[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4313 Introduced in House (IH)]
<DOC>
114th CONGRESS
2d Session
H. R. 4313
To establish a procedure for resolving claims to certain rights-of-way.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
January 5, 2016
Mr. Cook (for himself, Mrs. Kirkpatrick, Mr. Gosar, Mr. Stewart, and
Mr. Tipton) introduced the following bill; which was referred to the
Committee on Natural Resources
_______________________________________________________________________
A BILL
To establish a procedure for resolving claims to certain rights-of-way.
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 ``Historic Routes
Preservation Act''.
(b) Findings.--Congress finds the following:
(1) The Act of July 26, 1866 (43 U.S.C. 932), provided for
an open-ended grant of ``the right of way for the construction
of highways over public lands, not reserved for public use.''.
(2) The purpose of that Act was to encourage the opening,
expansion, settlement, use and development of the American
West. Rights-of-way established by use over land in the public
domain are not terminated or abandoned by subsequent Federal
grants of the property underlying the rights-of-way and Federal
attempts to reacquire the rights-of-way or reservation by the
Federal Government. Instead, all rights-of-way accepted before
October 21, 1976, continue as easements that can be used by the
public.
(3) Unlike rights-of-way granted under FLPMA, the grant of
R.S. 2477 rights-of-way was complete on its face, and no
formalities, such as notice, entry, license, lease,
application, deed, patent, hearing, or formal public written or
oral acceptance were required to establish public rights-of-way
under R.S. 2477. That law simply required some limited degree
of construction activity on the land necessary or advisable to
enable passage over it or mere public usage for some undefined
amount of time.
(4) When early R.S. 2477 right-of-way grants were made and
accepted, the United States had no laws or regulations
governing the establishment or use of roads and rights-of-way;
so the territories, then the States, provided early
interpretive guidance on the action the ``use'' or
``construction activity''--necessary to accept and establish
the scope of those rights-of-way.
(5) Some rights-of-way established under R.S. 2477 were
easily identified, including thoroughfares that connected
settlements, towns and trade centers, postal routes, routes for
inter-territory commerce, and the like. But the rights-of-way
for lesser known, or lesser used, rights-of-way (perhaps
established as single-person trails, horse trails, mining
trails, fur trade routes, wagon routes, and other similar or
lesser uses) have been more difficult to identify; and special
interest organizations, business and government have argued for
various interpretations regarding the establishment, acceptance
and scope of R.S. 2477 rights-of-way. Those disputes have often
resulted in unsuccessful settlement negotiations and expensive
time-consuming litigation to establish R.S. 2477 rights-of-way.
(6) After decades of lawsuits, case-by-case negotiations,
law review articles, expert commentary, and various issued and
reissued government policies and procedures on point, there is
still no consistent definition or agreement regarding what
evidence or action is required to establish a R.S. 2477 right-
of-way, whether State or Federal law governs R.S. 2477 grants,
and what the scope of R.S. 2477 rights-of-way are today. The
uncertainty may be due, in substantial part, to the fact that
rights created by past laws, such as R.S. 2477, are generally
interpreted according to the understanding of terminology at
the time of passage: The historic meaning of the statutory
language as determined with reference to the surrounding
environment and events of the day.
(7) Although court decisions have provided much of the
guidance in quieting title to rights-of-way under R.S. 2477,
they have often incorporated differing State law to define the
acceptance and scope of R.S. 2477 rights-of-way, resulting in
inconsistent outcomes under similar facts. There is still
sentiment, apparent from comments by Federal parties in R.S.
2477 litigation, that interpretation and application of R.S.
2477 should be left exclusively to the Federal Government.
(8) Apparently intending to bring some certainty to R.S.
2477 right-of-way claims, in 1988 Secretary of the Interior
Hodel established a Department of the Interior policy that
would verify R.S. 2477 rights-of-way and allow the Department
to record them in Department land records if--
(A) they were not reserved public lands at the time
they were put into public use;
(B) there was some minimal ``construction'' to
enable public passage, such as clearing vegetation or
removing obstructions; and
(C) the R.S. 2477 route was open to public use by
pedestrians, pack animal, wagons or motorized vehicles.
(9) Nevertheless, the policy did not authorize the
Department of the Interior to adjudicate applications for R.S.
2477 rights-of-way.
(10) A more restrictive approach evolved under Secretary of
the Interior Babbitt that, among other restrictions,
substantially limited motorized vehicle access to Federal lands
and required more than mere ``use'' to establish
``construction'' necessary to accept a R.S. 2477 right-of-way
grant. Accordingly, the Federal Bureau of Land Management (the
BLM) was required to determine whether ``construction''
equivalent to building road structures had occurred in those
instances where a R.S. 2477 right-of-way was claimed.
(11) Apparently in response to Secretary Babbitt's strict
policy, Congress enacted a temporary moratorium, followed by
section 108 of the Omnibus Consolidated Appropriations Act,
1997, which states, in part, 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 Revised Statute 2477 (43 U.S.C. 932) shall take effect
unless expressly authorized by an Act of Congress subsequent to
the date of enactment of this Act.''. That law has been
determined to be permanent.
(12) Uncertainty leading to litigation and other expensive
forms of dispute resolution regarding public acceptance and
right to use R.S. 2477 rights-of-way has persisted for more
than 100 years. Although Congress in the early 1990s received a
report from the Department of the Interior suggesting a Federal
administrative process was necessary to formally recognize
validly accepted R.S. 2477 rights-of-way, that process has not
been implemented and there is limited, inconsistent action by
Federal administrative agencies and departments to determine
whether a R.S. 2477 grant has been accepted by the public, thus
indicating an apparent preference by the Federal Government to
have the courts decide R.S. 2477 claims.
(13) It is in the best interest of the public and
government to establish consistent, clear and conclusive
direction to timely evaluate and officially recognize valid
R.S. 2477 claims, to provide a legislative framework for
objectively achieving those ends within clearly limited
timeframes and with minimal executive and administrative
involvement, and to minimize costs and delays typically
associated with litigating R.S. 2477 claims.
(c) Purpose.--The purpose of this Act is to achieve judicial and
administrative efficiency, and to reduce costs typically associated
with resolving R.S. 2477 right-of-way claims by establishing a deadline
for filing those claims, establishing mandatory procedures for
considering and acting on those claims, and requiring Federal
administrative action to finally resolve those claims.
SEC. 2. DEFINITIONS.
As used in this Act:
(1) Abandon or abandonment.--The terms ``abandon'' and
``abandonment'' mean normal action by the governing body of a
claimant taken at a public meeting pursuant to notice that
declares all right, title and claim to any right-of-way or
right-of-way grant under R.S. 2477 is relinquished.
(2) Acceptance or accepted.--The terms ``acceptance'' and
``accepted'' mean the construction and continuous public use
for passage over a R.S. 2477 right-of-way.
(3) Authority or authorized officer.--The terms
``Authority'' and ``Authorized Officer'' mean the Secretary's
designee in the Federal department, agency, enclave,
reservation or installation under the Secretary's jurisdiction.
(4) Claim.--The term ``claim'' means the written document
required under section 3, in form established by the Secretary,
Authority or Authorized Officer, which shall be made available
for use by any claimant not later than 30 days after the
effective date of this Act.
(5) Claimant.--The term ``claimant'' means any person,
including a State, State political subdivision, city, town,
county, government parish, company, or individual, asserting
the existence and public acceptance of a right-of-way under
R.S. 2477.
(6) Construction.--The term ``construction'' means the
physical activity reasonably necessary, advisable or desirable
to allow continuous public use over a highway according to the
intended mode of travel or transportation. Maintenance
activities or the use of any tools or equipment may, but are
not required to, establish construction.
(7) Continuous public use.--The term ``continuous public
use'' means the use by the public for passage as often as
generally regarded by the public to be convenient or necessary,
during any length of time, whether continuous, sporadic,
interrupted or discontinued, and as the character or location
of the use has changed from October, 1866, to October 21, 1976,
to meet the exigencies of increased travel in light of the
traditional passage uses.
(8) Day.--The term ``day'' means 24-hour period immediately
following 12 o'clock midnight in the time zone where the
longest lineal part of the claimed R.S. 2477 right-of-way is
located, excluding official Federal holidays.
(9) Evidence.--The term ``evidence'' means any item under
section 4 that would be reliable, authentic, probative and
persuasive in Federal District Court civil litigation under the
Federal Rules of Evidence that are operative on the effective
date of this Act.
(10) FLPMA.--The term ``FLPMA'' means Federal Land Policy
and Management Act of 1976 (43 U.S.C. 1701 et seq.).
(11) Highway.--The term ``highway'' means any road, way or
other land surface route of travel that the public has the
right of use for passage, whether by carriage, animal, foot,
non-motorized or motorized vehicle.
(12) Public.--The term ``public'' means people, population,
or community as a whole.
(13) Public lands.--The term ``public lands'' means land
that is owned, controlled by, or subject to the jurisdiction of
the Federal Government for the benefit of the public and not
reserved at the time that the right-of-way was created.
(14) R.S. 2477 right-of-way grant.--The term ``R.S. 2477
right-of-way grant'' means an open-ended grant or dedication of
land by the United States for rights-of-way allowing public use
and passage, which could be accepted by construction or
continuous public use before October 21, 1976.
(15) R.S. 2477.--The term ``R.S. 2477'' means that part of
``An Act Granting the Right-of-Way to Ditch and Canal Owners
Over the Public Lands and for Other Purposes,'' commonly called
the Mining Act of 1866 (the Act of July 26, 1866, ch. 262,
section 8, 14, statutes 251, 253; 43 U.S.C. 932), stating ``And
be it further enacted, that the right of way for the
construction of highways over public lands, not reserved for
public uses, is hereby granted,'' as that law continued in full
force and effect until October 21, 1976.
(16) Relinquishment and disclaimer.--The terms
``relinquishment'' and ``disclaimer'' mean any type of deed or
equivalent document in form suitable for recordation, approved
and issued by the Secretary, Authority, or Authorized Officer,
disclaiming and relinquishing the interest of the Federal
Government in a R.S. 2477 right-of-way that has been accepted
pursuant to the provisions of this Act, and which documents the
right of public passage over and within that right-of-way.
(17) Reserve or reserved.--The terms ``reserve'' and
``reserved''--
(A) mean action by the United States to withdraw
land from the public domain and make it unavailable for
appropriation under Federal public land laws, which
requires dedication of that land by the United States
to a particular public use, such as a park, forest,
military establishment, national monument, wilderness
area, Federal enclave, wildlife refuge, water diversion
or impoundment, or government power generation, and
such withdrawal, dedication, and use for the dedicated
purpose occurs before the earlier of the R.S. 2477
right-of-way acceptance or October 21, 1976; and
(B) do not include Wilderness Study Areas and Areas
of Critical Environmental Concern.
(18) Scope.--The term ``scope'' means established public
use of the R.S. 2477 right-of-way as necessarily improved,
expanded, realigned or relocated before October 21, 1976, to
meet the public convenience, safety, or exigencies of increased
travel in light of its traditional right-of-way uses.
Permissible improvements, expansion, realignment or relocation
is determined according to the section 2(k) highway standards
of the State where the longest lineal part of the right-of-way
is located; or in the absence of such standards, ten feet on
each side of the survey center line, subject to reduction
according to the historic right-of-way width for the R.S. 2477
right-of-way traditional uses as of the date of acceptance, and
necessarily expanded according to the first sentence of this
paragraph.
(19) Secretary.--The term ``Secretary'' means the Secretary
of the Federal department having management jurisdiction over
land owned or controlled by the United States upon which a R.S.
2477 right-of-way is claimed to be located.
SEC. 3. PROCEDURE.
(a) Claim and Limitation of Action.--A claimant asserting public
acceptance of a right-of-way granted pursuant to R.S. 2477 must file a
claim, which shall include supporting evidence and proof of the notice
and reasonably attempted notice under subsection (c), within the 25-
year period that shall commence to run on the next business day
following the effective date of this Act.
(b) Place of Filing.--
(1) Generally.--Except as provided by paragraph (2), the
claim must be filed at the State or regional location as
designated by the Secretary.
(2) Defense land.--If the land underlying the claimed R.S.
2477 right-of-way is subject to the ownership or control of the
United States Department of Defense, evidence supporting the
claim shall be filed with the commanding officer of the
military installation or office having ownership or control of
the underlying land, or at such other location as designated by
the Secretary.
(c) Notice.--Claimant shall provide notice of the R.S. 2477 right-
of-way claim by publishing a general summary of the claim, including
the location and general description of the claimed R.S. 2477 right-of-
way, in a newspaper authorized to publish public notice under the laws
of the State where the longest lineal part of the claimed R.S. 2477
right-of-way is located, once per week for the two consecutive weeks
immediately preceding the filing of the claim. Within the four
consecutive weeks immediately following the filing of the claim,
claimant shall additionally provide, or reasonably attempt to provide,
written notice of the claim to all record owners of land underlying the
claimed R.S. 2477 right-of-way, except the Federal Government, and to
all owners of land contiguous to each edge of that claimed right-of-
way. Claimant's reasonable attempt to provide such written notice is
sufficient additional notice under this subsection if claimant verifies
the reasonable attempt under claimant's written oath or affirmation to
that effect filed with the Secretary where the claim is filed.
(d) Abandonment.--Failure to comply with subsections (a), (b), and
(c) is, on the first day following the time period in subsection (a),
an automatic irrevocable abandonment of any R.S. 2477 right-of-way that
has not been established by final judgment in a court of competent
jurisdiction or final enforceable settlement agreement between claimant
and the United States. The continuance authorized by section 6(b) shall
not apply to this subsection.
(e) Statue of Limitations.--Any statute of limitations for
documenting the right-of-way after such reservation is hereby waived
except as provided in subsection (a).
SEC. 4. EVIDENCE AND FINAL DECISION.
(a) Burden of Proof.--Claimant shall establish acceptance by a
preponderance of the evidence.
(b) Presumptions.--
(1) Acceptance conclusively and finally established.--
Unless the land underlying the claimed R.S. 2477 right-of-way
was reserved before the earlier of construction of a trail,
path, or other throughway on the right-of-way, or October 21,
1976, acceptance (including continuous public use, location,
construction and scope of the R.S. 2477 right-of-way) shall be
conclusively verified, proven, and established upon filing,
under oath or affirmation by claimant attesting to its
authenticity and accuracy, of--
(A) at least one type of evidence related to that
right-of-way selected from subsection (c)(1); or
(B) at least one type of evidence selected from
each of two subparagraphs in subsection (c)(2) showing
scope and acceptance before October 21, 1976.
(2) Copies and hearsay in documents.--Copies may be used as
evidence in place of original documents if they are accompanied
by a written declaration, under oath by a custodian, owner, or
author, that the copy is an accurate representation of the
original document's material terms. Hearsay contained in
documents, or otherwise, is regarded as reliable, admissible,
and probative for the purposes of this Act.
(3) Grant withdrawal.--Evidence produced by the United
States that establishes the United States reserved the land
underlying the alleged R.S. 2477 right-of-way before its
acceptance conclusively establishes withdrawal of the Federal
grant for that right-of-way.
(c) Categories of Evidence.--For the purposes of actions under this
Act, the following rules apply to categories of evidence:
(1)(A) A center line or other survey done by the Federal
Government or duly licensed land surveyor, applying generally
accepted survey standards and procedures or Federal Bureau of
Land Management Manual of Surveying Instructions applicable to
surveys before October 21, 1976, clearly showing the public
use, control, construction, location, direction, beginning and
end points, length, width and type of surface of the R.S. 2477
right-of-way as of a date certain.
(B) Maps, plats, maintenance records including actual or
estimated costs, photographs, GIS or global positioning data,
or other computer-generated images showing the location of the
R.S. 2477 right-of-way, prepared, made, edited, kept, or relied
on, generally or on a case-by-case basis, by any Federal,
State, or local government, college, university, public or
private organization historically, customarily or regularly
engaged in the preparation, retention, analysis, or expert
interpretation of contemporary or historic maps.
(C) Historical or other records of government entities, or
records constructed, obtained or kept by the government in the
ordinary course of business, including, without limitation,
Federal, State, local, and territorial records, such as records
of the United States Departments of the Interior, Agriculture,
or Defense, Bureau of Land Management, Forest Service, Natural
Resources Conservation Service, Soil Conservation Service,
Government Land office, Federal Centers or Enclaves, the
Smithsonian Institution and Library of Congress.
(2)(A) Historical records, other than those included under
subsection (c)(3), including original documents, authenticated
copies, facsimiles, and computer-transmitted images reliably
showing evidence of construction (including tools used, if
any), location (including dimensions), fixtures and other
structures, or maintenance by a State or local government of
the R.S. 2477 right-of-way under consideration.
(B) Written statements given under oath before a notary
public, court recorder, judge or any other government official
authorized by law to administer oaths, or otherwise
authenticated, reciting reliable knowledge of the facts that
establish the acceptance of the R.S. 2477 right-of-way under
consideration. If this category of evidence is used, written
statements by at least two persons shall be required.
(C) A title opinion prepared by a duly licensed title
examiner prepared in accordance with generally accepted title
standards, establishing title, location and dimensions of the
R.S. 2477 right-of-way under consideration.
(d) Determination of Abandonment.--Not later than 30 days after a
R.S. 2477 right-of-way is conclusively established as accepted pursuant
to this section, the Secretary, Authority, or Authorized Officer shall
determine, in writing, whether that right-of-way has been previously
abandoned by claimant. Failure to make such written determination
within that 30-day period shall conclusively establish the right-of-way
has not been abandoned. That determination by the Secretary, Authority
or Authorized Officer, or the failure to make that determination,
within the time specified by this subsection shall be a final agency
action, subject to appeal as provided and limited by section 5.
(e) Disclaimer and Relinquishment Required.--Subject to subsection
(d), not later than 60 days after the evidence to establish a R.S. 2477
right-of-way has been filed pursuant to this section, the Secretary,
Authority, or Authorized Officer shall deliver or cause to be delivered
to claimant a written document disclaiming and relinquishing the United
States right and interest in the R.S. 2477 right-of-way, which document
and actions under this Act shall only be subject to review as provided
and limited by section, and shall not be subject to quiet title
proceedings under section or otherwise, or subject to any other
judicial or administrative de novo, or on the record, reviews, claims,
actions or proceedings. The disclaimer and relinquishment shall
immediately be recorded in the public land records under the
jurisdiction of the Secretary, and shall conclusively establish the
public right to use the R.S. 2477 right-of-way. The disclaimer and
relinquishment shall be in form to allow recording in State and local
real estate records.
(f) Federal Register Notice of Final Agency Action.--Notice of the
action under subsection (e) shall be published once in the Federal
Register not later than 30 days after the delivery occurs as specified
by that subsection.
(g) Requirement to Timely Record Centerline Survey.--A centerline
survey of the R.S. 2477 right-of-way disclaimed and relinquished by the
United States pursuant to this Act shall be completed and filed by
claimant with the Secretary, Authority, or Authorized Officer not later
than 10 years after the time specified by section 3(a).
(h) Abandonment.--Failure by claimant to complete and file a
centerline survey as required by subsection (g) shall be an abandonment
of any and all rights to the R.S. 2477 right-of-way for which the
relinquishment was issued.
SEC. 5. JUDICIAL REVIEW.
(a) Jurisdiction.--Subject to section 4(e), any case or controversy
arising under this Act shall be filed in the United States District
Court located in the District within which the longest lineal segment
of the claimed R.S. 2477 right-of-way is located, which Federal Court
shall have exclusive jurisdiction to decide the case or controversy on
the record regarding the claimed R.S. 2477 right-of-way, subject only
to appeal or review on the record under Federal appellate court
jurisdiction.
(b) Limitation of Action.--Cases shall be filed in the court
specified by subsection (a) not later than 30 days after the
publication specified by subsection 4(f).
(c) Prior Adjudication Unaffected.--A final settlement, or final
judgment in any court of competent jurisdiction before the effective
date of this Act, where the United States was a party in determining
rights to a R.S. 2477 right-of-way shall not be affected by this Act.
(d) Actions To Quiet Title Unaffected.--Subject to the provisions
of this section and section 4, including the expiration of time periods
specified therein, this Act shall apply to prohibit Federal court
actions to quiet R.S. 2477 titles that involve R.S. 2477 claims
previously filed under this Act, where a disclaimer and relinquishment
are pending or have been issued. Any quiet title action not prohibited
by this paragraph must be filed on or before the date specified by
section 3(a).
SEC. 6. APPLICABLE LAW AND TIME EXTENSIONS.
(a) Application of State and Federal Law.--This Act shall apply to
conclusively establish the acceptance, scope, validity, or abandonment
of a R.S. 2477 right-of-way. From and after the date of enactment, the
provisions of this Act will be supreme, preempt and control any
inconsistency or conflict between provisions of this Act and State law
in determining the acceptance, scope, validity and abandonment of a
R.S. 2477 right-of-way.
(b) Deadlines.--Any deadline established by this Act shall be
extended one time, for a maximum of 365 days, for good cause stated in
writing signed by claimant under oath or affirmation and delivered to
the Secretary, Authority or Authorized Officer not less than 30 days
before the deadline to be continued.
SEC. 7. IMPLEMENTATION REQUIRED.
Subject to section 2(d), not later than 90 days after the effective
date of this Act, the Secretary, Authority and Authorized Officer shall
have completed all policies, procedures, delegations, forms and any
other action necessary to implement the provisions of this Act and
begin processing claims immediately thereafter. The duties and
obligations of, or failure to perform by, the Secretary, Authority, and
Authorized Officer within the scope of this section, are enforceable by
injunction, restraining order and may result in official and personal
civil liability all pursuant to action in any Federal District Court.
SEC. 8. FEDERAL LAND POLICY AND MANAGEMENT ACT OF 1976 AND ALASKA
NATIONAL INTEREST LANDS CONSERVATION ACT.
Nothing in this Act is intended, or shall be construed, to affect,
change, alter, or modify title V of FLPMA or title XI of the Alaska
National Interest Lands Conservation Act (16 U.S.C. 3161 et seq.).
SEC. 9. RULES AND REGULATIONS.
Any final rule or regulation of any agency of the Federal
Government pertaining to the recognition, management, or validity of a
rights-of-way pursuant to R.S. 2477 may take effect without further
express authorization by an Act of Congress subsequent to the date of
enactment of this Act.
SEC. 10. EXEMPTION FOR CERTAIN LANDS.
Nothing in this Act shall apply to or effect use of land by the
Department of Defense or lands the use of which is shared with the
Department of Defense.
SEC. 11. REPEAL OF RESTRICTIONS ON REGULATIONS.
Section 108 of the Omnibus Consolidated Appropriations Act, 1997
(110 Stat. 3009-200), related to Revised Statute 2477, is hereby
repealed.
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