Orovada rancher Edward Bartell sees a problem with Senator Ira Hansen’s SB 316 which makes it a crime to block access to public rights-of-way. The law went into effect on July 1, 2019. Senator Hansen sent out letters to all the county officials, including to Humboldt County Sheriff Mike Allen and County Manager Dave Mendiola.  The Senator’s letter was posted in the Orovada Post Office according to Bartell.

Bartell says the bill is poorly written because it can be understood in several different ways. “It depends on how you look at that bill. If they're trying to define everything under the sun as being [SR 2477] road, obviously, anyone who borders BLM could be jeopardized whether you're a big landowner or small land owner. If it's trying to enforce existing right-of-ways (sic) then it's probably not that big of a deal, but if they're trying to argue that everything is a right-a-way that's not the way these RS2477 roads.”

RS 2477 was enacted by the United States Congress in 1866 to encourage the settlement of the western United States. Ratified as part of the 1866 Mining Law, the statute simply provides that “[t]he right of way for the construction of highways across public lands, not reserved for public uses, is hereby granted.”

The statute was repealed in 1976 by the Federal Land Policy and Management Act (FLPMA), however, the FLPMA expressly reserved any then-existing rights-of-way and states: “Nothing in this Act … shall be construed as terminating any valid lease, permit, patent, rights-of-way, or other land use right or authorization existing on the date of approval of this act.” Thus, RS 2477 rights-of-way established prior to the passage of FLMPA remain valid. 

Bartell sent a letter of his own to the sheriff and the county manager expressing his concern regarding the Senator’s law, adding that he wanted to make sure the local government aware of case law regarding public land access. 

In part, Bartell’s letter says, “Hanson (sic) appears to be asserting that if a landowner constructs a road prior to 1976 across his own land at his own expense; if this road happens to transect a road on public lands, this road on private lands can now be used by anybody day or night; even if this road happens to go right through the landowner’s backyard.” 

Bartell says Senator Hansen may be confused by recent case law, specifically the  Thomas v Zachry 311 F.Supp.3d 1198 (2018) in Storey County which Bartell says relies heavily on the 1976 date. “However,” Bartell wrote, “this case deals with one of those rare properties that was relatively recently transferred to private ownership. Thomas v. Zachry makes it abundantly clear the right of way could not have originated (located) once the land was in private hands.”

Elsewhere in the letter, Bartell points out that Senator Hansen’s law appears to place the burden of proof of the existence of a right-of-way on the landowner. Senator Hansen’s letter to Humboldt County Manager Dave Mendiola stated “To enforce trespass claims, it will be the responsibility of the person attempting to block access to prove such a road is NOT a public access road. They should have the burden of proof.”

But Bartell wrote “The party claiming a right-of-way bears the burden of establishing its existence.  Id. (citing Shultz v. Dep’t of Arm 96 F.3d 1222,1223 (9th Cir 1996)).  Here as the party seeking a right of way, Elko County must show by clear and convincing evidence, that its alleged right of way existed before the Jarbidge South Canyon was reserved as a national forest in 1909.” (See United States v Carpenter).”

Bartell says he sees this heading toward litigation in the future. “It's hard to say what they're trying to get at whether they're trying to force right-of-way or whether or enforce existing right-of-way. Unfortunately, it will probably require litigation if the local government tries to seize right-of-way without paying for it. Then, it would force litigation in the federal courts to seek compensation for damages.”

Bartell says he doesn’t have a problem with legitimately prosecuting landowners who do lock up public lands. And he doesn’t have a problem granting access to his lands if people ask. “We put up signs and give our phone number if somebody wants to go, and we generally allow access,” he said. “But I think this is creating conflict where people think there's an automatic right-of-way, which is concerning.”  

What he and most landowners want is to communicate to those who want access for recreational purposes safety concerns the owners might have about road conditions, fire restrictions or other hazards. Be respectful and ask for permission prior to going on or through private property.