TITLE:  Recognition of  R.S. 2477 Rights-of-Way under the Department of the InteriorÂs FLPMA Disclaimer  Rules and Its Memorandum of Understanding with the State of Utah, B-300912, February 6, 2004
BNUMBER:  B-300912
DATE:  February 6, 2004
**********************************************************************
Recognition of R.S. 2477 Rights-of-Way under the Department of the InteriorA*s
FLPMA Disclaimer Rules and Its Memorandum of Understanding with the State of
Utah, B-300912, February 6, 2004

    
B-300912
    
February 6, 2004
    
The Honorable Jeff Bingaman
Ranking Minority Member
Committee on Energy and Natural Resources
United States Senate
    
Subject: Recognition of R.S. 2477 Rights-of-Way under the Department of
the Interior*s FLPMA Disclaimer Rules and Its Memorandum of Understanding
with the State of Utah
    
Dear Senator Bingaman:
    
This responds to your request for our opinion on actions by the Department
of the Interior (the Department or DOI) in recognizing rights-of-way
across public lands granted by Revised Statute 2477 (R.S. 2477), through
use of a Federal Land Policy and Management Act (FLPMA)
disclaimer-of-interest process which the Department has incorporated into
a Memorandum of Understanding with the State of Utah (Utah MOU).
    
Specifically, this opinion addresses: (1) Whether either the Department*s
January 2003 amendments to its disclaimer-of-interest regulations
implementing FLPMA S: 315, 43 U.S.C. S: 1745 (2003 Disclaimer Rule),[1] or
the Utah MOU entered into in April 2003[2] is a *final rule or regulation
. . . pertaining to the recognition, management, or validity of a
right-of-way pursuant to [R.S. 2477]* prohibited from taking effect by
section 108 of the Department of the Interior and Related Agencies
Appropriations Act, 1997 (Section 108); and, independent of this Section
108 prohibition, 
    
(2) Whether the Department may use the authority of FLPMA S: 315 to
disclaim interests in R.S. 2477 rights-of-way.
    
Your request raises a number of legal issues as to which no court has
ruled to date and as to which there are a range of colorable arguments. 
As summarized below and detailed in the enclosed opinion, we conclude that
the 2003 Utah MOU, but not the 2003 Disclaimer Rule, is a final rule or
regulation prohibited from taking effect by Section 108.  We further
conclude, based on applicable rules of statutory construction and
administrative law, that on balance, FLPMA S: 315 otherwise authorizes the
Department to disclaim United States* interests in R.S. 2477
rights-of-way.
    
In preparing this opinion, we requested the legal views of the Department
on the issues raised by your request.  We obtained these views through the
Department*s written responses to our inquiries, an in-person conference,
and a number of telephone interviews with the Department*s legal staff. 
We also reviewed the Department*s responses to separate inquiries by you
and by Senator Lieberman on these matters,[3] as well as the Department*s
statements in various regulatory and policy documents and reports.
    
BACKGROUND
    
In order to promote settlement of the American West in the 1800s and
provide access to mining deposits located under federal lands, Congress
granted rights-of-way across public lands for the construction of highways
by a provision of the Mining Law of 1866, now known as R.S. 2477. 
Congress repealed R.S. 2477 in 1976 as part of its enactment of FLPMA,
along with the repeal of other federal statutory rights-of-way, but it
expressly preserved R.S. 2477 rights-of-way that already had been
established.  In its entirety, R.S. 2477 provided that:
    
*the right of way for the construction of highways over public lands, not
reserved for public uses, is hereby granted.* [4]
R.S. 2477 was self-executing and did not require government approval or
public recording of title.  As a result, uncertainty arose regarding
whether particular rights-of-way had in fact been established.  This
uncertainty, which continues today, has implications for a wide range of
entities, including the Department and other federal agencies, state and
local governments who assert title to R.S. 2477 rights-of-way, and those
who favor or oppose continued use of these rights-of-way.  In an effort to
resolve questions regarding the existence of particular R.S. 2477
rights-of-way, the Department has issued a series of policy and other
documents over the years discussing how it would administratively
recognize or validate specific rights-of-way.  By 1993, according to the
Department, the agency and the courts together had recognized about 1,453
R.S. 2477 rights-of-way across Bureau of Land Management (BLM) lands, with
about 5,600 claims remaining, primarily in Utah, and an unknown number of
unasserted potential claims.[5]  After the Department issued a proposed
rule in 1994 to establish a formal process for evaluating R.S. 2477
claims, Congress responded by enacting temporary moratoria and, in 1996, a
permanent prohibition on certain R.S. 2477-related activity.  The
permanent prohibition, set forth in Section 108, states that:
    
*No final rule or regulation of any agency of the Federal Government
pertaining to the recognition, management, or validity of a right-of-way
pursuant to [R.S. 2477] shall take effect unless expressly authorized by
an Act of Congress subsequent to the date of enactment of this Act.*[6]  
Mindful of this Section 108 restriction, DOI took two major actions in
2003 relating to R.S. 2477 rights-of-way that have generated considerable
attention in Congress and elsewhere and are the focus of your request.[7]
    First, the Department issued the 2003 Disclaimer Rule on January 6, 2003,
amending the Department*s existing regulations, promulgated in 1984,
implementing FLPMA S: 315.  FLPMA S: 315 authorizes the Department to
issue recordable disclaimers of U.S. interests in lands in certain
circumstances.  As pertinent here, S: 315 provides that:
    
*After consulting with any affected Federal agency, the [Department] is
authorized to issue a document of disclaimer of interest or interests in
any lands in any form suitable for recordation, where the disclaimer will
help remove a cloud on the title of such lands and where [the Department]
determines [that] a record interest of the United States in lands has
terminated by operation of law or is otherwise invalid . . ..*
FLPMA S: 315(a), 43 U.S.C. S: 1745(a).  DOI*s FLPMA S: 315 regulations
establish a disclaimer application process, see 43 C.F.R. subpart 1864,
and in the preamble to the 2003 Disclaimer Rule, DOI formally announced
for the first time that it might use this process to validate R.S. 2477
rights-of-way, although it stated that FLPMA S: 315 has always provided
such authority.  The Department also stated in the January 2003 preamble
that because the 2003 Disclaimer Rule did not contain *specific standards*
for evaluating asserted R.S. 2477 rights-of-way, it did not *pertain* to
their recognition, management, or validity and thus did not run afoul of
Section 108.  See 68 Fed. Reg. at 496-97.
The Department*s second major R.S. 2477-related action in 2003 was
issuance of the Utah MOU on April 9, 2003.  The Utah MOU states that DOI
will implement a *State and County Road Acknowledgment Process* to
*acknowledge the existence of certain R.S. 2477 rights-of-way on [BLM]
land within the State of Utah,* and the process DOI will use to make these
acknowledgments is the FLPMA S: 315 disclaimer process.  See Utah MOU at
2-3.  The State of Utah or any Utah county may request initiation of this
acknowledgment/disclaimer process for *eligible roads*; such roads must
meet specified criteria including *meet[ing] the legal requirements of a
right-of-way granted under R.S. 2477.* Id. at 3.  On January 14, 2004, the
Governor of Utah submitted the first application under the Utah MOU for
acknowledgment and a recordable disclaimer of interest of specific R.S.
2477 rights-of-way.
    

                             SUMMARY OF CONCLUSIONS

    
As detailed in the enclosed opinion, we conclude that the 2003 Utah MOU,
but not the 2003 Disclaimer Rule, is a final rule or regulation prohibited
from taking effect by Section 108.  We further conclude that FLPMA S: 315
otherwise authorizes the Department to disclaim United States* interests
in R.S. 2477 rights-of-way.
    
With respect to the first issue, although the 2003 Disclaimer Rule itself
is clearly a *final rule or regulation,* we do not believe it is a final
rule or regulation *pertaining to the recognition, management, or
validity* of R.S. 2477 rights-of-way subject to Section 108.  Because the
terms of the 2003 Disclaimer Rule (as well as the original 1984
regulations) are silent on R.S. 2477 rights-of-way, we do not believe the
Rule pertains to R.S. 2477 rights-of-way as contemplated by Section 108. 
The preamble to the 2003 Disclaimer Rule does discuss recognition and
validity of R.S. 2477 rights-of-way, but the preamble does not qualify as
a substantive rule under the Administrative Procedure Act (APA), which we
believe was Congress* intention in using the term *final rule or
regulation* in Section 108.  Moreover, because the 2003 Disclaimer Rule
preamble does not prescribe procedural or substantive standards by which
R.S. 2477 rights-of-way will be evaluated, it does not *pertain* to R.S.
2477 rights-of-way within the meaning of Section 108.
    
On the other hand, we conclude that the Utah MOU is a final rule or
regulation subject to Section 108*s prohibition.  There is little question
that the MOU pertains to the *recognition, management, or validity* of
R.S. 2477 rights-of-way; the purpose of the MOU was to resolve years of
conflict over these precise issues.  We also believe the MOU is an APA
substantive rule and thus a *final rule or regulation* under Section 108. 
It both satisfies the APA*s definition of *rule***an agency statement of
general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy,* see 5 U.S.C.
S: 551(4)*and meets the key test by which courts have defined substantive
rules*it has a binding effect on the agency and other parties and
represents a change in law and policy.
    
Apart from Section 108*s prohibition, on balance, we conclude that FLPMA
S: 315 authorizes DOI to disclaim interests in R.S. 2477 rights-of-way.  
This interpretation of FLPMA S: 315 represents a novel application of the
statute by the Department, but one which, under applicable principles of
statutory construction and administrative law, is entitled to substantial
deference.  A number of the key terms in FLPMA S: 315 are
ambiguous*notably, *lands,* *interests in lands,* and *cloud on title**and
in such instances, we afford considerable weight to the interpretation of
the agency charged with implementing the statutes so long as the
interpretation is reasonable.  We find the Department*s interpretations of
these terms to be reasonable.  The Department reads *lands* to include a
partial interest in lands, consistent with its longstanding definition of
that term in its FLPMA S: 315 disclaimer regulations.  Under this
interpretation, a particular R.S. 2477 right-of-way*which is an *interest
in lands**suffers a *cloud on title* when there is uncertainty about
whether the right-of-way has in fact been established, or whether instead
the United States has retained its right to exclusive use of the surface
property at issue.  The remaining requirement of FLPMA S: 315*that a
*record interest of the United States in lands has terminated by operation
of law**also is satisfied.  When an easement such as an R.S. 2477
right-of-way is granted, it creates two separate property interests: a
servient estate (here, owned by the United States) and a dominant estate
(here, owned by the holder of the R.S. 2477 right-of-way).  At the same
time, a record interest of the United States terminates because its
interest in exclusive use of the land over which the right-of-way now runs
terminates.  We recognize that this interpretation of FLPMA S: 315 by DOI
is a novel one and it is not the only reasonable interpretation.  However,
under established principles of statutory construction and firmly embedded
in administrative law, courts give substantial deference to an
implementing agency*s interpretation if it is one of several reasonable
interpretations, and thus we do so here in opining on how courts would
address these issues.
    
In sum, we conclude that the Utah MOU, but not the 2003 Disclaimer Rule,
is a final rule or regulation prohibited from taking effect by Section
108.  We conclude further that FLPMA S: 315 otherwise authorizes the
Department to disclaim the United States* interests in R.S. 2477
rights-of-way.
    
Please contact Susan D. Sawtelle, Associate General Counsel, at (202)
512-6417, Karen Keegan, Assistant General Counsel, at (202) 512-8240, or
Amy Webbink, Senior Attorney, at (202) 512-4764, if there are questions
concerning this opinion.
    

   Anthony H. Gamboa
General Counsel

   Enclosure
ENCLOSURE
B-300912               

    
RECOGNITION OF R.S. 2477 RIGHTS-OF-WAY UNDER THE
DEPARTMENT OF THE INTERIOR*S FLPMA DISCLAIMER RULES AND ITS MEMORANDUM OF 
UNDERSTANDING WITH THE STATE OF UTAH
    
In 2003, the Department of the Interior (the Department or DOI) took two
major actions relating to so-called R.S. 2477 rights-of-way that have
generated considerable attention and are the subject of this opinion. 
First, on January 6, 2003, the Department issued revisions to its existing
regulations, originally promulgated in 1984, implementing section 315 of
the Federal Land Policy and Management Act (FLPMA) (2003 Disclaimer
Rule).  FLPMA S: 315, 43 U.S.C. S: 1745, authorizes the Department to
issue recordable disclaimers of U.S. interests in lands in certain
circumstances, and DOI*s FLPMA S: 315 regulations establish a process by
which to apply for such disclaimers.  In the preamble to the 2003
Disclaimer Rule, DOI formally announced for the first time that it might
use this FLPMA disclaimer process to evaluate the validity of
rights-of-way across public lands for the construction of highways,
granted by an 1866 mining law now known as Revised Statute 2477 (R.S.
2477).  Although R.S. 2477 was repealed by FLPMA in 1976, Congress
expressly preserved rights-of-way that already had been established.  The
self-executing nature of these rights-of-way has led to considerable
uncertainty about whether particular rights-of-way have in fact been
established, and DOI*s 2003 preamble statement announced a new approach to
resolving this uncertainty*the use of FLPMA S: 315.
    
Second, following on to this preamble announcement, on April 9, 2003, the
Department signed a Memorandum of Understanding with the State of Utah
(Utah MOU).  The Utah MOU states that DOI will implement a *State and
County Road Acknowledgment Process* to *acknowledge the existence of
certain R.S. 2477 rights-of-way on Bureau of Land Management [BLM] land
within the State of Utah,* and the process DOI will use to make these
acknowledgments is the FLPMA S: 315 disclaimer process.  Under the Utah
MOU, the State or any Utah county may request initiation of this
acknowledgment/disclaimer process for *eligible roads*; such roads must
meet certain standards including *meet[ing] the legal requirements of a
right-of-way granted under R.S. 2477.*  On January 14, 2004, the Governor
of Utah submitted the first application under the Utah MOU for
acknowledgment and a recordable disclaimer of interest for specific R.S.
2477 rights-of-way.
    
Two principal legal concerns have been raised with respect to these recent
actions by the Department.  The first is whether either the 2003
Disclaimer Rule or the Utah MOU violates a statutory prohibition contained
in section 108 of the Department of the Interior and Related Agencies
Appropriations Act, 1997 (Section 108).  Section 108 prohibits any final
rule or regulation *pertaining to the recognition, management, or
validity* of R.S. 2477 rights-of-way from taking effect without express
congressional authorization, and the question is whether the 2003
Disclaimer Rule or the Utah MOU constitutes a final rule or regulation
covered by Section 108.  The second legal concern is whether, apart from
this Section 108 prohibition, the Department may use the authority of
FLPMA S: 315 to disclaim interests in R.S. 2477 rights-of-way.
    
These concerns raise a number of legal issues as to which no court has
ruled to date and as to which there are a range of colorable arguments. 
As discussed below, we conclude that the 2003 Utah MOU, but not the 2003
Disclaimer Rule, is a final rule or regulation prohibited from taking
effect by Section 108.  We further conclude, based on applicable rules of
statutory construction and administrative law, that on balance, FLPMA S:
315 otherwise authorizes the Department to disclaim United States*
interests in R.S. 2477 rights-of-way.
    
FACTUAL AND LEGAL BACKGROUND
    
In order to promote settlement of the American West in the 1800s and
provide access to mining deposits located under federal lands, Congress
granted rights-of-way across public lands for the construction of highways
by a provision of the Mining Law of 1866, now known as R.S. 2477.[8]  In
1976, Congress enacted FLPMA, which reflected a shift from Congress*
historic approach of encouraging disposition and settlement of federal
public domain lands to an approach favoring retention and management of
public lands.  As part of this new approach, FLPMA repealed R.S. 2477,
along with other federal statutory rights-of-way, but R.S. 2477
rights-of-way that already had been established were expressly preserved. 
See 43 U.S.C. S:S: 1701 note, 1769(a).  In its entirety, R.S. 2477
provided that:
    
the right of way for the construction of highways over public lands, not
reserved for public uses, is hereby granted.*

    
In the words of one court, R.S. 2477 made *an open-ended and
self-executing grant.*  Sierra Club v. Hodel, 848 F.2d 1068, 1078 (10th
Cir. 1988).  R.S. 2477 did not require government approval, issuance of an
identifying record such as a land patent, or public recording of title.  A
state or county needed only to satisfy the requirements set forth in R.S.
2477*namely, to engage in some form of *construction* of a *highway* over
non-reserved public lands*in order to establish a valid R.S. 2477
right-of-way.  See Southern Utah Wilderness Alliance v. BLM, 147 F. Supp.
2d 1130, 1140 (D. Utah 2001), appeal dismissed, 2003 WL 21480689 (10th
Cir. 2003).
    
As a result of this lack of formal approval and public documentation,
uncertainty arose regarding whether particular R.S. 2477 rights-of-way had
in fact been established.  In an effort to resolve some of this
uncertainty, the Department has issued a series of policy and other
documents over the years, discussing methods of administratively
recognizing or validating R.S. 2477 rights-of-way.  In 1988, for example,
DOI Secretary Hodel issued the so-called Hodel Policy, stating that that
although R.S. 2477 did not authorize the Department to *adjudicate*
applications for R.S. 2477 rights-of-way, it could *administratively
recogniz[e]* and record them on DOI land records.[9]  The Hodel Policy
directed DOI land management bureaus to develop internal procedures for
issuing such administrative recognitions and laid out the criteria by
which recognitions should be made.  In a 1993 report to Congress on R.S.
2477 issues, DOI stated that its R.S. 2477 administrative decisions were
intended to facilitate practical resolutions of R.S. 2477 disputes but
were not legally binding.  As the Department explained:
    
*Administrative recognitions [of R.S. 2477 rights-of-way under the Hodel
Policy] are not intended to be binding, or a final agency action.  Rather,
they are recognitions of *claims* and are useful only for limited
purposes.  Courts must ultimately determine the validity of such claims .
. . An administrative determination is an agency recognition that an R.S.
2477 right-of-way probably exists.  The process used to make an
administrative determination has been developed in response to claims
filed and provides an administrative alternative to litigating each and
every potential right-of-way.  [It] is not intended to be binding or final
agency action, but simply a *recognition* of *claims* for land-use
planning purposes.* 
    
U.S. Dep*t of the Interior, Report to Congress on R.S. 2477: The History
and Management of R.S. 2477 Right-of-Way Claims on Federal and Other Lands
(June 1993) (DOI Report to Congress) at 25-26.  According to the
Department, as of 1993, DOI and the courts together had recognized about
1,453 R.S. 2477 rights-of-way across BLM lands, with about 5,600 claims
remaining, primarily in Utah, and an unknown number of unasserted
potential claims.  Id. at 29.
    
The following year, in 1994, the Department attempted to create a more
formal administrative process for adjudicating R.S. 2477 claims.  It
proposed a regulatory process that it said would result in *binding
determinations of [the] existence and validity* of R.S. 2477
rights-of-way.  See *Revised Statute 2477 Rights-of-Way,* 59 Fed. Reg.
39216, 39216 (Aug. 1, 1994).  Congress was concerned with this regulatory
proposal, however, as it had been with some of the Department*s earlier
approaches to validating R.S. 2477 rights-of-way, and responded by
enacting temporary moratoria[10] and, in 1996, a permanent prohibition on
certain R.S. 2477-related activity.  The 1996 prohibition provided that:
    
*No final rule or regulation of any agency of the Federal Government
pertaining to the recognition, management, or validity of a right-of-way
pursuant to [R.S. 2477] shall take effect unless expressly authorized by
an Act of Congress subsequent to the date of enactment of this Act.*
    
Department of the Interior and Related Agencies Appropriations Act, 1997,
S: 108, enacted by the Omnibus Consolidated Appropriations Act, 1997, Pub.
L. No. 104-208, 110 Stat. 3009, 3009-200 (1996) (Section 108).[11]
    
In response to the Section 108 prohibition, DOI Secretary Babbitt issued
the so-called Babbitt Policy in 1997.[12]  The Babbitt Policy, revoking
the Hodel Policy, states that until any R.S. 2477 rules become effective,
and as an alternative to litigation in federal court, the Department will
continue to *process* and *give its views* on *assertions* of R.S. 2477
rights-of-way, but only in cases where there is a *demonstrated,
compelling, and immediate need* to do so.  In such cases, DOI will issue
*determinations* that *recognize* those rights-of-way meeting the R.S.
2477 statutory criteria.[13]
    
Finally, in 2003 and still mindful of the restrictions of Section 108, DOI
took the two actions that are the focus of this opinion.  First, as noted
above, it issued the 2003 Disclaimer Rule on January 6, 2003, revising its
existing regulatory process for issuance of recordable disclaimers of U.S.
interests in lands under FLPMA S: 315.  See *Conveyances, Disclaimers and
Correction Documents,* 68 Fed. Reg. 494 (Jan. 6, 2003), amending 43 C.F.R.
subpart 1864.  As pertinent here, FLPMA S: 315 provides that:

   *After consulting with any affected Federal agency, the [Department] is
authorized to issue a document of disclaimer of interest or interests in
any lands in any form suitable for recordation, where the disclaimer will
help remove a cloud on the title of such lands and where [the Department]
determines (1) a record interest of the United States in lands has
terminated by operation of law or is otherwise invalid; or (2) the lands
lying between the meander line shown on a plat of survey approved by [BLM]
or its predecessors and the actual shoreline of a body of water are not
lands of the United States; or (3) accreted, relicted, or avulsed lands
are not lands of the United States.*

   FLPMA S: 315(a), 43 U.S.C. S: 1745(a). The 2003 Disclaimer Rule expanded
the circumstances under which disclaimer applications could be filed.  As
amended, the regulations now: (a) allow state and local governments to
apply for a disclaimer at any time, removing the deadline applicable to
other entities (who must file within 12 years of the time they knew or
should have known of a possible U.S. claim);
(b) allow *any entity claiming title to lands,* not just current owners of
record, to apply for a disclaimer; and (c) provide that disclaimers will
not be issued if a federal land management agency other than BLM with
jurisdiction over the affected lands makes a *valid objection* to issuance
of the disclaimer.  See 68 Fed. Reg. at 502-03.
    
In addition to issuing the revisions themselves, DOI formally announced
for the first time, in the preamble to the 2003 Disclaimer Rule, that the
agency might use the FLPMA S: 315 disclaimer process to validate R.S. 2477
rights-of-way.  According to DOI, FLPMA S: 315 and the agency*s 1984
implementing regulations had always authorized this approach: 
    
*Recordable disclaimers may be issued [under FLPMA S: 315] where
applicants assert title previously created under now expired 
authorities.  For example, after adjudicating [an R.S. 2477] claim, BLM
may issue a recordable disclaimer of interest to disclaim the United
States* interest in a highway right-of-way under R.S. 2477 . . . BLM may
issue recordable disclaimers relating to valid R.S. 2477 rights-of-way
under the existing 1984 regulations, and this capability will continue
under today*s rule.*
    
68 Fed. Reg. at 496-97.  The Department also stated in the preamble that
because the 2003 Disclaimer Rule did not contain *specific standards* for
evaluating asserted R.S. 2477 rights-of-way, it did not *pertain* to their
recognition, management, or validity and so did not run afoul of the
restrictions of Section 108.  Id. at 497.
    
The Department identified such *specific standards* for recognizing R.S.
2477 rights-of-way three months later when it signed the Utah MOU, its
second major R.S. 2477-related action of 2003.  See Memorandum of
Understanding Between the State of Utah and the Department of the Interior
on State and County Road Acknowledgment (Apr. 9, 2003).  As noted above,
the Utah MOU states that DOI will implement a *State and County Road
Acknowledgment Process* to *acknowledge the existence of certain R.S. 2477
rights-of-way on [BLM] land within the State of Utah,* and the process DOI
will use to make these acknowledgments is the FLPMA S: 315 disclaimer
process.  Utah MOU at 2-3.  The State or any Utah county may request
initiation of this process*for which it must reimburse BLM its processing
costs*with regard to *eligible roads,* the standards for which include the
following:
    
.        The road must have existed prior to enactment of FLPMA in 1976
and be in current use;
.        The road must be identifiable by centerline description or other
appropriate legal description;
.        The existence of the road prior to FLPMA must be sufficiently
documented to show that the road meets the legal requirements of an R.S.
2477 right-of-way; and
.        The road was and must continue to be public and capable of
accommodating four-wheel cars or trucks and must have been subject to some
type of periodic maintenance. 
    
Id. at 3.  The Utah MOU also provides that the State and Utah counties
will not assert rights-of-way under the MOU for roads within the National
Park System, the National Wildlife Refuge System, or designated Wilderness
Areas or Wilderness Study Areas designated before October 1993, or lands
administered by agencies other than DOI except by their consent.  Id. at
2-3.  In order to *facilitate* the Utah MOU Acknowledgment Process, the
MOU provides that the 1997 Babbitt Policy*s requirements for R.S. 2477
determinations will not apply to such requests but will continue to apply
to all other requests for R.S. 2477 recognitions.  Id. at 4. 
    
In June 2003, the Department issued additional guidance (Utah MOU
Guidance) regarding how applications will be processed under the Utah
MOU.[14]  Reflecting DOI*s FLPMA S: 315 disclaimer application
regulations, the Utah MOU Guidance explains that: (1) applicants must pay
BLM*s administrative costs of processing applications (see 43 C.F.R. S:S:
1864.1-2 and -3); (2) at least 90 days before BLM makes a decision on an
application, it will publish a notice in the Federal Register summarizing
the application and noting an opportunity for public comment (see 43
C.F.R. S: 1864.2); and (3) adverse decisions can be appealed by the
applicant or any adverse claimant (see 43 C.F.R. S: 1864.4).
    
During the summer of 2003, various riders were proposed to the House
Department of Interior Appropriations bill for FY 2004 that would have
prohibited DOI from using appropriated funds to implement the 2003
Disclaimer Rule under certain circumstances.  None of these riders was
enacted.
    
Finally, on January 14, 2004, the Governor of Utah submitted the first
application under the Utah MOU for acknowledgment and a recordable
disclaimer of interest of specific R.S. 2477 rights-of-way.  As of the
date of this opinion, BLM has not yet published a Federal Register notice
regarding this application.
ANALYSIS
    
I.  Applicability of the Section 108 Prohibition to the 2003 Disclaimer
Rule and the
       Utah MOU

   A.     Applicability of Section 108 to the 2003 Disclaimer Rule
    
As discussed above, Section 108 prohibits any *final rule or regulation .
. . pertaining to the recognition, management, or validity of a
right-of-way pursuant to [R.S. 2477]* from taking effect unless expressly
authorized by an Act of Congress, but does not define the phrase *final
rule or regulation.*  For the reasons discussed below, we believe Congress
intended Section 108 to apply only to substantive rules under the
Administrative Procedure Act (APA), 5 U.S.C. S:S: 551-706, the statute
generally governing agency rulemaking and adjudications. 
    
The APA defines a *rule* as:
    
*the whole or a part of an agency statement of general or particular
applicability and future effect designed to implement, interpret, or
prescribe law or policy or describing the organization, procedure, or
practice requirements of an agency . . ..* 
5 U.S.C. S: 551(4).  There are different types of APA rules, the principal
distinction being *between *substantive rules* on the one hand and
*interpretative rules, general statements of policy, or rules of agency
organization, procedure, or practice* on the other.*  Chrysler Corp. v.
Brown, 441 U.S. 281, 315 (1979).  Substantive rules, also called
legislative rules, affect individual rights and obligations and must be
published for notice and comment under 5 U.S.C. S: 553(b).  They are the
only rules that can have a *binding effect* or the *force and effect of
law.*  Chrysler Corp., 441 U.S. at 315.  As the D.C. Circuit Court of
Appeals explained in Troy Corp v. Browner, 120 F.3d 277, 287 (D.C. Cir.
1997)(citation omitted), *[a] legislative rule . . . is one that:
(1) *supplements* a statute; (2) *effect[s] a change in existing law or
policy*; or
(3) *grant[s] rights, impose[s] obligations, or produce[s] other
significant effects on private interests.**  By contrast, interpretative
rules, general statements of policy, or rules of agency organization,
procedure, or practice are not subject to notice and comment requirements
and lack enforceable legal effect.  See, e.g., Davidson v. Glickman, 169
F.3d 996, 998 (5th Cir. 1999) (*Interpretive rules state what the
administrative officer thinks the statute or regulation means while
legislative rules affect individual rights and obligations and create
law.*) (internal quotation and citation omitted).[15]
    
We believe that by using the language *final rule or regulation,* Congress
intended the restrictions of Section 108 to apply only to APA substantive
rules.  First, Section 108 refers to no final rule or regulation *tak[ing]
effect* and only substantive rules have a *binding effect* and the *force
and effect of law.*   Similarly, the legislative history of Section 108
indicates that Congress intended to bar only the implementation of final,
substantive regulations, not, as did the earlier temporary moratoria,
agency activity preliminary to implementation of final rules.[16] 
Finally, Congress and courts often equate the terms *final rule* and
*regulation* with an agency rule subject to notice and comment, that is,
an APA substantive rule.  See, e.g., 5 U.S.C. S: 604 (*When an agency
promulgates a final rule under section 553 of [Title 5, U.S.C.], after
being required by that section or any other law to publish a general
notice of proposed rulemaking . . . the agency shall prepare a final
regulatory flexibility analysis.*); FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 127, 145 (2000) (referring to FDA and FTC substantive
rules as FDA and FTC *final rules*).[17]
    
Consistent with the above, in determining whether particular agency
statements constitute APA substantive rules, courts have focused on three
basic factors: (1) how the agency characterizes its own statement; (2)
whether the statement was published for notice and comment; and (3)
whether the statement binds private parties or the agency.  See, e.g.,
Molycorp Inc. v. EPA, 197 F.3d 543 (D.C. Cir. 1999).  Of these factors,
the third*a statement*s binding effect*is the most critical.  As the D.C.
Circuit Court of Appeals explained in Molycorp, *[t]he first two criteria
serve to illuminate the third, for the ultimate focus of the inquiry is
whether the agency action partakes of the fundamental characteristic of a
regulation, i.e., that it has the force of law.*  197 F.3d at 545.  See
also Ctr. for Auto Safety v. NHTSA, 710 F.2d 842, 846 (D.C. Cir. 1983)
(*The mere fact that NHTSA did not denominate its withdrawal of the
January Notice a *rule* is not determinative of whether it did, in fact,
issue a rule within the meaning of the statute.  It is the substance of
what the agency has purported to do and has done which is decisive.*)
(internal quotations and citations omitted). 
    
Applying these three factors, the 2003 Disclaimer Rule is clearly a
substantive APA rule and thus potentially*if it pertains to the
recognition, management, or validity of a R.S. 2477 right-of-way*subject
to Section 108.  First, the Department itself has characterized the 2003
Disclaimer Rule as a *final rule* in publishing it in the Federal
Register.  See 68 Fed. Reg. at 494; see also Letter from DOI Associate
Solicitor, Division of Land and Water Resources, to GAO Associate General
Counsel (Jul. 15, 2003) (DOI Response to GAO) at 4 (referring to 2003
Disclaimer Rule as a *rule* and *final rule*).  Second, the 2003
Disclaimer Rule is clearly a rule promulgated under APA notice and comment
procedures.  Third and most critically, it has a binding effect and the
force of law.  As the preamble to the 2003 Disclaimer Rule states at the
outset, *This rule is effective February 5, 2003.  Any application for a
recordable disclaimer pending on the effective date of this final rule
will be subject to this final rule.*  68 Fed. Reg. at 495.  The 2003
Disclaimer Rule also, under Troy Corp. v. Browner, above, **effect[s] a
change in existing law or policy* . . . and *grant[s] rights, impose[s]
obligations, or produce[s] other significant effects on private
interests.**  As noted above, it expanded both the entities that may apply
for a FLPMA S: 315 disclaimer and the time period in which they may do
so. 
    
The remaining issue concerning the applicability of Section 108 to the
2003 Disclaimer Rule is whether it *pertain[s] to the recognition,
management, or validity* of R.S. 2477 rights-of-way.  In our view, it does
not.  Nothing in language of the Disclaimer Rule itself discusses or
refers in any way to R.S. 2477 rights-of-way.  This is consistent with the
fact, emphasized by the Department, that the disclaimer regulations are
not designed to deal just with R.S. 2477 recognitions but instead are a
**catch-all* provision of [FLPMA] that allows the BLM to *help remove a
cloud on the title* to Federal land . . ..*[18]  The only mention of R.S.
2477 is in the preamble to the Rule, where DOI discusses how it may use
the FLPMA S: 315 disclaimer process as a means of recognizing R.S. 2477
rights-of-way.  We do not believe the preamble is a Section 108 *final
rule or regulation,* however.  Preambles generally are treated as
non-binding agency policy statements, not as substantive rules as required
by Section 108,[19] and there is nothing in the 2003 Disclaimer Rule
preamble indicating the Department intends to be bound by its
pronouncements regarding R.S. 2477.  At most, therefore, the preamble
might be deemed to be an interpretive rule,[20] which would not fall
within Section 108.  Moreover, we do not believe the preamble pertains to
the recognition, validity, or management of R.S. 2477 rights-of-way in the
manner contemplated by Section 108.  The plain language and legislative
history of Section 108 indicate that it was intended to prevent the
Department from creating and applying substantive standards for validating
the existence of R.S. 2477 rights-of-way or prescribing how they should be
managed, because Congress itself wanted to define the key standards and
scope of R.S. 2477 grants or at least maintain the status quo.[21] 
Nothing in the preamble identifies any such standards.  In sum, we
conclude that neither the 2003 Disclaimer Rule itself nor its preamble is
a final rule or regulation subject to the restrictions of Section 108.
    
B.     Applicability of Section 108 to the Utah MOU
    
We reach a different conclusion regarding the applicability of Section 108
to the Utah MOU.  In contrast to our conclusion regarding the 2003
Disclaimer Rule, we believe Section 108 applies to the Utah MOU.  As a
threshold matter, there can be little doubt that the Utah MOU *pertains*
to the *recognition, management, or validity* of R.S. 2477 rights-of-way. 
The purpose of the MOU was to address years of *unresolved conflicts* over
these precise issues, which DOI had *traditionally approached . . . by
trying to define the precise legal limits of the original [R.S. 2477]
statutory grant,* see Utah MOU at 1, and as discussed below, the MOU
includes substantive provisions pertaining to all three issues.  The
remaining question is whether the Utah MOU is a *final rule or
regulation,* meaning, as discussed above, that it is both an APA rule and
a substantive rule.  We conclude that it is both.
    
1.  The Utah MOU as an APA Rule
    
The Utah MOU meets the definition of an APA rule, that is, *an agency
statement of general or particular applicability and future effect
designed to implement, interpret, or prescribe law or policy.*  5 U.S.C.
S: 551(4).  Although the Utah MOU does not apply to all R.S. 2477
claimants in the United States, it applies to all claimants for certain
locations in Utah; agency MOUs or other statements applicable to just one
or a handful of entities, or just one individual, have been held to be APA
rules of either *general or particular applicability.*[22]  In addition,
courts sometimes look to whether the agency statement will also affect
entities indirectly as well as directly, in determining the scope of its
*applicability.*  In Hercules Inc. v. EPA, 598 F.2d 91, 118 (D.C. Cir.
1978), for example, the court noted that *even when only one manufacturer
is subject to the standards, that manufacturer is not the only affected
entity.  The standards affect the multitude who fish, take drinking water,
or otherwise, directly or indirectly, come in contact with waters
containing the discharged toxic substance, all of whom may appear in
proceedings. . . Rulemaking, not adjudication, is the appropriate,
flexible procedural mechanism to accommodate the input of all concerned.* 
Likewise, the Utah MOU will affect not only the Utah governmental entities
applying for R.S. 2477 acknowledgments/disclaimers, but also persons using
the asserted rights-of-way, those who disfavor continued use, and those
owning the underlying land where the federal government is no longer the
owner.   The Utah MOU thus is an *agency statement of general or
particular applicability.*
    
The Utah MOU also is an agency statement of *future effect.*  Courts have
applied this requirement to mean statements having future legal
consequences,[23] and the Utah MOU meets this test.  It addresses how DOI
will evaluate R.S. 2477 claims in the future, not rights-of-way that
already have been recognized.  Finally, the Utah MOU is *designed to
implement, interpret, or prescribe law or policy.*  It prescribes and
implements the law and policy by which Utah government entities will seek
recognition of their asserted R.S. 2477 rights-of-way.  See, e.g., Lefevre
v. Secretary, Dep*t of Veterans Affairs, 66 F.3d 1191, 1196-97 (Fed. Cir.
1995) (*The determination was a rule because . . . it prescribed the basis
on which the Department would adjudicate every claim seeking disability or
survivor benefits for specified diseases allegedly caused by exposure to
herbicides in Vietnam.*); Hercules Inc., above, 598 F.2d at 117 (*The
standards are designed to *implement* and *prescribe law* pursuant to the
authority of the 1972 Act.*).
    
The Department states that the Utah MOU is not a rule issued in violation
of Section 108 but rather a voluntary agreement with the State of
Utah.[24]  The courts have rejected such arguments.  Simply because an
agency statement sets standards for participation in a *voluntary* program
does not mean the standards are not *rules.*  As the D.C. Circuit held in
Sugar Cane Growers Coop. of Florida v. Veneman, 289 F.3d 89, 96 n.6 (D.C.
Cir. 2002), *[t] he government*s suggestion that because participation in
the program is *voluntary* the announcement and accompanying documents
should not be considered a rule is not worth a response.*  Similarly, in
Mitchell Energy & Devt. Corp. v. Fain, 311 F.3d 685 (5th Cir. 2002), the
Fifth Circuit held that a Labor Department statement establishing required
methods of administration for a federal/state unemployment compensation
system was a rule, even though states had the option of not participating
in the system.  Under the theory that standards for activities voluntarily
entered into are not rules, the court observed, *many things in the Code
of Federal Regulations [would not be] rules because the underlying
conduct, from operating a nuclear reactor to listing on the New York Stock
Exchange, is voluntary.*  Id. at 688.          
    
The Department also asserts that Section 108 is not implicated by its
recent actions because R.S. 2477 recognition decisions will result from an
informal agency adjudication, not a rulemaking.[25]   This may be correct
but is beside the point.  The subject of Congress* concern in Section 108
was DOI*s establishment of the overall standards for recognizing,
managing, and validating R.S. 2477 rights-of-way, not its decision in a
particular case*in other words, it was concerned about the *rules of the
game,* not a particular game score.  The Fifth Circuit rejected a similar
argument by the Department in Shell Offshore Inc. v. Babbitt, 238 F.3d 622
(5th Cir. 2001).  The court in Babbitt found that although DOI had issued
a decision in a particular adjudication, the decision was governed by a
policy change that was a substantive rule.  Similarly, in Hercules Inc. v.
EPA, 598 F.2d 91, 118 (D.C. Cir. 1978), the D.C. Circuit found that
certain EPA water pollution standards were rules, not orders, because the
*inquiries are the same whether the [toxic] substance is discharged by one
manufacturer or one thousand*; the determinations are *categorical, not
individual or local. . ..*  Here, the Utah MOU sets uniform rules for how
all R.S. 2477 claims to which the MOU applies will be decided.  As the
D.C. Circuit has noted, *rule making is not transformed into adjudication
merely because the rule adopted may be determinative of specific
situations arising in the future.*  Logansport Broad. Corp. v. United
States, 210 F.2d 24, 27 (D.C. Cir. 1954).[26]  In sum, the Utah MOU is an
APA rule.
    
2.  The Utah MOU as a Substantive Rule
    
We also find that the Utah MOU is a substantive rule.  The Utah MOU does
not meet two of the factors discussed above that courts apply in
determining whether a rule is a substantive rule*characterization as such
by the agency and publication for notice and comment in the Federal
Register.  According to DOI, the Utah MOU is not a rule but rather a
cooperative agreement under FLPMA S: 307(b).[27]  Nor was the Utah MOU
published for notice and comment.  Nevertheless, as noted above, courts
look beyond these first two factors to focus on the third: whether the
agency statement has a binding effect and the *force and effect of law.* 
In our view, there is little question that the Utah MOU has such an
effect.
    
First, DOI itself acknowledges that *the Utah MOU . . . is binding . . .
on the parties to the MOU, namely the Department and the State of Utah.* 
DOI Response to GAO at 4.  The fact that the Utah MOU incorporates the
FLPMA S: 315 disclaimer regulations by reference*which, as DOI also
acknowledges, are also *are binding on both the BLM and the
applicant**underscores the binding nature of the Utah MOU.  Id.  Although
the Utah MOU contains a standard clause asserting that it does not create
a private cause of action in favor of third parties,[28] that provision
does not diminish the substantive rights and responsibilities that the MOU
imposes on DOI, the State of Utah, and Utah local government entities.
    
Second, in the words of Troy Corp. v. Browner, above, the Utah MOU is a
substantive rule because it **effect[s] a change in existing law or
policy* . . . and *grant[s] rights, impose[s] obligations, or produce[s]
other significant effects on private interests.**  The Utah MOU is not
like the MOU between the Korean War Veterans Memorial Advisory Board and
the American Battle Monuments Commission in Lucas v. United States Army
Corps of Eng*rs, 1991 WL 229941 at * 4  (D.D.C. 1991), for example, which
the court found was *written to establish procedural guidelines rather
than to impose limitations on the Board*s statutory authority* and thus
was not a substantive rule.  Nor is the Utah MOU like the MOU in Bragg v.
Robertson, 72 F. Supp. 2d 642 (S.D. W. Va. 1999), between DOI*s Office of
Surface Mining, EPA, the U.S. Army Corps of Engineers, and a state
environmental agency.  That MOU expressed the agencies* interpretation of
certain regulations and was challenged as being a substantive rule that
*initiate[d] a profound change in the [existing] regulatory program*
without compliance with notice and comment requirements.  Id. at 654.  The
court ruled that the MOU was an interpretive rule, not a substantive rule,
because the MOU itself *disavow[ed] any substantive effect*[29] and
because the court, deferring to the interpretation of the MOU agencies
charged with administering the relevant statutes, found that the MOU
simply codified the agencies* current practice and thus *merely reminds
affected parties of existing duties . . ..*  Id. at 655.[30]
    
The Utah MOU stands in stark contrast to the MOUs in Lucas and Bragg. 
Unlike the MOUs in those cases, the Utah MOU does impose binding
obligations*on DOI and Utah.  And unlike those cases, the Utah MOU also
works changes in existing law and policy*pertaining to the recognition,
management, and validity of R.S. 2477 rights-of-way.  In broadest terms,
the Department will now recognize and validate R.S. 2477 rights-of-way by
applying the substance and procedures applicable to FLPMA S: 315
disclaimers, and R.S. 2477 rights-of-way acknowledged under this process
will be given the same effect as lands or interests disclaimed under FLPMA
S: 315: the United States will be estopped from asserting a claim as to
them.  See 43 C.F.R. S: 1864.0-2(b).  As the MOU recognizes, this
represents a significant change from the Department*s existing policy in
recognizing R.S. 2477 rights-of-way*the Babbitt Policy*which will no
longer apply to R.S. 2477 rights-of-way covered by the MOU.   We identify
below examples of some of the specific changes effected by the Utah MOU.
    
a.      Changes in standards for recognition and validation of R.S. 2477
rights-of-way
    
As discussed above, the Utah MOU identifies the criteria for *roads* that
will be considered *eligible* for *acknowledgment* as valid R.S. 2477
rights-of-way.  While the Department states that the disclaimers it issues
under the Utah MOU will *essentially preserve the status quo,* in fact
several of these criteria represent a departure from prior case law and/or
longstanding Department policy*as the Department seems to recognize by
stating that its new approach will only *essentially* preserve the status
quo and that *[m]ost* but not all asserted R.S. 2477 claims in the West
satisfy the R.S. 2477 *construction* and *highway* requirements under
*almost* any statutory interpretation.  See DOI Response to Sen. Bingaman
at 1; Utah MOU at 1.  For example, the Utah MOU criterion that a road have
been in existence prior to FLPMA*s enactment in 1976 and be in current use
is equivalent to the *continuous use* standard for R.S. 2477
*construction* urged by Utah counties but rejected in Southern Utah
Wilderness Alliance v. Bureau of Land Management, 147 F. Supp. 2d 1130 (D.
Utah 2001), appeal dismissed, 2003 WL 21480689 (10th Cir. 2003) (SUWA). 
As BLM successfully argued in SUWA, the term *construction* in R.S. 2477
requires some form of purposeful, physical building or improvement, not
simply continuous use.  As the court explained, *[a] highway right-of-way
cannot be established by haphazard, unintentional, or incomplete actions.
. . . [T]he mere passage of vehicles across the land, in the absence of
any other evidence, is not sufficient to meet the construction criteria of
R.S. 2477 and to establish that a highway right-of-way was granted.*  Id.
at 1138-39.  See also United States v. Garfield County, 122 F. Supp. 2d
1201, 1227 n.5 (D. Utah 2000) (adopting Department*s interpretation of 
*construction* as meaning actual building and more than mere use).
    
The Utah MOU also changes the meaning of the basic R.S. 2477 term
*highway,* by equating it with the term *road.*  Utah MOU at 1.  Courts
have not always equated the two terms.  In SUWA, for example, the court
disagreed that highways could be established by the mere passage of
wagons, horses, or pedestrians and accepted the Department*s definition of
*highway* as *a road freely open to everyone; a public road.*  147 F.
Supp. 2d at 1143.  The court also agreed with the Department that a road
must be a significant one to be an R.S. 2477 highway: *It is unlikely that
a route used by a single entity or used only a few times would qualify as
a highway . . . a highway connects the public with identifiable
destinations or places.*  Id. 
    
Finally, the Utah MOU changes the terms under which R.S. 2477
rights-of-way claims will be processed.  In order to obtain recognition of
its R.S. 2477 right-of-way, the claimant must agree to reimburse BLM*s
costs of processing the application.  As a neighboring state has objected
to the Secretary of the Interior, *[a]n RS-2477 right-of-way arises from a
statutory grant and is not a right-of-way permit for which [the
Department] is authorized to charge processing fees.*[31]  Whether or not
such a fee is legally authorized, it represents a new prerequisite to
obtaining recognition by the Department of an R.S. 2477 right-of-way and
thus does not simply *remind* applicants of an *existing duty* in the way
that an interpretive rule does.  Fertilizer Institute v. EPA, 935 F.2d
1303, 1307-08 (D.C. Cir. 1992); see Five Flags Pipeline Co. v. United
States Dep*t of Transp., 1992 WL 78773 (D.D.C. 1992) (Department of
Transportation fee schedule was legislative rule because it *did not
merely *remind* the pipeline companies of an *existing duty.*  Rather, the
schedule created an entirely new obligation to pay fees in precise amounts
based on a specific mathematical computation that did not previously
exist.*).
    
b.  Changes in management standards for valid R.S. 2477 rights-of-way
    
The Utah MOU also sets standards for management of valid R.S. 2477
rights-of-way different from the standards set by at least some courts. 
As the Utah MOU explains, road management includes *road width and ongoing
maintenance levels . . ..*  Utah MOU at 3.  Courts have found that the
appropriate standard for determining what maintenance or improvements an
R.S. 2477 holder may undertake to expand the scope of a right-of-way is a
*reasonable and necessary* standard.  See, e.g., Sierra Club v. Lujan, 949
F.2d 362, 364, 369 (10th Cir. 1991); United States v. Garfield County, 122
F. Supp. 2d 1201 (D. Utah 2000).  By contrast, the Utah MOU adopts a
ground-width disturbance standard, see Utah MOU at 3, which the Garfield
County court explicitly rejected, stating that *[t]he law simply demands a
more thoughtful standard than that.*  Id. at 1232.  Further, courts have
measured the extent of an R.S. 2477 right-of-way as of the date of FLPMA*s
enactment or when the underlying lands were *reserved for public uses,*
whichever is earlier.  See Garfield County,  122 F. Supp. 2d at 1228-29;
Sierra Club v. Hodel,  848 F.2d 1068, 1084 (10th Cir. 1988). The Utah MOU,
by contrast, measures as of the date of the MOU*April 9, 2003.  Utah MOU
at 3; see also Utah MOU Guidance at 5.
    
    
    
The Department asserts that the Utah MOU is not a substantive rule subject
to the prohibitions in Section 108.  It states that use of the FLPMA S:
315 disclaimer process in concert with the MOU does nothing more than
provide a procedure for acknowledging or denying the validity of R.S. 2477
claims, a procedure in lieu of litigation of quiet title claims or takings
claims in court.  See DOI Response to Sen. Bingaman at 1, 4.  The
Department appears to be asserting that the Utah MOU is a procedural rule
under the APA**rules of agency organization, procedure, or practice,* see
5 U.S.C. S: 553(b)(3)(A)*that would not be prohibited by Section 108.  The
Department is correct that procedural rules do not require notice and
comment, are not substantive rules, and would not be covered by Section
108.  However, as the court noted in Public Citizen v. Department of
State, 276 F.3d 634, 640-41 (D.C. Cir. 2002), rules that *encode[] a
substantive value judgment* are substantive and not procedural.  The Utah
MOU does considerably more than set procedural guidelines; it prescribes a
process and substantive standards for recognizing and determining the
validity of R.S. 2477 rights-of-way.  As the Department itself emphasizes
in its Utah MOU Guidance, the MOU establishes binding legal requirements
by which it will review disclaimer applications and *prepare a draft
decision that documents whether the claimed right-of-way meets the legal
requirements under R.S. 2477 and the provisions of the MOU . . ..*  Id. at
5. 
    
Our conclusion that the Utah MOU is the type of *final rule or regulation*
that Congress intended to cover in Section 108 is confirmed by its
similarity to the 1994 DOI proposed rule that prompted Congress to enact
Section 108 in the first instance.  As the court observed in Garfield
County, in passing Section 108, *Congress was concerned with rule-making
concerning the process for deciding the validity of R.S. S: 2477 claims.* 
122 F. Supp. 2d at 1237 (emphasis added).  Like the Utah MOU, the 1994
proposed rule outlined a process for determining which R.S. 2477
rights-of-way were validly acquired.  The rule was to put in place a
*formal administrative process by which those who claim R.S. 2477
rights-of-way can have the Department make binding determinations of their
existence and validity.*  See 59 Fed. Reg. at  39216.  Like the Utah MOU,
the proposed rule also defined the R.S. 2477 statutory terms *highway* and
*construction,* noting that these had *not been defined completely or
consistently, resulting in uncertainty about the exact nature and extent
of the grant.*  Id. at 39217.  Finally, the Department has described the
Utah MOU as *an important first step towards resolving decades of conflict
over the status of roads in the State of Utah* and *a reasonable approach
that will allow us to clarify ownership of some county roads.*  DOI
Response to Sen. Bingaman at 1.  These are the same sort of reasons
Secretary Babbitt presented in support of the 1994 proposed rule that led
to the Section 108 prohibition.[32]
    
In sum, we conclude that the Utah MOU is a final rule or regulation
prohibited from taking effect by Section 108.  It is a substantive rule
under the APA and pertains to the recognition, management, and validity of
R.S. 2477 rights-of-way.  The Section 108 prohibition stemmed from
congressional intent to prevent implementation of just such processes and
standards.
    
II.  Authority to Use FLPMA S: 315 to Disclaim Interests in R.S. 2477
Rights-of-Way
    
The second major legal concern with respect to the Department*s recent
R.S. 2477 actions is whether, apart from the prohibition of Section 108,
the Department may use the authority of FLPMA S: 315 to disclaim U.S.
interests in R.S. 2477 rights-of-way.  No court has ruled on this question
to date, and there are colorable arguments on both sides.  Based on rules
of statutory construction and deference, on balance, we conclude that
FLPMA S: 315 authorizes disclaimer of U.S. interests in R.S. 2477
rights-of-way.
    
As noted above, FLPMA S: 315 authorizes the Department to issue a
*disclaimer of interest or interests in any lands . . . where the
disclaimer will help remove a cloud on the title of such lands* and one of
three other conditions applies.  Two of those conditions relate to
riparian situations, see FLPMA S:S: 315 (a)(2), (a)(3), and thus are not
relevant to R.S. 2477 highway rights-of-way.  The third condition is FLPMA
S: 315(a)(1), where *a record interest of the United States in lands has
terminated by operation of law or is otherwise invalid.*  This is
potentially applicable to creation of highway rights-of-way under R.S.
2477.  Thus for the Department to be authorized to employ FLPMA S: 315 to
disclaim R.S. 2477 rights-of-way: (1) disclaimer must *help remove a cloud
on the title of such lands*; and (2) *a record interest of the United
States in lands [must have] terminated by operation of law or [be]
otherwise invalid.*  The Department has interpreted these requirements as
applying to disclaim R.S. 2477 rights-of-way, and on balance, we conclude
this is a reasonable interpretation that must be given considerable
deference.
    
First, the Department asserts that disclaimer by the United States *will
help remove a cloud on the title* of an R.S. 2477 right-of-way.  Congress
did not elaborate on the meaning of the phrase *cloud on the title* either
in FLPMA S: 315 or its legislative history.  Under real property law, a
*cloud on title* generally refers to an outstanding claim or encumbrance
attached to real property that, if valid, would affect or impair the title
of the owner of the property.[33]  In this case, the Department posits,
the *cloud* on title to a particular R.S. 2477 right-of way results from
the uncertainty surrounding whether it was established prior to the repeal
of R.S. 2477 in 1976.  DOI Response to GAO at 7; 68 Fed. Reg. at 496.  As
discussed above, R.S. 2477 was self-executing, meaning that no government
approvals were necessary and typically no recording was made in public
land records when an R.S. 2477 right-of-way was perfected by fulfillment
of the statutory elements**construction* of a *highway* over non-reserved
public lands.  If an R.S. 2477 right-of-way was not established over
public lands, then the U.S. retained its 100 percent fee simple title in
the lands*including interests in using and transferring the lands,
interests in excluding others from trespassing on the lands, any mineral
rights in the lands, and all other property interests.  On the other hand,
if an R.S. 2477 right-of-way was established, then one of the United
States* property interests*the right to exclusive use of the surface
property covered by the right-of-way*was terminated by operation of law or
became *invalid.*  The lack of certainty about which of these
circumstances exists at a given site can create a cloud that disclaimer of
the U.S. interest will *help remove.*  Although as DOI*s FLPMA S: 315
regulations make clear, a disclaimer does not literally *grant, convey,
transfer, remise, quitclaim, release or renounce any title or interest in
lands,* it has the effect of a quitclaim deed in the sense that it acts as
an estoppel against the United States asserting a competing claim to the
property interest being disclaimed.  See  43 C.F.R. S: 1864.0-2(b).  Thus
issuance of a disclaimer for an R.S. 2477 right-of-way means the United
States would no longer assert a competing claim to the right-of-way,
removing a *cloud* on its *title.*
    
Second, the Department asserts that the requirement for *a record interest
of the United States in lands [to have] terminated by operation of law or
[become] otherwise invalid* is satisfied if the conditions of R.S. 2477
were satisfied*that is, if, at some time between 1866 and 1976, there was
*construction* of a *highway* over non-reserved public lands.  At this
point, in the Department*s view, the complete fee simple ownership of the
United States in the land was altered to that of a holder of the servient
estate.  DOI Response to GAO at 10.  In property law parlance, the land
became *burdened* by the right-of-way or easement and the owner of the
land*the United States*was required to abstain from acts that
impermissibly interfered with or were inconsistent with use of the
easement.  See United States v. Garfield County, 122 F.Supp. 2d 1201, 1243
(D. Utah 2000).  Thus the unburdened fee interest of the U.S. was
terminated or invalidated by creation of the R.S. 2477 right-of-way.  See
Estes Park Toll-Road Co. v. Edwards, 32 P. 549 (1893)(*After entry and
appropriation of the right of way granted, and the proper designation of
it, the way so appropriated ceased to be a portion of the public domain,
was withdrawn from it.*).
     
There are certain objections to this analysis.  Some have argued that the
holder of an R.S. 2477 right-of-way does not have technical title to the
right-of-way, but only a usufruct right in it*the right to use property
owned by another party[34]*and therefore FLPMA S: 315 cannot be used to
remove a cloud on it.   However, the Department points out, and we agree,
that *title* is a term often used synonymously with various types of
ownership.  DOI Response to GAO at 8; see, e.g., Garfield County, above,
122 F. Supp. 2d at 1241-42 (discussing the county*s ownership of an R.S.
2477 right-of-way while clarifying that R.S. 2477 did not grant the county
fee simple title); Dover Veterans Council v. City of Dover, 407 A. 2d
1195, 1196 (S. Ct. N.H. 1979)(*Title* can denote any estate or interest,
including a leasehold or merely the right of possession.).  Thus we find
the view that disclaimer of U.S. interests in an R.S. 2477 right-of-way
would remove a cloud on its *title* for purposes of FLPMA S: 315 is
reasonable.
    
The Department*s interpretation has also been challenged by noting that,
by its terms, FLPMA S: 315 requires the *cloud * to be on title to
*lands,* not on an interest in lands such as a right-of-way.  According to
this argument, Congress referred to *lands* and *interests in lands* as
distinct concepts in FLPMA S: 315, and under traditional rules of
statutory construction, should be viewed as reflecting different
meanings.  2A Sutherland Statutory Construction S: 46:06 at 193-94 (6th
ed. 2000).[35]  Because, in their view, a disclaimer of an R.S. 2477
right-of-way would not remove a cloud on the title to the land underlying
the right-of-way, the Department*s interpretation is inconsistent with
FLPMA S: 315. 
    
In our view, the language of FLPMA S: 315 does not clearly indicate that
Congress used these different references to capture discrete, contrasting
concepts.  In this regard, FLPMA S: 315 authorizes the Department to
disclaim an *interest or interests in any lands* where the disclaimer will
help remove a cloud on the title of *such lands.*  Here, the reference to
*such lands* potentially refers either just to the land itself or to both
the land as well as lesser interests in the land.  Since the Department
promulgated its original 1984 regulations implementing FLPMA S: 315, it
has defined the term *lands* to include *lands and interests in lands . .
..*  43 C.F.R. S: 1864.0-5(e).  Given that the terms *lands* and
*interests in lands* are closely connected concepts, it is plausible to
conclude, as the Department did when it promulgated the 1984 regulations
and today, that *lands* in FLPMA S: 315 means *lands and interests in
lands.*  We are reluctant to conclude that the Department*s statutory
interpretation is impermissible.
    
The legislative history of FLPMA S: 315 introduces some doubt on the
Department*s position.  In the final analysis, however, it is
inconclusive.  The Department first proposed what became FLPMA S: 315 in a
draft public lands bill submitted to Congress, which Senator Jackson
introduced by request on February 28, 1973.[36]  Before FLPMA was enacted,
the Secretary of the Interior had no express statutory authority to issue
recordable documents disclaiming interests in land.[37]  The General Land
Office, BLM*s predecessor, had a need to issue disclaimers as a kind of
correction device, which it did even though it had no express authority. 
The purpose of S: 315 was, as the Senate Committee on Interior and Insular
Affairs reported to the Senate, to authorize the Secretary *to issue
documents of disclaimer when the United States has no interest in certain
lands . . ..*[38]  The Senate report states that the section authorizes
the Secretary to issue such documents in *three specified instances where
he finds no Federal interest and where there is a cloud on the
title.*[39]  This authority is necessary, the report continues, to
eliminate the need for judicial or legislative relief *in those cases
where the United States asserts no ownership or interest.*[40]  The House
report is to the same effect.[41]  It is not clear from these statements,
however, whether the Congress intended disclaimers to be issued when the
United States has no remaining interests in the interest being disclaimed
or whether there must be no remaining interests in the land at all.  So
viewed, the legislative history neither supports nor contradicts the
Department*s interpretation of S: 315[42] as allowing it to disclaim R.S.
2477 rights-of-way even when some federal interest in the property at
issue will remain.[43]
    
A final argument against the Department*s interpretation is that no
*record interest of the United States has terminated by operation of law,*
as required by the statutory language.  This view asserts that when R.S.
2477 granted rights-of-way or easements over public land, dominant and
servient estates were created, but no record interests of the U.S. were
terminated.  The Department states, however, and we agree, that the
creation of an easement involves the creation of two separate interests in
real property: a servient estate, here owned by the United States, and a
dominant estate, here owned by the holder of the R.S. 2477 right-of-way. 
DOI Response to GAO at 10; see, e.g., C/R TV v. Shannondale, 27 F.3d 104,
107 (4th Cir. 1994).  Under such circumstances, it follows that upon the
creation of these two interests, a record interest of the United States
terminated: its interest in exclusive use of the surface property over
which the right-of-way ran.   
    
We recognize that the Department*s interpretation of FLPMA S: 315, as
potentially applying to R.S. 2477 rights-of-way, is a novel one.  That
fact alone, however, should not condemn it.  It is not uncommon for the
scope and application of a grant of remedial administrative authority such
as FLPMA S: 315 to evolve with changing factual circumstances.  Moreover,
in analyzing whether FLPMA S: 315 authorizes the Department to do what it
seeks to do under the Utah MOU, we are mindful of the considerable weight
that should be accorded to an executive department*s construction of a
statutory scheme it is entrusted to administer.  United States v. Mead,
533 U.S. 218 (2001); Udall v. Tallman, 380 U.S. 1 (1965).  Indeed, under
bedrock principles of statutory construction and judicial deference in
cases involving agency action, where Congress has not spoken clearly to
the precise question at issue*for example, where a statute is ambiguous or
silent*courts defer to the interpretation of an agency charged with
implementing the statute if the interpretation is not unreasonable, nor
arbitrary or capricious.  Chevron v. Natural Resources Defense Council,
467 U.S. 837 (1984).  This rule applies even where a court believes that
there is a more reasonable interpretation, and even where the agency*s
interpretation is a departure from past practice.  See, e.g., American
Fed*n of Govt. Employees, Local 3884 v. FLRA, 930 F.2d 1315, 1324 n. 12
(8th Cir. 1991).  
    
As applied here, principles of statutory construction and deference firmly
embedded in administrative law counsel substantial deference to DOI*s
interpretation of FLPMA S: 315.  As discussed above, a number of terms in
FLPMA S: 315 are ambiguous, notably, *lands,* *interests in lands,* and
*cloud on title.*[44]  Although the Department*s interpretation is not
necessarily the only reasonable one, DOI is the agency responsible for
management of the public lands and for administration of FLPMA.  For the
reasons discussed above, we find the Department*s interpretations of these
terms and of FLPMA S: 315 as a whole to be reasonable. 
    
CONCLUSION
    
In sum, we conclude that the 2003 Disclaimer Rule is not a final rule or
regulation covered by the prohibition in Section 108, but that the Utah
MOU is covered because it is a substantive rule under the APA that
*pertain[s] to the recognition, management, and validity* of R.S. 2477
rights-of-way.  We also conclude that, independent of this Section 108
prohibition, the Department has authority under FLPMA S: 315 to disclaim
interests in R.S. 2477 rights-of-way.
    
    
February 6, 2004
    

   ------------------------

   [1] *Conveyances, Disclaimers and Correction Documents,* 68 Fed. Reg. 494
(Jan. 6, 2003). 
[2] Memorandum of Understanding Between The State of Utah and The
Department of the Interior On State and County Road Acknowledgment (Apr.
9, 2003).
[3] See Letter from Assistant Secretary of the Interior for Land and
Minerals Management to the Honorable Jeff Bingaman (June 19, 2003),
responding to Senator Bingaman*s April 21, 2003 Letter to the Secretary of
the Interior; Letter from Assistant Secretary of the Interior for Land and
Minerals Management to the Honorable Joseph Lieberman (Sept. 22, 2003),
responding to Senator Lieberman*s July 2, 2003 Letter to the Secretary of
the Interior.
[4] *An Act Granting Right of Way To Ditch and Canal Owners Over The
Public Land, and for Other Purposes* (Mining Law of 1866), Act of July 26,
1866, ch. 262, S: 8, 14 Stat. 251, codified at R.S. 2477, recodified at 43
U.S.C. S: 932, repealed by Pub. L. No. 94-579, S: 706(a), 90 Stat. 2793
(1976). 

   [5] U.S. Dep*t of the Interior, Report to Congress on R.S. 2477: The
History and Management of R.S. 2477 Right-of-Way Claims on Federal and
Other Lands  (June 1993) at 29. 
[6] Department of the Interior and Related Agencies Appropriations Act,
1997, S: 108, enacted by the Omnibus Consolidated Appropriations Act,
1997, Pub. L. No. 104-208, 110 Stat. 3009 (1996).  We have previously
determined that Section 108 is permanent law.  See B-277719, Aug. 20,
1997.
[7] In addition to your request for our legal opinion and your
correspondence to the Secretary, at least 88 members of the House of
Representatives, as well as Senator Lieberman, have written to the
Secretary in 2003 expressing concern about these actions.
[8] *An Act Granting Right of Way To Ditch and Canal Owners Over The
Public Land, and for Other Purposes* (Mining Law of 1866), Act of July 26,
1866, ch. 262, S: 8, 14 Stat. 251, codified at R.S. 2477, recodified at 43
U.S.C. S: 932, repealed by Pub. L. No. 94-579, S: 706(a), 90 Stat. 2793
(1976). 
[9] Memorandum from the Acting Assistant Secretary for Fish and Wildlife
and Parks and the Assistant Secretary for Land and Minerals Management to
the Secretary of the Interior, approved by Secretary Hodel, *Departmental
Policy on Section 8 of the Act of July 26, 1866, Revised Statute 2477
(Repealed), Grant of Right-of-Way for Public Highways (RS2477)* (Dec. 9,
1988).
[10] See National Highway System Designation Act of 1995, Pub. L. No.
104-59, S: 349(a)(1)-(2), 109 Stat. 568 (1995); Department of the Interior
and Related Agencies Appropriations Act, 1996, S: 110, as enacted by the
Omnibus Consolidated Appropriations Act of 1996, Pub. L. No. 104-134, 110
Stat. 1321 (1996).
[11] We have previously determined that the prohibitions of Section 108
are permanent.  See B-277719, Aug. 20, 1997.  The Department recently
suggested that Section 108 might have expired at the end of fiscal year
1997, see, e.g., *Conveyances, Disclaimers and Correction Documents,* 68
Fed. Reg. 494, 496 (Jan. 6, 2003), but it has previously acknowledged that
Section 108 is, in fact, permanent legislation.  See *Wilderness
Management,* 65 Fed. Reg. 78358, 78370 (Dec. 14, 2000) (*BLM is
forestalled by a 1997 statute from promulgating regulations on R.S. 2477
rights-of-way without Congressional consent.*).  Although language in
annual appropriations acts generally applies only during the fiscal year
to which the statute pertains, appropriations act provisions are
considered permanent if the statutory language or the nature of the
provision makes it clear that Congress intended the provision to be
permanent.  One clear indicator of permanency is use of so-called *words
of futurity,* such as *hereafter* or, as in Section 108, *subsequent to
the date of enactment.*  See, e.g., United States v. Vulte, 233 U.S. 509,
512 (1914); Norcross v. United States, 142 Ct. Cl. 767, 768 (1958); 70
Comp. Gen. 351, 353 (1991).  The permanency of Section 108 also is
demonstrated by the fact that it is a substantive provision, rather than
merely a restriction on the use of appropriations.  See, e.g., United
States v. Vulte, above, 233 U.S. at 513; Cella v. United States, 208 F.2d
778 (7th Cir. 1953).
[12] Memorandum from the Secretary of the Interior to the Assistant
Secretaries for Fish and Wildlife and Parks, Land and Minerals Management,
and Water and Science, *Interim Departmental Policy on Revised Statute
2477 Right-of-Way for Public Highways; Revocation of December 7, 1988
Policy* (Jan. 22, 1997).
[13] Babbitt Policy at 1-2.  DOI had previously articulated these
fundamental aspects of the Babbitt Policy in 1993.  See DOI Report to
Congress, above, at 5 and App. II, Ex. A.
[14] Memorandum from the BLM Deputy Director to the BLM State Director for
Utah, *Processing Applications for Recordable Disclaimers of
Interest-Acknowledgment of R.S. 2477 Rights-of-Way Pursuant to the
Memorandum of Understanding (MOU) of April 9, 2003* (June 25, 2003).
[15] See also Syncor v. Shalala, 127 F.3d 90 (D.C. Cir. 1997) (only
legislative rules can create law that binds the agency, courts, and third
parties); Pac. Gas & Elec. Co. v. Fed. Power Comm*n, 506 F.2d 33, 38 (D.C.
Cir. 1974) (*A properly adopted substantive rule establishes a standard of
conduct which has the force of law . . . a general statement of policy, on
the other hand, does not establish a *binding norm.**).
[16] See, e.g., S. Rep. No. 104-261 (1996) at 1-2 (*Resolution of R.S.
2477 right-of-way claims has been a very complex and contentious process*
and the provision that ultimately became Section 108 *will allow the
Department to proceed with the development of new regulations, while
prohibiting their implementation until expressly approved by an Act of
Congress.*).
[17] See also Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 682-83 (1987)
(equating final rules and regulations with substantive rules promulgated
after notice and comment); Franklin Assoc. Fisheries of Maine, 989 F.2d
54, 59 (1st Cir. 1993) (same); Alabama Tissue Ctr. v. Sullivan, 975 F.2d
373, 377 (7th Cir. 1992) (same); NRDC v. EPA, 683 F.2d 752 (3d Cir. 1982)
(same).
[18] Letter from Assistant Secretary of the Interior for Land and Minerals
Management to the Honorable Jeff Bingaman (June 19, 2003) (DOI Response to
Sen. Bingaman) at 1.
[19] See, e.g., Clean Air Implementation Project v. EPA, 150 F.3d 1200,
1208 (D.C. Cir. 1998) (*It is doubtful that the preamble alone is definite
and specific enough to be a binding statement of agency policy.  For one
thing, the statements concerning the permit shield were not published in
the Code of Federal Regulations.  For another, EPA has claimed that its
statements were no more than *an interpretation* . . . and [the
petitioner] has presented no evidence that the preamble has a direct and
immediate effect on it.*) (internal citations omitted); City of Seabrook,
Tex. v. EPA, 659 F.2d 1349, 1365 (5th Cir. 1981) (two preamble statements
referred to as *policy statements . . . not rules adopted in accordance
with administrative rulemaking procedure; they are merely *interpretive
rules* or *general statements of policy.**).
[20] See, e.g., Shalala v. Guernsey Mem. Hosp., 514 U.S. 87 (1995) (agency
manual advising how Medicare statutes and regulations would be applied to
particular reimbursement claims was interpretive, not substantive, rule).
[21] See, e.g., United States v. Garfield County, 122 F. Supp. 2d 1201,
1236-37 (citing S. Rep. No. 104-261 (1996) at 2, court states that
*Congress was concerned with rule-making concerning the process for
deciding the validity of R.S. S: 2477 claims*); 141 Cong. Rec. S17530-08
(1995) (statement of Sen. Hatch) (discussing DOI*s 1994 proposed R.S. 2477
rule, court states that *[t]he Secretary*s regulations are evidence that
the task of achieving a solution that protects the intent and scope of the
original statute while preserving the infrastructure of rural communities
must involve Congress. . . [W]e are beyond a regulatory fix on this
subject*).
[22] For example, in West Virginia Mining and Reclamation Ass*n v. Snyder,
1991 WL 331482 (N.D. W. Va. 1991), involving DOI*s Office of Surface
Mining Reclamation and Enforcement (OSM), the court held that an MOU
between OSM and the West Virginia Division of Energy was an APA rule where
it established a policy under which OSM would *provide[] financial and
technical assistance to West Virginia in exchange for direct involvement
in regulation of the [Surface Mining Control and Reclamation Act].*  See
also Mitchell Energy & Devt. Corp. v. Fain, 311 F.3d 685 (5th Cir. 2002)
(statement by Secretary of Labor was APA rule of *particular
applicability* where it applied to certified states and implemented
*methods of administration* required by the Social Security Act for the
federal/state unemployment compensation system); City of Alexandria v.
Helms, 728 F.2d 643 (4th Cir. 1984) (FAA order to implement scatter plan
test at National Airport was APA rule of particular applicability designed
to implement agency policy).
[23] See, e.g., Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 216 (1988)
(Scalia, J., concurring) (*The only plausible reading of [*future effect*]
is that rules have legal consequences only for the future.*); Sinclair
Broad. Group, Inc. v. FCC, 284 F.3d 148, 166 (D.C. Cir. 2002) (FCC local
ownership rule dealt with the *future effect, not the past legal
consequences of [local marketing agreements]*).
[24] See DOI Response to GAO, above, at 6 (*The Utah MOU is not a rule. 
It was developed to avoid litigation threatened by Utah and its counties. 
It is an agreement concerning how Utah will present its applications for
recordable disclaimers for R.S. 2477 rights-of-way for BLM*s
consideration.*).
[25] DOI Response to Sen. Bingaman, above, at 4; see also 68 Fed. Reg. at
497 (*Even if BLM were to issue a disclaimer of the United States*
interest in a valid right-of-way under R.S. 2477, the recognition of such
right-of-way would not be the result of this notice-and-comment rulemaking
but, rather, an informal agency adjudication resulting in a final
decision.  (See 5 U.S.C. 551(7) [of the APA])*).
[26] See also Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 448
(9th Cir. 1994) (*[B]ecause adjudications involve concrete disputes, they
have an immediate effect on specific individuals (those involved in the
dispute).  Rulemaking, in contrast, is prospective, and has a definitive
effect on individuals only after the rule subsequently is applied.*);
Richard J. Pierce, Jr., Administrative Law Treatise 304 (4th ed. 2002)
(*What distinguishes legislation from adjudication is that the former
affects the rights of individuals in the abstract and must be applied in a
further proceeding before the legal position of any particular individual
will be definitively touched by it; while adjudication operates concretely
upon individuals in their individual capacity.*).
[27] FLPMA S: 307(b), 43 U.S.C. S: 1737(b), gives the Department general
authority to enter into *contracts and cooperative agreements involving
the management, protection, development, and sale of public lands.*
[28] The Utah MOU states that it *shall not be construed as creating any
right or benefit, substantive or procedural, enforceable at law or in
equity, by a party against the State of Utah, Utah counties, the United
States, its agencies, its officers, or any other person.  This MOU shall
not be construed to create any right to judicial review involving the
compliance or noncompliance of the State of Utah, Utah counties, the
United States, its agencies, its officers, or any other person with the
provisions of this MOU.*  Utah MOU at 5.
[29] The MOU provided in part that *[t]he policy and procedures contained
in this MOU are intended solely as guidance and do not create any rights,
either substantive or procedural, enforceable by any party.  This document
does not, and is not intended to, impose any legally binding requirements
on Federal agencies, States, or the regulated public, and does not
restrict the authority of the employees of the signatory agencies to
exercise their discretion in each case to make regulatory decisions based
on their judgment about the specific facts and application of relevant
statutes and regulations.*  72 F.Supp 2d. at 654-55 (emphasis in
original).
[30] The practice of judicial deference, in certain circumstances, to the
statutory interpretation of an agency charged with administration of the
statute is discussed in Part II of this opinion.
[31] Letter from Executive Director, Colorado Department of Natural
Resources, to Secretary of the Interior (May 15, 2003) at 2.
[32] See 59 Fed. Reg. at 39216-17.  The stated purposes of the 1994
proposed rule are also similar to those for the Utah MOU.  The proposed
rule*s purposes were to:  *(a) Establish procedures for the orderly and
timely processing of claims for rights-of-way pursuant to R.S. 2477 over
lands managed by the Bureau of Land Management, National Park Service, and
U.S. Fish and Wildlife Service; (b) Define key terms; (c) Establish public
notice and appeal processes of claims for rights-of-way pursuant to R.S.
2477; and (d) Provide for the use of rights-of-way validly acquired
pursuant to R.S. 2477, consistent with the management of adjacent and
underlying Federal lands.*  59 Fed. Reg. at 39224.  Cf. Utah MOU at 1-2;
Utah MOU Guidance at 1.
[33] Black*s Law Dictionary 249 (7th ed. 1999).
[34] See Black*s Law Dictionary at 1542. 
[35] It is also argued that the terms *lands* and *interests in lands* are
used as distinct concepts in other provisions of FLPMA, as well as in
other land management statutes.  See, e.g., FLPMA S: 205, 43 U.S.C. S:
1715(c) (*lands and interests in lands*); FLPMA S: 206(a), 43 U.S.C. S:
1716(a) (*a tract of land or interests therein*); FLPMA S: 206(b), 43
U.S.C. S: 1716(b) (*title to any non-Federal land or interests therein in
exchange for such land, or interest therein*); 43 U.S.C. S: 1716(i)
(*exchange lands or interests in lands*); 16 U.S.C. S: 79c; 16 U.S.C. S:
271a; 16 U.S.C. S: 396f note (e); 16 U.S.C. S: 410hh-1 note (a)(6); 16
U.S.C. S: 460uu-46; 16 U.S.C. S: 521c.
[36] S. 1041, S: 308, reprinted in Comm. on Energy and Natural Resources,
95th Cong., Legislative History of the Federal Land Policy and Management
Act of 1976, at 1508-1509 (Comm. Print 1978).  The language of section
315(a) was substantially the same as what later became law, but did not
include the phrase *or is otherwise invalid.*
[37] See H.R. Rep. No. 94-1163, at 11 (1976); S. Rep. No. 94-583, at 50
(1975); S. Rep. No. 93-873, at 42 (1974) (*[U]nder existing law, the
Secretary of the Interior has no authority to issue any kind of document
showing that the United States has no interest in certain lands.*).  See
also Soda Flat v. Hodel, 670 F. Supp. 879, 887-889 (E.D. Cal. 1987).
[38] S. Rep. No. 94-583, at 25 (1975); S. Rep. No. 93-873, at 24 (1974).
[39] S. Rep. No. 94-583, at 50; S. Rep. No. 93-873, at 41.  See also
Letter from Acting Secretary of the Interior to Spiro Agnew, reprinted in
Comm. on Energy and Natural Resources, 95th Cong., Legislative History of
the Federal Land Policy and Management Act of 1976, at 1605 (*It would
provide authority to issue a document of disclaimer of interest in land to
which the United States no longer claims an interest.*).
[40] S. Rep. No. 94-583, at 51.
[41] H.R. Rep. No. 94-1163, at 11 (1976).
[42] Similarly, the Department*s regulations, stating that *[t]he
objective of the disclaimer is to eliminate the necessity for court action
or private legislation in those instances where the United States asserts
no ownership or record interest * are not conclusive on this point.  43
C.F.R. S: 1864.0-2(a) (emphasis added).
[43] One final legislative history argument has been made in opposition to
the Department*s interpretation that S: 315 authorizes it to disclaim R.S.
2477 rights-of-way.  As noted above, Congress repealed R.S. 2477 in FLPMA
while preserving already perfected R.S. 2477 rights-of-way.  Congress also
created Title V of FLPMA to establish a process for granting new
rights-of-way over public land.  It has been argued that in light of the
considerable attention Congress focused on rights-of-way in FLPMA, if
Congress had meant to allow the Department to disclaim R.S. 2477
rights-of-way through the use of S: 315, it would have said so.  While
this view may have some merit, we find it just as plausible to conclude
that Congress did not consider the issue at all, especially because no
explicit statutory solution was provided in FLPMA for the resolution of
R.S. 2477 claims.
[44] To the extent that DOI has filled the statutory gaps through notice
and comment rulemaking as it has with respect to the definition of
*lands,* we view such interpretation as conclusive under Chevron and Mead.