[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8798 Introduced in House (IH)]

<DOC>






116th CONGRESS
  2d Session
                                H. R. 8798

To establish a procedure for resolving claims to certain rights-of-way, 
                        and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           November 20, 2020

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

_______________________________________________________________________

                                 A BILL


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

    (a) Short Title.--This Act may be cited as the ``Historic Routes 
Preservation Act''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title.
Sec. 2. Purpose.
Sec. 3. Definitions.
Sec. 4. Filing of claim.
Sec. 5. Evidence and final decision.
Sec. 6. Judicial review.
Sec. 7. Applicable law and time extensions.
Sec. 8. Implementation required.
Sec. 9. Effect; applicability.
Sec. 10. Repeal of restrictions on regulations.

SEC. 2. PURPOSE.

    The purpose of this Act is to preserve historical access to the 
public lands by achieving 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 authorizing 
        administrative procedures and establishing evidentiary 
        standards for the processing of R.S. 2477 right-of-way claims;
            (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 Federal R.S. 2477 right-
                of-way grants;
            (3) recognizing and protecting valid existing rights; and
            (4) requiring that any actions by a successful claimant 
        improving, upgrading or expanding an R.S. 2477 right-of-way are 
        conditioned upon consultation with the Secretary.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Abandon or abandonment.--The terms ``abandon'' and 
        ``abandonment'' mean formal action by the governing body of a 
        claimant taken at a public meeting pursuant to notice that 
        declares all of claimant's right, title, and claim to a R.S. 
        2477 right-of-way is relinquished.
            (2) Acceptance or accepted.--The terms ``acceptance'' and 
        ``accepted'' mean acts on the part of a claimant sufficient to 
        manifest an intent to accept the open congressional offer under 
        R.S. 2477 right-of-way, including--
                    (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 of, or responsibility for 
                        maintaining, a highway; or
                            (ii) the inclusion of a highway in an 
                        official map that reflects such ownership or 
                        maintenance responsibility;
                    (B) the construction, improvement, repair or 
                maintenance of a highway by a State or county 
                governmental authority, or private party 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 title 
        to an R.S. 2477 right-of-way filed under section 4(a)(1).
            (4) Claimant.--The term ``claimant'' means any State, 
        county, political subdivision or agency of a State, corporation 
        or other person asserting title to a right-of-way under R.S. 
        2477.
            (5) Construction.--The term ``construction'' means the 
        physical activity reasonably necessary, advisable, or desirable 
        to allow safe, 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 road 
        and the nature of the use and does not require a determination 
        of frequency of use. Continuous public use includes use that 
        may be interrupted by events of nature or seasonal 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 or relinquishing any 
        ownership interest of the Federal Government in an R.S. 2477 
        right-of-way, including a deed or equivalent document issued 
        under section 315 of the Federal Land Policy and Management Act 
        of 1976 (43 U.S.C. 1745), or section (e) of the Federal Quiet 
        Title Act (28 U.S.C. 2409a). A disclaimer issued by the 
        Secretary is valid without judicial adjudication.
            (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 the enactment of this Act.
            (9) Highway.--The term ``highway'' means any road, way, 
        right-of-way, or other land surface route of travel over which 
        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'' is 
        distinguished from ordinary maintenance and repair and 
        includes--
                    (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 upgrade in the surface composition of a 
                highway.
            (11) Maintenance.--The term ``maintenance'' means the 
        preservation of an existing highway, including but not limited 
        to--
                    (A) the physical upkeep of the highway;
                    (B) the repair or replacement of wear or damage to 
                the highway, including to bridges, culverts, or other 
                drainage structures or conduits, from natural or other 
                causes;
                    (C) the restoration of the shape or path of the 
                highway; and
                    (D) the gradation of the highway or other measures 
                to ensure that the shape of the highway permits 
                drainage or safe passage over the highway by the 
                public.
            (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 other, specific public 
                purpose 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 authorized or otherwise 
                allowed to enter or use public land, and includes 
                Federal lessees, permittees, licensees, and invitees.
                    (B) Exceptions.--The terms ``public'' or ``public 
                user'' do not include any Federal agent or employee 
                acting within the scope of their agency or employment.
            (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 a public right-of-way allowing public use and 
        passage, which could be accepted by a claimant on or before 
        October 21, 1976.
            (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 or otherwise permit an R.S. 2477 right-
                        of-way for the specific public purpose.
                    (B) Clarification.--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, lands not formally 
                designated by Congress as wilderness, or lands with 
                wilderness characteristics.
            (17) Scope.--
                    (A) The term ``scope''--
                            (i) means the width of a R.S. 2477 right-
                        of-way as of October 21, 1976, including the 
                        area reasonable and necessary to meet the 
                        public convenience or safety (including 
                        maintenance, repair and realignment) or the 
                        exigencies of increased travel, based on the 
                        traditional uses of a highway; and
                            (ii) is not limited to the disturbed 
                        surface of the highway.
                    (B) For the purposes of this definition, the right-
                of-way condition of a road that has been open for at 
                least the previous 5 years shall be used as a 
                rebuttable presumption of what is reasonable and 
                necessary.
            (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.--A claimant of a right-of-way granted under R.S. 
2477 may file a claim under this section.
    (b) Administrative Claim After Filing Claim Under Title 28.--
            (1) In general.--A claimant is deemed to have filed a claim 
        under paragraph (1) if, before the date of the enactment of 
        this Act, the claimant--
                    (A) filed a notice of an intent to file suit with 
                respect to a claim asserting the public acceptance of a 
                right-of-way granted under R.S. 2477 under section 
                2409a(m) of title 28, United States Code; or
                    (B) filed suit with respect to a claim asserting 
                the public acceptance of a right-of-way granted under 
                R.S. 2477 under section 2409a(m) of title 28, United 
                States Code.
            (2) Pending court action.--If a claimant is deemed to have 
        filed a claim under paragraph (1) with respect to a previously 
        filed claim asserting the public acceptance of a right-of-way 
        granted under R.S. 2477 under section 2409a(m) of title 28, 
        United States Code, any suit filed by or on behalf of the 
        claimant with respect to public acceptance of the right-of-way 
        shall, except as to the preservation of evidence, be held in 
        abeyance pending final determination under this Act and shall 
        be dismissed without prejudice when acceptance of the right-of-
        way is finally determined under this Act, and all challenges 
        thereto have been exhausted.
    (c) Form; Contents.--
            (1) Form.--Not later than 30 days after the date of the 
        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)(1) shall 
        include--
                    (A) a center line description, or other verified 
                survey meeting generally accepted standards and 
                procedures, clearly showing the location, route, 
                direction, beginning and end points and length, 
                together with an average width of the claimed R.S. 2477 
                right-of-way as of a date certain;
                    (B) evidence demonstrating the acceptance and scope 
                of the claimed R.S. 2477 right-of-way; and
                    (C) proof of notice or attempted notice by the 
                claimant under subsection (e).
    (d) 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.
    (e) Notice.--
            (1) In general.--Except as provided in paragraph (3), 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.
            (3) Exception.--Notwithstanding paragraph (1), a claimant 
        shall be considered to have given sufficient notice under this 
        subsection if the claimant has filed a notice of an intent to 
        file suit, or has filed suit, with respect to the claimed R.S. 
        2477 right-of-way under section 2409a(m) of title 28, United 
        States Code, on or before the date of the enactment of this 
        Act.
    (f) 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.
    (g) Statute of Limitations.--Except as provided in subsection 
(a)(1), any statute of limitations for asserting title to an R.S. 2477 
right-of-way under this section 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) Evidence.--
            (1) In general.--Acceptance 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 one item of evidence from among the 
                categories of evidence described in subsection (c)(1); 
                or
                    (B) at least two items of evidence from among the 
                categories of evidence described in subparagraphs (A) 
                or (B) of subsection (c)(2).
            (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 that establishes 
        that the United States reserved the land as herein defined 
        underlying the claimed R.S. 2477 right-of-way before acceptance 
        conclusively establishes withdrawal of the Federal grant and 
        defeats the claim.
    (c) Description of Categories of Evidence.--For the purposes of 
processing claims under this Act, the following categories of evidence 
shall be considered:
            (1) Category 1.--Category 1 evidence consists of the 
        following types of evidence:
                    (A) Official minutes, resolutions, declarations, or 
                written agreements of a State or county governmental 
                body reflecting or otherwise memorializing a positive 
                or affirmative action by a State or county governmental 
                body accepting a claimed R.S. 2477 right-of-way prior 
                to October 21, 1976.
                    (B) 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 
                that show that the right-of-way was accepted by a State 
                or county governmental authority prior to October 21, 
                1976.
                    (C) Maps, plats, maintenance records (including 
                actual or estimated costs of maintenance), photographs, 
                or other computer-generated images demonstrating that 
                the claimed R.S. 2477 right-of-way was regularly 
                maintained by a State or county governmental authority 
                or private individual prior to October 21, 1976.
                    (D) Written or transcribed oral statements given 
                under oath before a notary public, court reporter, 
                judge or any other government official authorized by 
                law to administer oaths or otherwise authenticated 
                stating that the right-of-way was regularly maintained 
                by a State or local government or private individual 
                prior to October 21, 1976.
            (2) Category 2.--Category 2 evidence consists the following 
        types of evidence:
                    (A) In addition to the records described in 
                paragraph (1)(B) and(C), other historical records 
                including original documents, authenticated copies, 
                facsimiles, and computer-transmitted images (including 
                aerial photographs, topographical maps, and government 
                road maps), reliably showing evidence of public usage 
                of a R.S. 2477 right-of-way before October 21, 1976.
                    (B) Written or transcribed oral statements given 
                under oath before a notary public, court recorder, 
                judge or any other government official authorized by 
                law to administer oaths or otherwise authenticated 
                reciting reliable knowledge of the facts that establish 
                the acceptance by public usage of the R.S. 2477 right-
                of-way before October 21, 1976.
    (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 by the claimant only 
        in accordance with section 6.
    (e) Disclaimer and Relinquishment Required.--
            (1) In general.--Not later than 180 days after the date on 
        which evidence establishing acceptance of 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) Improvement consultation.--The disclaimer and 
        relinquishment shall clearly state that any future improvement 
        of an R.S. 2477 right-of-way is conditioned upon consultation 
        with the Secretary.
            (4) 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 the R.S. 2477 right-of-way.
            (5) Review.--The document delivered by, and any actions of, 
        the Secretary under paragraph (1)--
                    (A) shall be subject to review only as provided in 
                section 6; and
                    (B) shall not be subject to--
                            (i) quiet title proceedings under any other 
                        provision of law; or
                            (ii) any other judicial or administrative 
                        de novo or on the record reviews, claims, 
                        actions, or proceedings.
            (6) 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.--If a claimant seeks to appeal the denial by 
        the Secretary of a claimed R.S. 2477 right-of-way under this 
        Act, the claimant shall file an appeal of the denial 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 appeal on the record before the Secretary 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 120 days after the date on which the Secretary 
provides written notice to the claimant of the denial by the Secretary 
of the claimed R.S. 2477 right-of-way.
    (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 the enactment of this Act in which the 
United States was a party in determining rights to a R.S. 2477 right-
of-way.

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 1-time extension of up 
to 180 days for any 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.--Not later than 90 days after the date of the 
enactment of this Act, the Secretary shall complete all policies, 
procedures, delegations, forms, and any other action necessary to 
implement this Act and, on the completion of the actions described in 
paragraph (1), begin processing claims under this Act.
    (b) Injunction; Liability.--The duties and obligations of 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;
            (3) land held in trust by the Secretary of the Interior for 
        any Indian Tribe; or
            (4) land within the boundary of--
                    (A) a National Park (to exclude lands other than 
                National Parks which are under the jurisdiction or 
                administration of the National Park Service); or
                    (B) a congressionally designated National 
                Wilderness Area.
    (c) Effect on Claims.--This Act and the procedures and process 
implemented under this Act--
            (1) shall apply to--
                    (A) claims filed pursuant to this Act after the 
                date of the enactment of this Act; and
                    (B) claims filed before the date of the enactment 
                of this Act for which a final determination has not 
                been issued and which have been converted by claimant 
                for processing under the provisions of this Act by 
                filing the claim under section 4; and
            (2) shall not affect the ability of a claimant to file or 
        maintain a suit with respect to the claimed R.S. 2477 right-of-
        way under section 2409a(m) of title 28, United States Code, if 
        the claimant has not filed a claim under section 4 regarding 
        that R.S. 2477 right-of-way.

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.
                                 <all>