[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 308 Introduced in House (IH)]







110th CONGRESS
  1st Session
                                H. R. 308

 To clarify congressional intent with respect to the nature of rights-
 of-way granted and accepted under former section 2477 of the Revised 
                   Statutes, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 5, 2007

  Mr. Pearce introduced the following bill; which was referred to the 
                     Committee on Natural Resources

_______________________________________________________________________

                                 A BILL


 
 To clarify congressional intent with respect to the nature of rights-
 of-way granted and accepted under former section 2477 of the Revised 
                   Statutes, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE, FINDINGS, PURPOSES.

    (a) Short Title.--This Act may be cited as the ``R.S. 2477 Rights-
Of-Way Recognition Act''.
    (b) Findings.--Congress finds the following:
            (1) Prior to its repeal by section 706 of the Federal Land 
        Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.), 
        section 2477 of the Revised Statutes of the United States (43 
        U.S.C. 932) provided a perpetual grant of a ``right of way for 
        the construction of highways over public lands, not reserved 
        for public uses''.
            (2) The Federal Land Policy and Management Act of 1976 
        protects R.S. 2477 rights-of-way in existence on October 21, 
        1976, the date on which R.S. 2477 was repealed.
            (3) The R.S. 2477 grant was accepted by establishing a 
        public highway in any manner recognized under State law.
            (4) State law, rather than Federal agency rules or 
        regulations, controls how a highway is established for purposes 
        of R.S. 2477 rights-of-way.
            (5) Coal and other mineral withdrawal lands are ``public 
        lands, not reserved for public uses'' for purposes of R.S. 2477 
        rights-of-way.
            (6) Federal agencies may not issue rules or regulations, or 
        adjudicate controversies, relating to R.S. 2477 rights-of-way.
            (7) State and local governments should consult with Federal 
        agencies before beginning road improvement projects, but no 
        such consultation is required for routine maintenance projects, 
        and any disagreement arising from any such consultation should 
        be resolved by courts of law rather than by Federal agencies.
            (8) Congress should acknowledge R.S. 2477 rights-of-way for 
        routes shown in 1976-86 era official governmental maps.
    (c) Purposes.--The purposes of this Act are--
            (1) to clarify congressional intent with respect to the 
        nature of R.S. 2477 rights-of-way in a manner consistent with 
        the findings set forth in subsection (b);
            (2) to establish protocols for appropriate Federal agencies 
        with respect to maintenance, repairs, and improvements of R.S. 
        2477 highways; and
            (3) to acknowledge, recognize, and disclaim all right, 
        title, and interest in and to R.S. 2477 rights-of-way for 
        roads, streets, highways, and trails across Federal land, not 
        reserved for public uses, as recorded in timely official 
        governmental maps and supplemented where appropriate by 
        official governmental aerial photographs.

SEC. 2. DEFINITIONS.

    In this Act, the following definitions apply:
            (1) The term ``R.S. 2477'' means section 2477 of the 
        Revised Statutes (43 U.S.C. 932).
            (2) The term ``highway'' means any route over which the 
        general public has a right of passage and includes any kind of 
        route used for public travel, such as a road for motorized 
        vehicles, carriage way, navigable river, trail, or footpath.
            (3) The term ``R.S. 2477 highway'' means a highway for 
        which an R.S. 2477 right-of-way exists.
            (4) The term ``R.S. 2477 right-of-way'' means a right-of-
        way for a highway over Federal lands, not reserved for public 
        uses, established by acts on the ground sufficient under 
        applicable State law to establish a highway and thus accept the 
        R.S. 2477 right-of-way grant.
            (5) The term ``applicable State law'' means the common and 
        statutory laws of the State or territory in which a purported 
        R.S. 2477 highway or segment thereof is located.
            (6) The term ``public lands'' means all public domain lands 
        that have been owned by the United States.
            (7) The term ``public lands, not reserved for public uses'' 
        means--
                    (A) any public lands currently under the ownership 
                of the United States other than tribal lands, national 
                forest reserves, national parks, national recreation 
                areas, national monuments, congressional wilderness, 
                national wild and scenic river system lands, 
                congressionally designated wildlife refuge areas, and 
                congressionally designated wilderness study areas; and
                    (B) any public lands ever owned by the United 
                States before the land was disposed of or before the 
                land became tribal lands, national forest reserves, 
                national parks, national recreation areas, national 
                monuments, congressional wilderness, national wild and 
                scenic river system lands, congressionally designated 
                wildlife refuge areas, and congressionally designated 
                wilderness study areas.
            (8) The term ``appropriate Federal agency'' means the 
        Federal land management agency with primary responsibility to 
        manage and administer the public land over which a purported 
        R.S. 2477 highway or segment thereof is located.
            (9) The term ``official governmental aerial photograph'' 
        means any air-to-ground photographic image or copy thereof, 
        created by or for, or maintained as part of the records of, any 
        department, division, service, office, bureau, or other agency 
        of the Federal government or of any State, county, municipal, 
        or other local government.
            (10) The term ``official governmental map'' means any 
        highway map, tourist map, topographical map, plat map, 
        quadrangle, survey map, transportation map, land use map, 
        general land office map, township or grid map or any other map 
        issued by or for, or maintained as part of the records of, any 
        department, division, service, office, or other agency of the 
        Federal government or of any State, county, municipal, or other 
        local government.

SEC. 3. CLARIFICATION OF CONGRESSIONAL INTENT WITH RESPECT TO THE 
              NATURE OF R.S. 2477 RIGHTS-OF-WAY.

    Congress makes the following clarifications:
            (1) Prior to its repeal on October 21, 1976, R.S. 2477 
        constituted an unequivocal grant of free rights-of-way over 
        public lands not reserved for public uses.
            (2) Legal title to an R.S. 2477 right-of-way could pass to 
        a State or local government without Federal land management 
        agency knowledge, involvement, action, or approval of any kind.
            (3) At the time R.S. 2477 was enacted, Congress 
        incorporated applicable State law regarding the establishment 
        of highways, and applicable State laws established the terms of 
        acceptance for R.S. 2477 rights-of-way grants.
            (4) Acts on the part of the public, at any time prior to 
        October 21, 1976, or the date on which the subject land may 
        have been reserved for public uses, whichever date is earlier, 
        that were sufficient to create a public highway under 
        applicable State law caused legal title to an R.S. 2477 right-
        of-way to pass to the respective State and county in which such 
        highway was located.
            (5) The applicable laws of each State govern the resolution 
        of issues relating to the validity and scope of R.S. 2477 
        rights-of-way, including--
                    (A) what constitutes a highway and its essential 
                characteristics;
                    (B) what actions are required to establish a public 
                highway;
                    (C) the length of time of public use, if any, 
                necessary to establish a public highway and resulting 
                R.S. 2477 right-of-way;
                    (D) the necessity of mechanical construction to 
                establish a pubic highway and resulting R.S. 2477 
                right-of-way; and
                    (E) the sufficiency of public construction alone 
                without proof of a certain number of years of 
                continuous public use to establish a public highway and 
                resulting R.S. 2477 right-of-way.
            (6) R.S. 2477 applied retroactively to validate rights-of-
        way established prior to the enactment of the statute in 1866.
            (7) A highway initially constructed by the Federal 
        Government became an R.S. 2477 right-of-way upon the occurrence 
        of acts on the part of the public, at any time prior to October 
        21, 1976, or the date on which the subject land may have been 
        reserved for public uses, whichever date is earlier, that were 
        sufficient to create a public highway under applicable State 
        law.
            (8) At the time R.S. 2477 was enacted, Congress 
        incorporated the common law regarding what constitutes a public 
        highway and its essential characteristics.
            (9) The common law concept of a highway recognizes that any 
        route over which the general public has a right of passage, 
        such as a carriage way, navigable river, or footpath, is a 
        ``highway''.
            (10) Unless specifically provided otherwise by applicable 
        State law, a road need not be mechanically constructed in order 
        to establish acceptance of an R.S. 2477 right-of-way grant.
            (11) For purposes of establishing an R.S. 2477 right-of-
        way, the term ``construction'' means any one of the ways 
        authorized by the laws of the State in which the subject land 
        is located, including--
                    (A) the minimum construction necessary to enable 
                the intended public use of the route, such as the 
                moving of boulders, clearing of underbrush and trees, 
                or digging of occasional crude dugways;
                    (B) actions to build, erect, form, or create the 
                route; and
                    (C) the forming of the route by repeated use and 
                traffic, without a mechanical means of construction.
            (12) For purposes of establishing an R.S. 2477 right-of-
        way, applicable State law shall determine whether proof of 
        construction alone is sufficient without proof of continuous 
        public use. Nothing in R.S. 2477 is intended to, or shall be 
        construed to, prohibit the establishment of an R.S. 2477 right-
        of-way under State law upon mere proof of construction without 
        proof of continuous public use.
            (13) For purposes of establishing an R.S. 2477 right-of-
        way, the nature, extent, and degree of continuous public use 
        necessary to satisfy any State-law public continuous use 
        requirements, and the nature, extent, and degree of 
        ``construction'' activities necessary to satisfy any State-law 
        construction requirements, are questions to be determined under 
        applicable State law.
            (14) Unless applicable State law provides to the contrary, 
        nothing in R.S. 2477 is intended to, or shall be construed to, 
        require that roads lead to a definite destination or terminus 
        in order to qualify as a ``highway'' for purposes of an R.S. 
        2477 right-of-way grant.
            (15) For purposes of R.S. 2477, the term ``public lands, 
        not reserved for public uses'' includes--
                    (A) land subject to the Act entitled ``An Act for 
                the protection of surface rights of entrymen'', 
                approved March 3, 1909 (Chapter 270, 35 Stat. 844; 30 
                U.S.C. 81);
                    (B) land subject to the Act entitled ``An Act to 
                provide for agricultural entries on coal lands'', 
                approved June 22, 1910 (Chapter 318, 36 Stat. 583; 30 
                U.S.C. 83 et seq.);
                    (C) land subject to the Act of June 25, 1910, 
                commonly known as the Pickett Act (Chapter 421, 36 
                Stat. 847; 43 U.S.C. 141 et seq.);
                    (D) land subject to any coal withdrawal made 
                pursuant to the congressional Acts described in 
                subparagraphs (A), (B), and (C);
                    (E) land withdrawn under Executive Order 6910, 
                issued November 26, 1934; and
                    (F) any other land ``withdrawn'' but not 
                ``reserved'', and land ``reserved'' but not ``reserved 
                for public uses''.
            (16) Any executive branch administrative rule or regulation 
        pertaining to the recognition, management, validity, or scope 
        of an R.S. 2477 right-of-way is prohibited.
            (17) Congress has not delegated to any Federal land 
        management agency, or to any other agency in the executive 
        branch, primary jurisdiction or other authority to adjudicate, 
        formally or informally, any claims, disputes, cases, or 
        controversies regarding the validity or scope of R.S. 2477 
        rights-of-way. Such claims, disputes, cases, and controversies 
        shall be adjudicated only through the courts.
            (18) Nothing in this Act is intended nor shall be construed 
        to prohibit a Federal land management agency from making non-
        binding determinations of validity and scope of R.S. 2477 
        rights-of-way, if such determinations are made solely--
                    (A) for the agency's own internal purposes without 
                any intent to be binding or final agency actions; and
                    (B) for limited purposes such as internal planning 
                decisions regarding land use, or in determining the 
                agency's position in court litigation.
            (19) Any such Federal land management agency determination 
        shall not be--
                    (A) subject to the requirements of the National 
                Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
                seq.);
                    (B) construed to be a binding agency determination; 
                or
                    (C) given any deference or respect in court 
                proceedings to adjudicate issues of validity or scope 
                of R.S. 2477 rights-of-way, other than deference to the 
                persuasiveness of that determination.

SEC. 4. PROTOCOLS WITH RESPECT TO MAINTENANCE, REPAIRS, AND 
              IMPROVEMENTS OF R.S. 2477 HIGHWAYS.

    The following protocols apply with respect to maintenance, repairs, 
and improvements of R.S. 2477 highways:
            (1) Federal agencies shall not require State or local 
        governments to consult with or obtain permission from any 
        Federal land management agency prior to performing routine 
        maintenance and repair on R.S. 2477 rights-of-way routes, as 
        long as State and local governments act within the scope of the 
        right-of-way and such maintenance and repair preserves the 
        existing condition of the route. For purposes of this 
        paragraph, ``routine repair and maintenance'' includes 
        preservation of an existing road, physical upkeep, repair of 
        wear or damage from natural or other causes, maintenance of the 
        shape of the road, grading or blading to preserve the character 
        of the road in accordance with prior practice, maintenance to 
        ensure proper drainage, and any other activities necessary to 
        preserve the status quo.
            (2) Subject to the consultation requirements specified in 
        paragraph (3), Federal land management agencies shall permit 
        improvements by a State or local government to an R.S. 2477 
        right-of-way route, beyond routine maintenance and repair, if 
        such improvements are reasonable and necessary for the type of 
        use to which the route was put prior to October 21, 1976, or 
        the date on which the subject land may have been reserved for 
        public uses, whichever date is earlier. Federal agencies shall 
        not require State and local governments to maintain an R.S. 
        2477 right-of-way route in precisely the same condition it was 
        on October 21, 1976, or the date on which the subject land may 
        have been reserved for public uses, whichever date is earlier, 
        but shall permit those improvements which are reasonably 
        necessary to meet the exigencies of increased travel so long as 
        they are done in light of traditional uses to which the right 
        of way was put as of October 21, 1976, or the date on which the 
        subject land may have been reserved for public uses, whichever 
        date is earlier, as determined pursuant to State law.
            (3)(A) For proposed improvements to an R.S. 2477 right-of-
        way route that go beyond routine maintenance and repair, the 
        appropriate Federal agency shall require State and local 
        governments to consult with the agency before allowing such 
        improvement projects to proceed. Examples of improvement 
        projects that go beyond routine maintenance and repair are the 
        following: widening of a road; horizontal or vertical 
        realignment; installation of bridges, culverts, and other 
        drainage structures; significant change in surface composition; 
        and grading or blading for the first time. The appropriate 
        Federal agency shall require State and local governments to 
        advise the agency of the proposed improvement sufficiently in 
        advance of the proposed improvement project to afford the 
        Federal agency a fair opportunity to perform its duties, 
        including the following:
                    (i) To determine whether the proposed improvement 
                is fair and reasonable in light of the traditional uses 
                of the right-of-way as of October 21, 1976, or the date 
                on which the subject land may have been reserved for 
                public uses, whichever date is earlier.
                    (ii) To study potential effects and determine if 
                the proposed action would impair or degrade the 
                surrounding lands.
                    (iii) To determine whether modifications in the 
                proposed improvement plans should be made to protect 
                the surrounding lands and propose those modifications, 
                if appropriate.
                    (iv) To perform the duties described in this 
                subparagraph in a timely and expeditious manner, and 
                refrain from using agency authority, either by delay or 
                unreasonable disapproval, to impair the rights of the 
                R.S. 2477 right-of-way holder.
            (B) In the event of a disagreement over the proposed 
        improvement project after the consultation process described in 
        subparagraph (A), the appropriate Federal agency shall resort 
        to the courts for resolution of the disagreement before 
        allowing the State or local government to proceed with the 
        project. The decision of the court shall govern whether and on 
        what terms the improvement project may proceed.
            (C) No Federal agency action carried out while performing 
        the duties set forth in subparagraph (A) constitutes a binding 
        agency determination deserving of any deference or respect in 
        court proceedings to adjudicate issues of validity or scope of 
        an R.S. 2477 right-of-way, other than deference to the 
        persuasiveness of that determination.
            (D) For all proposed improvement projects within the scope 
        of an R.S. 2477 right-of-way, as understood on October 21, 
        1976, or the date on which the subject land may have been 
        reserved for public uses, whichever such date is earlier, and 
        as determined under applicable State law, Federal agency action 
        carried out while performing the duties set forth in 
        subparagraph (A) shall not be subject to the requirements of 
        the National Environmental Policy Act of 1969 (42 U.S.C. 4321 
        et seq.).

SEC. 5. ACKNOWLEDGMENT AND RECOGNITION OF VALIDITY OF CERTAIN R.S. 2477 
              RIGHTS-OF-WAY RECORDED IN OFFICIAL GOVERNMENTAL MAPS AND 
              AERIAL PHOTOGRAPHS, AND DISCLAIMER OF ALL RIGHT, TITLE, 
              AND INTEREST WITH RESPECT THERETO.

    Without limiting the ability of States and counties to assert, 
claim, and pursue legal recourse with respect to other possible R.S. 
2477 public rights-of-way claims as provided by law, Congress hereby 
acknowledges, confirms, recognizes, and forever disclaims, in favor of 
the respective State and county of location, as joint tenants, the 
following as having heretofore validly vested under R.S. 2477:
            (1) Pre-october 21, 1976, governmental transportation 
        maps.--A public right-of-way over Federal land (or any Federal-
        land portion of a public right-of-way over both Federal and 
        non-Federal land) for each and every highway shown on any 
        official governmental map that was published on or before 
        October 21, 1976, excepting those portions that run over 
        Federal land already reserved for public uses before the date 
        on which the relevant governmental map issued. For purposes of 
        R.S. 2477 and this paragraph, lands subject to withdrawal under 
        the Acts described in sections 3(15)(A), 3(15)(B), and 
        3(15)(C), or subject to any other subsurface mineral and energy 
        withdrawal, do not constitute ``Federal land already reserved 
        for public uses''.
            (2) Official governmental maps published between october 
        21, 1976, and october 21, 1986.--A public right-of-way over 
        Federal land (or any Federal-land portion of a public right-of-
        way that crosses over both Federal and non-Federal land) for 
        each and every highway shown on any official governmental map 
        that was published between October 21, 1976, and October 21, 
        1986, excepting those portions that run over Federal land 
        already reserved for public uses before the date on which the 
        relevant government map issued; Provided, that the given road, 
        street, highway, or trail also appears in an official 
        governmental aerial photograph taken on or before October 21, 
        1976, or the date on which the subject land may have been 
        reserved for public uses, whichever date is earlier, in which 
        case the form, location, and scope of the right-of-way 
        illustrated in the aerial photograph shall control the extent 
        of the right-of-way acknowledged, confirmed, recognized, and 
        disclaimed herein. For purposes of R.S. 2477 and this 
        paragraph, lands subject to withdrawal under the Acts described 
        in sections 3(15)(A), 3(15)(B), and 3(15)(C), or subject to any 
        other subsurface mineral and energy withdrawal, do not 
        constitute ``Federal land already reserved for public uses''.

SEC. 6. RELATIONSHIP TO THE FEDERAL LAND POLICY AND MANAGEMENT ACT OF 
              1976 AND THE ALASKA NATIONAL INTEREST LANDS CONSERVATION 
              ACT.

    Nothing in this Act is intended to, or shall be construed 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>