, historic route over the tundra. By these standards almost any route that anyone ever took between two points would qualify under R.S. 2477 and allow commercial interests to press claims within protected areas such as National Parks and designated wilderness. The state of Alaska has identified approximately 649 routes it feels qualify under R.S.2477.