[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1639 Introduced in House (IH)]
108th CONGRESS
1st Session
H. R. 1639
To provide a means of resolving claims regarding the continued
existence of rights-of-way under former section 2477 of the Revised
Statutes, which was repealed by the Federal Land Policy and Management
Act of 1976.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 3, 2003
Mr. Udall of Colorado introduced the following bill; which was referred
to the Committee on Resources
_______________________________________________________________________
A BILL
To provide a means of resolving claims regarding the continued
existence of rights-of-way under former section 2477 of the Revised
Statutes, which was repealed by the Federal Land Policy and Management
Act of 1976.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE, FINDINGS, AND PURPOSE.
(a) Short Title.--This Act may be cited as the ``R.S. 2477 Rights-
of-Way Act of 2003''.
(b) Findings.--Congress finds the following:
(1) In 1866, to assist in the opening of the west for
resource development and settlement, Congress enacted a law
that granted rights-of-way for the construction of highways
across public land not reserved for public uses. That law was
later included in the Revised Statutes as section 2477 and thus
became popularly known as R.S. 2477.
(2) Section 706 of the Federal Land Policy and Management
Act of 1976 repealed R.S. 2477, but did not terminate valid
rights-of-way existing on the date of the enactment of the Act.
(3) R.S. 2477 did not require notifying the Federal
Government regarding utilization of specific grants of highway
rights-of-way or documentation in the public land records
regarding claims for such grants. Therefore, the number and
location of claimed highway rights-of-way under R.S. 2477 are
unknown. However, it is estimated that potential claims for
such rights-of-way could involve thousands of square miles of
Federal lands, including lands now included in the National
Forest System, National Park System, National Wildlife Refuge
System, and National Wilderness Preservation System.
(4) Historically, highway rights-of-way established under
R.S. 2477 did not present many problems to Federal land
managers because the existence of highways constructed on such
rights-of-way was obvious and unquestioned. In recent years,
controversies have arisen as to whether certain claimed routes
are valid highway rights-of-way under R.S. 2477. This causes
uncertainty both for parties claiming to possess a property
interest in such routes and for the agencies responsible for
managing Federal lands.
(5) Controversies related to claims under R.S. 2477 have
been exacerbated by the absence of uniform Federal standards
for review of such claims and by court decisions that have
failed to provide consistent guidance. In addition, some recent
State laws, including laws adopted after the repeal of R.S.
2477, are inconsistent with the statutory requirements. To
address these problems, in 1992, Congress directed the
Secretary of the Interior to study the history, impacts, and
status of R.S. 2477 rights-of-way, study alternatives to such
rights-of-way, and make recommendations for assessing claims
for such rights-of-way.
(6) Pursuant to this directive, officials of the Department
of the Interior consulted with interested parties in the public
land States and held public hearings in Alaska, California,
Idaho, Oregon, Montana, Nevada, and Utah. In addition, the
Department received and reviewed more than 4,000 pages of
written comments.
(7) In June, 1993, the Department of the Interior released
the report of the results of its study to Congress. The report
highlighted the need for a process whereby validly accepted
rights-of-way could be recognized and administered consistently
and fairly and recommended establishment of a uniform
administrative procedure and standards for determining within a
specified period which claimed rights-of-way were validly
accepted under the R.S. 2477 grant from the Federal Government.
(8) It is in the interest of both claimants and Federal
land managers to provide consistent, coherent guidance
regarding evaluation and timely resolution of claims for
rights-of-way based on R.S. 2477.
(c) Purpose.--The purpose of this Act is to establish a deadline
for filing of claims for highway rights-of-way under R.S. 2477 and to
provide a process for consideration and resolution of such claims.
SEC. 2. DEFINITIONS.
In this Act:
(1) The term ``abandonment'' means an intentional
relinquishment of a right, title, or claim to a right-of-way
pursuant to R.S. 2477, which may be inferred from a
preponderance of the evidence showing--
(A) the absence of continued public use of the
right-of-way for highway purposes on and after the
latest available date;
(B) the failure of the claimant to perform lawful
routine maintenance on the right-of-way since the
latest available date; or
(C) other conduct by the claimant inconsistent with
the use of the right-of-way by highway traffic.
(2) The term ``appropriate Federal agency'' means any
Federal agency having management jurisdiction over lands owned
or controlled by the United States upon which a R.S. 2477
right-of-way is claimed to exist.
(3) The term ``authorized officer'' means--
(A) the Secretary of the Federal Department having
management jurisdiction over lands owned or controlled
by the United States upon which the longest lineal
portion of a R.S. 2477 right-of-way is claimed to exist
or that Secretary's designee in the Federal agency
having management jurisdiction over such lands; or
(B) with respect to a claim involving former
Federal lands, the Secretary of the Interior or that
Secretary's designee.
(4) The term ``claim'' means the appropriate documentation
filed under section 3 asserting the existence of, and a
property interest in, a right-of-way pursuant to R.S. 2477.
(5) The term ``claimant'' means any State, political
subdivision of a State, or any other person asserting the
existence and validity of a right-of-way pursuant to R.S. 2477,
except a person who, as of the date of enactment of this Act,
was barred from bringing a civil action against the United
States under section 2409a of title 28, United States Code, to
adjudicate the title to the relevant lands.
(6) The term ``conservation system unit'' means--
(A) a unit of the National Park System;
(B) a unit of the National Wildlife Refuge System;
(C) a component of the National Wild and Scenic
Rivers System;
(D) a component of the National Trails System;
(E) a component of the National Wilderness
Preservation System;
(F) a National Monument; or
(G) any part of the National Landscape Conservation
System.
(7) The term ``construction'' means an intentional physical
act or series of intentional physical acts that were intended
to prepare, and that accomplished preparation of, a highway by
a durable, observable, physical modification of the land along
the entire claimed route to facilitate the safe and efficient
passage of four-wheeled highway vehicles.
(8) The term ``former Federal lands'' means lands title to
which has passed from the United States to another owner.
(9) The term ``highway'' means a thoroughfare along a
specific identified route that, prior to the latest available
date, was used by the public, without discrimination against
any individual or group, for the passage of four-wheeled
highway vehicles carrying people or goods from one inhabited
place to another inhabited place.
(10) The term ``inventoried roadless area'' means one of
the areas identified in the set of inventoried roadless areas
maps contained in the Forest Service Roadless Areas
Conservation, Final Environmental Impact Statement, Volume 2,
dated November 2000.
(11) The term ``latest available date'' means the latest
date on which a right-of-way pursuant to R.S. 2477 could have
been acquired, which shall be prior to--
(A) October 21, 1976, in the case of lands that
were unreserved public lands as of that date; or
(B) the date the public lands were reserved for
public uses (such as date of withdrawal from entry or
designation of public use by statute, Presidential
Proclamation or Executive Order, Secretarial Order, or
administrative decision) in the case of public lands
reserved for public uses before October 21, 1976.
(12) The terms ``public lands not reserved for public
uses'' and ``unreserved public lands'' means lands owned by the
United States that were available and open to the public under
various public land laws that provided for disposition to the
public, but lands that had not yet been set aside, dedicated,
withdrawn, reserved, settled, preempted, entered, appropriated,
or disposed of, or on which claims had not been located.
(13) The term ``R.S. 2477'' means section 2477 of the
Revised Statutes, which was codified as section 932 of title
43, United States Code, prior to its repeal by section 706 of
the Federal Land Policy and Management Act of 1976 (Public Law
94-579; 90 Stat. 2793).
(14) The term ``wilderness study area'' means Federal land
identified as having wilderness characteristics in a land and
resources management plan for a unit of the National Forest
System or public lands being managed pursuant to the Federal
Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.)
so as not to impair their suitability for preservation as
wilderness through inclusion in the National Wilderness
Preservation System.
SEC. 3. FILING OF CLAIM FOR DETERMINATION OF VALIDITY OF R.S. 2477
RIGHT-OF-WAY.
(a) Opportunity to File Claim.--During the four-year period
beginning on the date of the enactment of this Act, a claimant
asserting the existence and validity of a right-of-way pursuant to R.S.
2477 across lands owned or controlled by the United States or former
Federal lands may file a claim to that effect pursuant to this section.
(b) Place of Filing.--
(1) General rule.--A claimant shall file the claim in the
State or regional office of each appropriate Federal agency
having management jurisdiction over lands upon which the R.S.
2477 right-of-way is claimed to exist.
(2) Defense lands.--In the case of a claimed R.S. 2477
right-of-way across lands owned or controlled by the Department
of Defense, the claim shall be filed with the commanding
officer of the military installation having real property
accountability for such lands.
(3) Former federal lands.--In the case of a claim involving
former Federal lands, the claim shall be filed with the
relevant State office of the Bureau of Land Management and a
notice of the claim shall be provided to the current owner of
record of the lands.
(c) Effect of Failure to Meet Filing Deadline or Requirements.--
(1) Abandonment.--The failure of a claimant to timely file
a claim under subsection (a) or with the appropriate Federal
agencies under subsection (b) shall be deemed to constitute an
abandonment and a relinquishment of any rights purported to
have been acquired under R.S. 2477 related to that claim.
(2) Determination and notification.--If the authorized
officer determines that a claimant has not met the filing
deadline or the other filing requirements, the authorized
officer shall notify the claimant and all other parties of
record in writing and shall notify each appropriate Federal
agency that no further action on the claim is required. The
determination of the authorized officer shall constitute final
agency action, subject to review in the United States District
Court for the District of Columbia or the United States
District Court in the district within which the longest lineal
portion of the claimed R.S. 2477 right-of-way lies.
(3) Filing.--Any action initiated in district court
pursuant to paragraph (2) shall be filed not later than three
years after the date of the written notice to the claimant from
the authorized officer.
(4) Limited judicial review.--Judicial review of a
determination of an authorized officer under paragraph (2)
shall be limited to a review of the administrative record.
(d) Coordination Among Appropriate Federal Agencies.--In the review
and processing of a valid claim under section 4, the authorized officer
shall be responsible for coordinating with each appropriate Federal
agency subject to the claim.
(e) Limitation.--Except with regard to a claim filed pursuant to
this Act during the period specified in subsection (a), no officer,
agency, or court of the United States shall take any action to affirm
the validity of any assertion that any person or entity other than the
United States has a property interest in a right-of-way pursuant to
R.S. 2477.
SEC. 4. ADMINISTRATIVE DETERMINATION OF VALIDITY OF R.S. 2477 RIGHT-OF-
WAY CLAIM.
(a) Burden of Proof.--
(1) Burden on claimant.--A claimant shall have the burden
to prove that the grant of a right-of-way pursuant to R.S. 2477
was validly accepted and not abandoned.
(2) Presumption.--Any claim or portion of a claim involving
lands that, as of the filing of the claim, are within a
conservation system unit, an inventoried roadless area, or a
wilderness study area or are former Federal lands shall be
presumed to have been abandoned on the date on which the lands
became part of the conservation unit or inventoried roadless
area, became subject to management as a wilderness study area,
or became former Federal lands (whichever applies) unless the
claiment establishes, by clear and convincing evidence, that
routine lawful maintenance and use of the lands for highway
purposes on and after that date were so open and notorious that
management of such lands by the United States or the transfer
of ownership by the United States was intended to be subject to
continuation of the use of the lands for highway purposes.
(b) Contents of Claim.--A claim shall contain sufficient
information to permit the authorized officer to determine whether each
element of R.S. 2477 was met. At a minimum, the claim shall contain the
following:
(1) The name, affiliation, address, phone number (and
facsimile number if available) of the claimant.
(2) The names, affiliations, addresses, phone numbers (and
facsimile numbers if available) of all persons or entities with
property interests in land over which the claimed R.S. 2477
right-of-way lies.
(3) Proof of notification of the claim to all such persons
and entities.
(4) Identification of the entity that would have a property
interest in the claimed R.S. 2477 right-of-way.
(5) A description of the highway on which the claim is
based, including identification of the highway on an official
State or local map, if available, the name and number of the
highway, if available, beginning and ending points, a center-
line survey conducted in accordance with the Bureau of Land
Management Manual of Surveying Instructions (1973), type of
surface, and width.
(6) Evidence of construction of the highway, including
evidence of use of tools and of expenditures for highway
construction.
(7) Evidence that the claimed route is a highway, including
evidence of routine maintenance by a State or local government
public highway management agency and of public vehicular use.
(8) A statement of whether any photographs, profiles,
constructions, as-built or similar detail maps or diagrams of
the right-of-way, are available and, if so, where such material
may be viewed or copies obtained.
(9) If the right-of-way has been the subject of a prior
judicial or administrative determination, the case or file
identification number, the results of the last action taken,
and the dates thereof.
(c) Review of Claim.--
(1) Review by authorized officer.--The authorized officer
shall review the evidence submitted by a claimant to determine
whether a claim of a R.S. 2477 right-of-way contains sufficient
evidence to prove construction and use of a highway over
unreserved public lands prior to the latest available date.
(2) Determinations.--If the authorized officer determines
that a claim contains sufficient evidence to prove construction
and use of a highway over unreserved public lands prior to the
latest available date, the authorized officer shall determine
whether the R.S. 2477 right-of-way was subject to abandonment
by the claimant.
(d) Consultation.--
(1) In general.--In conducting the review of a claim under
subsection (c), the authorized officer shall consult with the
appropriate Federal Agencies, as well as States and Tribal
governments (and in the case of Alaska, Native Corporations, as
defined in section 3 of the Alaska Native Claims Settlement Act
(43 U.S.C. 1602)) that own or control lands affected by the
claimed R.S. 2477 right-of-way.
(2) Nonstate claims.--In conducting the review of a claim
brought by a claimant other than a State or political
subdivision thereof, the authorized officer shall consult with
each State and political subdivision thereof within which lands
affected by the claim are located.
(e) Draft Administrative Determination.--
(1) Preparation of draft.--After review of all the evidence
submitted with respect to a claim, review of Bureau of Land
Management official public land records, consultation under
subsection (d), and concurrence by the appropriate Federal
agencies, the authorized officer shall prepare a draft
administrative determination regarding the claim.
(2) Proposed findings.--The draft administrative
determination shall include proposed findings regarding the
following:
(A) Whether the grant of the right-of-way pursuant
to R.S. 2477 over public lands not reserved for public
uses was validly accepted prior to the latest available
date.
(B) If the grant of the R.S. 2477 right-of-way over
public lands not reserved for public uses was validly
accepted prior to the latest available date, whether
the R.S. 2477 right-of-way was subject to abandonment
by the claimant.
(C) If the grant of the R.S. 2477 right-of-way over
public lands not reserved for public uses was validly
accepted prior to the latest available date and was not
subject to abandonment, a description of the accepted
right-of-way, including its width, type of surface, and
the route between the beginning and ending points of
the right-of-way, as of the latest available date.
(3) Submission.--The authorized officer shall submit the
draft administrative determination to the claimant and publish
a notice of the draft administrative determination in a
newspaper of general distribution in the vicinity of the claim
and in the Federal Register. The notice shall request public
comment only on the draft administrative determination. The
public comment period shall last for a minimum of 60 days.
(f) Final Administrative Determination.--
(1) Review, consultation, and preparation.--Within one year
after the date of publication of the notice of the draft
administrative determination in the Federal Register, the
authorized officer shall review the public comment, if any, and
shall consult with each appropriate Federal agency. Upon
concurrence by each appropriate Federal agency, the authorized
officer shall prepare the final administrative determination.
(2) Findings.--The final administrative determination shall
include the same findings required under subsection (e)(2).
(3) Submission.--The authorized officer shall submit the
final administrative determination to the claimant and publish
a notice of the final administrative determination in the
Federal Register.
(g) Final Agency Action; Review.--
(1) Availability of judicial review.--A final
administrative determination made pursuant to subsection (f)
shall constitute final agency action subject to review in the
United States District Court for the District of Columbia or
the United States District Court in the district within which
the longest lineal portion of the claimed R.S. 2477 right-of-
way lies.
(2) Filing.--Any action initiated in district court
pursuant to paragraph (1) shall be filed not later than three
years after the date of the publication in the Federal Register
of the notice of the final administrative determination.
(3) Limited judicial review.--Judicial review of a final
administrative determination shall be limited to a review of
the administrative record.
(4) Election to acquire.--If judicial review of an
administrative determination results in a determination that
the grant of a right-of-way pursuant to R.S. 2477 was validly
accepted and not abandoned, the United States nevertheless may
retain such exclusive possession or control of the lands
traversed by such right-of-way or any part thereof as it may
elect, upon payment to the claimant of an amount the district
court in the same action determines to be just compensation for
such exclusive possession or control.
(h) Recording Requirements Regarding Valid R.S. 2477 Right-of-
way.--
(1) Survey and filing.--Within five years after the date of
publication in the Federal Register of a final administrative
determination recognizing a valid R.S. 2477 right-of-way, the
claimant shall file the center-line survey of such right-of-way
with the State office of the Bureau of Land Management and with
the appropriate land records of the State.
(2) Abandonment.--The failure of any claimant to complete a
center-line survey and to file such survey with the Bureau of
Land Management within the time period specified in paragraph
(1) shall be deemed to constitute an abandonment and a
relinquishment of any rights purported to have been acquired
under R.S. 2477.
(i) Option to Acquire.--If, within the period specified in
subsection (h)(1), a center-line survey is filed for a right-of-way
across lands owned or controlled by the United States, the authorized
officer, on behalf of the United States, may elect to retain such
exclusive possession or control of the lands traversed by such right-
of-way or any part thereof as the authorized officer may elect, upon
payment by the United States to the claimant of an amount the United
States District Court for the district within which the longest lineal
portion of the lands involved are located determines to be just
compensation for such exclusive possession or control.
SEC. 5. LAW GOVERNING ADMINISTRATIVE DETERMINATIONS.
(a) Relationship of Federal and State Law.--In making an
administrative determination of whether the grant of a right-of-way
pursuant to R.S. 2477 over unreserved public lands was validly accepted
prior to the latest available date, and in determining the scope of any
right-of-way so validly accepted, the authorized officer shall apply
Federal law and the law of the State in which the claimed right-of-way
is located, and which was in effect on the latest available date, to
the extent that such State law is consistent with Federal law.
(b) Effect of Prior Adjudications.--If the validity of any portion
of a claimed R.S. 2477 right-of-way across lands owned or controlled by
the United States has been adjudicated by a court of competent
jurisdiction before the date of the enactment of this Act in a matter
in which the United States was a party, the authorized officer shall
recognize such adjudication.
SEC. 6. RELATIONSHIP TO FEDERAL LAND POLICY AND MANAGEMENT ACT OF 1976
AND ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT.
Nothing in this Act is intended to, or shall be constructed to,
affect, change, alter, or modify title V of the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1761 et seq.) or title XI of the
Alaska National Interest Lands Conservation Act (16 U.S.C. 3161 et
seq.).
<all>