[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 3334 Introduced in Senate (IS)]

<DOC>






114th CONGRESS
  2d Session
                                S. 3334

To establish a procedure for resolving claims to certain rights-of-way.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 15, 2016

  Mr. Flake (for himself, Mr. McCain, and Mr. Heller) introduced the 
 following bill; which was read twice and referred to the Committee on 
                      Energy and 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.

    This Act may be cited as the ``Historic Routes Preservation Act''.

SEC. 2. PURPOSE.

    The purpose of this Act is to achieve judicial and administrative 
efficiency for, and to reduce the costs typically associated with, 
resolving right-of-way claims under R.S. 2477 by--
            (1) reducing the burden on Federal courts by establishing 
        administrative procedures and evidentiary standards for the 
        processing of R.S. 2477 right-of-way claims; and
            (2) establishing--
                    (A) a deadline for filing R.S. 2477 right-of-way 
                claims;
                    (B) mandatory procedures for considering and acting 
                on the R.S. 2477 right-of-way claims; and
                    (C) uniform legal and evidentiary standards of 
                proof of public acceptance of R.S. 2477 right-of-way 
                claims.

SEC. 3. DEFINITIONS.

    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 a R.S. 2477 right-of-
        way is relinquished.
            (2) Acceptance or accepted.--The terms ``acceptance'' and 
        ``accepted'' mean--
                    (A) a positive or affirmative action by a State or 
                county governmental authority on or before October 21, 
                1976, including--
                            (i) a formal resolution or declaration of 
                        ownership; or
                            (ii) the inclusion of a highway in an 
                        official road map;
                    (B) the construction, improvement, or maintenance 
                of a highway by a State or county governmental 
                authority on or before October 21, 1976; or
                    (C) the continuous use of a highway by the public 
                for a period of not fewer than 5 consecutive years 
                ending on a date that is on or before October 21, 1976.
            (3) Claim.--The term ``claim'' means the assertion of 
        public acceptance of a R.S. 2477 right-of-way filed under 
        section 4(a).
            (4) Claimant.--The term ``claimant'' means any State, 
        county, political subdivision or agency of a State, company, or 
        other person asserting the public acceptance of a right-of-way 
        under R.S. 2477.
            (5) 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, which may be 
        established by the use of any tools or equipment, or other 
        means, including mere usage.
            (6) Continuous public use.--The term ``continuous public 
        use'' means the uninterrupted use of a highway by the public 
        for passage as often as generally regarded by the public to be 
        convenient or necessary depending on the character of the land 
        and the nature of the use.
            (7) Disclaimer and relinquishment.--The term ``disclaimer 
        and relinquishment'' means any type of deed or equivalent 
        document in a form suitable for recordation that is approved 
        and issued by the Secretary disclaiming and relinquishing the 
        interest of the Federal Government in a R.S. 2477 right-of-way.
            (8) Evidence.--The term ``evidence'' means any testimony, 
        object, or document described in section 5 that would be 
        reliable, authentic, probative, and persuasive in Federal 
        district court under the Federal Rules of Evidence that are in 
        effect on the date of enactment of this Act.
            (9) 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, or 
        non-motorized or motorized vehicle.
            (10) Improvement.--The term ``improvement'' means--
                    (A) the widening of a highway;
                    (B) the horizontal or vertical realignment of a 
                highway;
                    (C) the installation (as distinguished from 
                cleaning, repair, or replacement in kind) of a bridge, 
                culvert, or other drainage structure or conduit; or
                    (D) any significant change in the surface 
                composition of a highway.
            (11) Maintenance.--The term ``maintenance'' means the 
        preservation of an existing highway, including--
                    (A) the physical upkeep of the highway;
                    (B) the repair of wear or damage to the highway 
                from natural or other causes;
                    (C) the restoration of the shape of the highway; 
                and
                    (D) the gradation of the highway or other measures 
                to ensure that the shape of the highway permits 
                drainage.
            (12) Public land.--The term ``public land'' means land--
                    (A) that is owned, controlled by, or subject to the 
                jurisdiction of the Federal Government for the benefit 
                of the public; and
                    (B) that was not reserved on the date on which a 
                R.S. 2477 right-of-way grant was accepted.
            (13) Public or public user.--
                    (A) In general.--The terms ``public'' or ``public 
                user'' mean all natural persons, including Federal 
                lessees, permitees, licensees, invitees, and any other 
                natural person that holds an authorization to enter or 
                use public land.
                    (B) Exceptions.--The terms ``public'' or ``public 
                user'' do not include any Federal agent or employee 
                acting within the scope of the employment of the 
                Federal agency or employee.
            (14) R.S. 2477.--The term ``R.S. 2477'' means section 2477 
        of the Revised Statutes (43 U.S.C. 932) repealed by section 706 
        of the Federal Land Policy and Management Act of 1976 (Public 
        Law 94-579; 90 Stat. 2793).
            (15) R.S. 2477 right-of-way.--The term ``R.S. 2477 right-
        of-way'' 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.
            (16) Reserved.--
                    (A) In general.--The term ``reserved'' means action 
                by the Secretary, before the earlier of a R.S. 2477 
                right-of-way acceptance or October 21, 1976--
                            (i) to withdraw land from the public 
                        domain;
                            (ii) to make the land unavailable for 
                        appropriation under public land laws; and
                            (iii) to dedicate the land by the United 
                        States to a specific public purpose, such as a 
                        park, military establishment, wilderness area, 
                        tribal land, or Federal enclave, that does not 
                        rely on a R.S. 2477 right-of-way for the public 
                        purpose.
                    (B) Exclusion.--The term ``reserved'' does not 
                apply to an action of the Secretary with respect to the 
                designation of a wilderness study area, an area of 
                critical environmental concern, or land with wilderness 
                characteristics.
            (17) Scope.--The term ``scope'' means the established width 
        of a R.S. 2477 right-of-way as of the date of acceptance, 
        including the area needed to meet the public convenience or 
        safety or the exigencies of increased travel based on the 
        traditional use of a highway (including permissible 
        improvements, realignments, or relocation), and is not limited 
        to the disturbed surface of the highway.
            (18) Secretary.--The term ``Secretary'' means the Secretary 
        with management jurisdiction over land owned or controlled by 
        the United States on which a R.S. 2477 right-of-way is claimed 
        to be located.

SEC. 4. FILING OF CLAIM.

    (a) In General.--During the 25-year period beginning on the date of 
enactment of this Act, a claimant asserting the public acceptance of a 
right-of-way granted under R.S. 2477 may file a claim under this 
section.
    (b) Form; Contents.--
            (1) Form.--Not later than 30 days after the date of 
        enactment of this Act, the Secretary shall establish a form to 
        be used by claimants for filing claims under this section.
            (2) Contents.--A claim filed under subsection (a) shall 
        include--
                    (A) evidence supporting the claim; and
                    (B) proof of notice or attempted notice by the 
                claimant under subsection (d).
    (c) Place of Filing.--A claimant shall file a claim in the 
appropriate State or regional location designated by the Secretary for 
the filing of claims under this section.
    (d) Notice.--
            (1) In general.--A claimant shall provide notice of the 
        right-of-way claim by--
                    (A) at least once per week during the 2-week period 
                immediately preceding the filing of the claim, 
                publishing in a newspaper authorized to publish public 
                notice under the laws of the State in which the longest 
                lineal part of the claimed R.S. 2477 right-of-way is 
                located, a general summary of the claim, including the 
                location and general description of the claimed R.S. 
                2477 right-of-way; and
                    (B) not later than 30 days after the date on which 
                the claim is filed, providing, or reasonably attempting 
                to provide, written notice of the claim to all owners 
                of land contiguous to the boundary of the claimed 
                right-of-way.
            (2) Attempted notice.--The reasonable attempt of a claimant 
        to provide written notice under paragraph (1)(B) shall be 
        considered to be sufficient notice under this subsection if the 
        claimant files with Secretary verification of the reasonable 
        attempt under written oath or affirmation.
    (e) Effect of Failure To Meet Filing Deadline or Requirements.--If 
a claimant fails to comply with the requirements of--
            (1) subsection (a), the failure shall be considered to be 
        an automatic irrevocable abandonment of any R.S. 2477 right-of-
        way claim; or
            (2) subsection (b), (c), or (d), the claim filed by the 
        claimant shall not be processed until the date on which the 
        failure to comply with those subsections is cured.
    (f) Statue of Limitations.--Except as provided in subsection (a), 
any statute of limitations for documenting the R.S. 2477 right-of-way 
is waived.

SEC. 5. EVIDENCE AND FINAL DECISION.

    (a) Burden of Proof.--A claimant shall have the burden to prove by 
a preponderance of the evidence the acceptance of a right-of-way under 
R.S. 2477.
    (b) Presumptions.--
            (1) In general.--Except in a case in which the land 
        underlying the claimed R.S. 2477 right-of-way was reserved 
        before the earlier of construction of a highway 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 on filing, under oath or affirmation by a claimant 
        attesting to the authenticity and accuracy, of--
                    (A) at least 2 types of evidence from among the 
                category of evidence described in subsection (c)(1) 
                relating to the R.S. 2477 right-of-way; or
                    (B) all 3 types of evidence described in 
                subparagraphs (A) through (C) of subsection (c)(2), in 
                the case of demonstrating scope and acceptance before 
                October 21, 1976.
            (2) Copies.--A copy of an original document may be used as 
        evidence in the place of the original document under this 
        section if the copy is accompanied by a written declaration, 
        under oath by a custodian, owner, or author, that the copy is 
        an accurate representation of the material terms of the 
        original document.
            (3) Hearsay.--Hearsay contained in a document or otherwise 
        provided shall be considered reliable, admissible, and 
        probative for the purposes of this Act.
            (4) Grant withdrawal.--Evidence produced by the United 
        States that establishes that the United States reserved the 
        land underlying the R.S. 2477 right-of-way before acceptance 
        conclusively establishes withdrawal of the Federal grant for 
        the R.S. 2477 right-of-way.
    (c) Description of Categories of Evidence.--For the purposes of 
actions under this Act, there are 2 categories of evidence that shall 
be considered:
            (1) Category 1.--Category 1 evidence consists of each of 
        the following types of evidence:
                    (A) A center line or other survey conducted by the 
                Federal Government or duly licensed land surveyor, 
                applying generally accepted survey standards and 
                procedures or the 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 date certain.
                    (B) Maps, plats, maintenance records (including 
                actual or estimated costs of maintenance), 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 the 
                Federal Government, a State or local government, an 
                institution of higher education, college, or a 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 a 
                government in the ordinary course of business, 
                including Federal, State, local, and territorial 
                records, such as records of the Departments of the 
                Interior, Agriculture, or Defense, the Bureau of Land 
                Management, the Forest Service, the Natural Resources 
                Conservation Service, the Soil Conservation Service, 
                General Land Office, Federal centers or enclaves, the 
                Smithsonian Institution, and the Library of Congress.
            (2) Category 2.--Category 2 evidence consists of each of 
        the following types of evidence:
                    (A) Historical records (other than the records 
                included under paragraph (1)(C)), 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.
                    (B) Written statements from at least 2 persons, 
                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.
                    (C) A title opinion prepared by a duly licensed 
                title examiner prepared in accordance with generally 
                accepted title standards, establishing the title, 
                location, and dimensions of the R.S. 2477 right-of-way.
    (d) Determination of Abandonment.--
            (1) In general.--Not later than 90 days after the date on 
        which a R.S. 2477 right-of-way is conclusively established as 
        accepted under subsection (b)(1), the Secretary shall 
        determine, in writing, whether the R.S. 2477 right-of-way has 
        been previously abandoned by the claimant.
            (2) Failure to make determination.--The failure of the 
        Secretary to make a written determination within the 90-day 
        period described in paragraph (1) shall conclusively establish 
        that the right-of-way has not been abandoned.
            (3) Final agency action.--The determination by the 
        Secretary under paragraph (1), or the failure to make the 
        determination by the date described in that paragraph, shall be 
        a final agency action, subject to appeal, in accordance with 
        section 6.
    (e) Disclaimer and Relinquishment Required.--
            (1) In general.--Subject to subsection (d), not later than 
        120 days after the date on which evidence to establish a R.S. 
        2477 right-of-way has been filed under this section, the 
        Secretary shall deliver to the claimant a written document 
        disclaiming and relinquishing the right and interest of the 
        United States in and to the R.S. 2477 right-of-way.
            (2) Form.--The disclaimer and relinquishment under 
        paragraph (1) shall be in a form that allows the recording of 
        the disclaimer and relinquishment in State and local real 
        estate records.
            (3) Recording.--The disclaimer and relinquishment under 
        paragraph (1) shall--
                    (A) be recorded in the public land records under 
                the jurisdiction of the Secretary; and
                    (B) conclusively establish the title of the 
                claimant to use the R.S. 2477 right-of-way.
            (4) Review.--The document delivered by, and any actions of, 
        the Secretary under paragraph (1)--
                    (A) shall only be subject to review as provided in 
                section 6; and
                    (B) shall not be subject to--
                            (i) quiet title proceedings under section 
                        6(d) or any other provision of law; or
                            (ii) any other judicial or administrative 
                        de novo or on the record reviews, claims, 
                        actions, or proceedings.
            (5) Federal register notice of final agency action.--Not 
        later than 30 days after the date on which the document is 
        delivered under paragraph (1), the Secretary shall publish in 
        the Federal Register notice of the action by the Secretary 
        under that paragraph.

SEC. 6. JUDICIAL REVIEW.

    (a) Jurisdiction.--
            (1) Filing.--Subject to section 5(e), any case or 
        controversy arising under this Act shall be filed in the 
        district court of the United States for the judicial district 
        in which the longest lineal segment of the claimed R.S. 2477 
        right-of-way is located.
            (2) Exclusive jurisdiction.--A district court described in 
        paragraph (1) shall have the 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 by a court with appropriate Federal appellate 
        jurisdiction.
    (b) Filing.--Any action initiated under subsection (a) shall be 
filed not later than 30 days after the the date of publication under 
section 5(e)(5).
    (c) Prior Adjudication Not Affected.--Nothing in this Act affects a 
final settlement or final judgment in any court of competent 
jurisdiction before the date of enactment of this Act in which the 
United States was a party in determining rights to a R.S. 2477 right-
of-way.
    (d) Actions to Quiet Title Unaffected.--
            (1) In general.--Subject to this section and section 5, 
        Federal court actions to quiet R.S. 2477 titles that involve 
        R.S. 2477 claims previously filed under this Act in which a 
        disclaimer and relinquishment are pending or have been issued 
        are null and void.
            (2) Allowable actions.--Any quiet title action not 
        prohibited under paragraph (1) shall be filed during or before 
        the date described in section 4(a).

SEC. 7. APPLICABLE LAW AND TIME EXTENSIONS.

    (a) Application of State and Federal Law.--
            (1) In general.--This Act shall apply with respect to 
        conclusively establishing the acceptance, scope, validity, or 
        abandonment of a R.S. 2477 right-of-way.
            (2) Preemption.--In the case of any inconsistency or 
        conflict between the provisions of this Act and State law, this 
        Act shall apply in determining the acceptance, scope, validity, 
        and abandonment of a R.S. 2477 right-of-way.
    (b) Extension.--The Secretary shall grant a one-time extension of a 
deadline established by this Act, for a maximum period of 1 year, for 
good cause, if the claimant submits to the Secretary, not later than 30 
days before the date on which the deadline expires, a written request 
for the extension signed by the claimant under oath or affirmation.

SEC. 8. IMPLEMENTATION REQUIRED.

    (a) In General.--Subject to section 4(e)--
            (1) not later than 90 days after the date of enactment of 
        this Act, the Secretary shall complete all policies, 
        procedures, delegations, forms, and any other action necessary 
        to implement this Act; and
            (2) on the completion of the actions described in paragraph 
        (1), begin processing claims under this Act.
    (b) Injunction; Liability.--The duties and obligations of, or 
failure to perform by, the Secretary under this section--
            (1) are enforceable by injunction or restraining order; and
            (2) may result in official and personal civil liability.

SEC. 9. EFFECT; APPLICABILITY.

    (a) Effect on Other Laws.--Nothing in this Act affects or 
modifies--
            (1) title V of the Federal Land Policy and Management Act 
        of 1976 (43 U.S.C. 1761 et seq.); or
            (2) title XI of the Alaska National Interest Lands 
        Conservation Act (16 U.S.C. 3161 et seq.).
    (b) Excluded Land.--Nothing in this Act applies to or affects--
            (1) the use of Department of Defense land or land with 
        respect to which the Department of Defense shares control or 
        jurisdiction;
            (2) land that is not owned by the United States; or
            (3) land within the outer boundary of--
                    (A) a unit of the National Park System; or
                    (B) a component of the National Wilderness 
                Preservation System.

SEC. 10. REPEAL OF RESTRICTIONS ON REGULATIONS.

    Section 108 of the Department of the Interior and Related Agencies 
Appropriations Act, 1997 (Public Law 104-208; 110 Stat. 3009-200) is 
repealed.
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