[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1976, the date on which R.S. 2477 was repealed.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.).
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