Roads, Canals, and the 1866 Mining Act

The United States Congress passed a law in 1866 providing the public with a perpetual right-of-way to any road or canal built across public lands not previously reserved. Today, that law has sparked litigation across the West. SHRA has years of experience researching the existence of roads and canals on public lands, including in National Forests as well as across privately held parcels. Our historians have used homestead files at the U.S. National Archives, Bureau of Land Management historic surveys and surveyor notes, original U.S. Geological Survey documents, and various other archival sources to write about various land and water across the United States. SHRA has provided expert reports in multiple such cases as well as courtroom testimony.

Looking for Irrigation, Water, and Navigability?

Select Past Projects

A number of SHRA’s projects involve understanding historic access, including roads and trails. Below is a small sample of the work we’ve done.

Idaho’s Road Histories (2019-present)

A large landowner in Idaho has contracted with SHRA to conduct a history of several roads throughout the state. This research has involved investigations of several primary source collections including various county records, state forest records, many local historic newspapers, and an extensive examination of historic maps. Additionally, SHRA works with its partner, Ecosystem Sciences, to produce GIS maps for use by the client. Deliverables have included brief histories of each road and land development. 

Little Salmon River Road History, a Section 106 Mitigation Project (2018)

The Idaho Transportation Department contracted SHRA to research and write a history of the Little Salmon River Road, a significant travel artery connecting north and south Idaho and a road whose construction represents a watershed in transportation opportunities throughout the state.

The History of Cow Creek Road (2011-2012)

SHRA’s historical research on the contentious Cow Creek Road in Washington County, Idaho stretched back to early white settlement in the 1870s. Our researchers examined county records, General Land Office survey plats and field notes, newspaper accounts, and a variety of other sources to demonstrate the existence of this road prior to the privatization of land along the road and prior to the creation of a forest reserve on its northern stretches. Dr. Stevens provided an expert report and public hearing testimony.

Baker City, Oregon v. United States of America (2010-2011)

A small Oregon town hired SHRA to explore the history of the 20+ mile ditch that dates to the mid-19th century mining boom in the area and through which the town receives its municipal water supply. Much-needed repairs triggered the U.S. Forest Service to require National Environmental Protection Act studies on the work by the town, a prospect that would bankrupt it. The issue at hand was whether the ditch could be classified as an R.S. 2339 ditch under the 1866 Mining Law. SHRA researched and analyzed the status and use of the ditch over the course of the past 150+ years, and submitted an expert report in the matter. At a bench trial in October 2011, Dr. Jennifer Stevens provided one day of testimony, and the judge decided in favor of the town.

Middle Fork Holding Company, Inc. v. United States, et al. (2010)

The Middle Fork Lodge is located on a private inholding surrounded by the Challis National Forest and the Frank Church River of No Return Wilderness in central Idaho. The property owners were preparing to make repairs on the property’s ditches, which watered the fruit orchard and hay that were grown on site. Because the ditch headed in a designated wilderness area, however, the United States felt that the repairs triggered the requirements of the National Environmental Protection Act. SHRA was hired to determine whether the ditch existed prior to the creation of the National Forest Reserve and therefore would be exempt from NEPA due to its R.S. 2339 right of way granted under the Mining Act of 1866. Dr. Stevens provided an expert rebuttal report, pursuant to which the case was settled by the parties involved.

The History of Travel Northeast New Mexico (2016-2018)

The New Mexico Attorney General hired SHRA to conduct research on travel in a remote section in the northeast of the state for use in litigation against a private landowner.  Through intensive archival forensic research and partnering with a GIS and survey expert, SHRA prepared a report demonstrating public use of roads and trails throughout the region that, in most cases, predated the privatization of lands.  At trial in 2018, Dr. Stevens testified on the stand for three days regarding SHRA’s research. Her testimony and report played a significant role in the State of New Mexico prevailing in the case.