[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Statutes, which was repealed by the Federal Land Policy and Management 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Statutes, which was repealed by the Federal Land Policy and Management 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        Act of 1976 repealed R.S. 2477, but did not terminate valid 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>