[Congressional Record Volume 141, Number 187 (Monday, November 27, 1995)]
[Senate]
[Pages S17530-S17533]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. MURKOWSKI (for himself, Mr. Hatch, Mr. Stevens, and Mr. 
        Bennett):
  S. 1425. A bill to recognize the validity of rights-of-way granted 
under section 2477 of the Revised Statutes, and for other purposes; to 
the Committee on Energy and Natural Resources.


         the revised statutes 2477 rights-of-way settlement act

  Mr. MURKOWSKI. Mr. President, I rise today to introduce legislation 
cosponsored both by myself, Senator Hatch, Senator Stevens and Senator 
Bennett. The purpose of this legislation is to allow State law to 
continue to determine revised statute covering 2477 right-of-ways, as 
it is known in the West.
  Mr. President, for almost 130 years State law has applied to the 
validation of R.S. 2477 right-of-ways. Simply stated, that is the 
``right-of-way for the construction of highways over public lands, not 
reserved for public uses, is hereby granted.''
  Originally, the grant was section 8 of the Mining Act of 1866. The 
provision then became section 2477 of the revised statute, R.S. 2477, 
until its repeal by the Federal Land Policy Management Act of 1976, 
known as FLPMA.
  Section 706 of FLPMA repealed R.S. 2477. However, section 701 
states--and I quote--``Nothing in this act terminates any valid right-
of-way existing on the date of approval of the act.'' Similarly, 
Section 509 of FLPMA states that nothing in title V on right-of-ways--
and I quote--``shall have the effect of terminating any right-of-way or 
rights-of-use heretofore issued, granted, or permitted.''
  Under the authority of R.S. 2477, highways were established to 
achieve access through the public domain. It was a primary authority 
under which many existing State and country highways were constructed 
and operated over Federal lands in the Western United States.
  Mr. President, in my State of Alaska many of these access routes were 
nothing more than perhaps a dogsled trail or footpath, but nevertheless 
provided essential routes from village to village for Alaska's Native 
people and other residents of the State. At that time it was a 
territory. 

[[Page S 17531]]

  The original grant was viewed as an open-ended offer that only 
required acceptance to fully vest. Once a right-of-way is fully vested, 
significant property rights would be attached to it.
  Historically, the Department of the Interior looked to the State 
highway laws as the standard for acceptance of the grant. The Federal 
Government did little to keep track of the number or location of these 
rights-of-ways for more than a century.
  However, the Department of the Interior proposed regulations in 
August 1994 to make it extremely difficult to establish right-of-way 
claims across Federal lands established under this law. The Department 
of the Interior claims the reason they are doing the regulations is to 
make a logical process to get R.S. 2477 rights-of-ways recognized.
  Mr. President, the regulations would actually do the following: They 
would override State law with restrictive new definitions of 
``highway'' and ``construction.'' They would put a cloud in the title 
of R.S. 2477 roads, treating them as invalid until proven valid. They 
would prevent any further expansion of scope of an R.S. 2477 right-of-
way. And it would prevent making the right-of-way any wider. It set a 
sunset of administrative and court action on validity of R.S. 2477 by 
extinguishing claims not filed within 2 years, and 30 days after final 
ruling.
  Further, construction and maintenance would not be permitted without 
approval of DOI with 3 days' notice, preventing the fixing of washed-
out roads until the Department of Interior gave approval. The draft 
Department of the Interior regulations are nothing more than an attempt 
to prevent legal access across our public lands. It would impose an 
almost impossible task on State and local governments to make all 
claims for rights-of-ways on Federal lands, and then have to validate 
each and every one of those claims.
  Nowhere would this be more burdensome than in my State, Alaska, twice 
the size of Texas, and less roads than the State of Vermont.
  This is clearly an effort to make sure Alaska and other Western 
States, Utah and others, would not have access across Federal lands for 
valid rights-of-way egress and access.
  It is really an effort to take away the rights of the States to 
validate and use their rights-of-ways.
  This legislation which I have introduced today will define those who 
can file a claim, will put a time line on the filing of these claims. 
It will ensure there are validated claims according to State law at the 
time of the assertion of those claims. Further, it would put the burden 
of proof on the Secretary of the Interior if he wants to challenge 
their validity.
  Additionally, legislation introduced herein will not, first, create 
any new rights-of-ways. If they were nonvalid in 1976, they will not be 
valid today.
  Further, we will not supersede existing environmental protections. We 
will not trample on private lands or Native lands.
  And, finally, Mr. President, the Federal Government has better things 
to do, in my opinion, than put unnecessary burdens on the Western 
States. I urge all of my colleagues to support this legislation.
  I would also add, Mr. President, that the State of Alaska has only 
been a State for 36 years. We are still very much involved in making 
claims based on the use across public lands for access. And so it is 
very much a real part of developing our State today. And I would urge 
my colleagues to recognize it. In most of the other States this process 
was done 100 years ago.
  Mr. HATCH. Mr. President, I rise to express my strong support for 
this legislation being introduced today by my good friend from Alaska, 
Senator Murkowski, regarding rights-of-way granted under revised 
statute [R.S.] 2477. This issue is of extreme and critical importance 
to my State, and this legislation is necessary to resolve, once and for 
all, the current situation that has clouded these rights since 1976.
  I want to congratulate Senator Murkowski for his leadership to bring 
the matter of claims made pursuant to R.S. 2477 to a close. I have 
worked closely with him to draft this proposal that meets the needs of 
all claimants in the various States, especially Alaska and Utah, where 
the overwhelming majority of R.S. 2477 claims are located.
  Mr. President, since 1976, when R.S. 2477 was repealed with passage 
of the Federal Land Policy and Management Act [FLPMA], State and local 
governments have had to wage constant battle with the Federal 
Government as to what constitutes a valid R.S. 2477 claim as well as 
what the scope of that claim is once it is determined valid under this 
statute.
  In Utah, this battle has been raging for quite some time. And, this 
firestorm is quickly spreading throughout the West. The controversial 
and highly publicized Burr Trail case in Garfield County, Utah, which 
has been litigated during the past decade, has brought this issue to 
the forefront. Nearly every county in UT, as well as many others in the 
West, has identified numerous R.S. 2477 rights-of-way claims. These 
local governments are justifiably concerned that the validation process 
of each claim may require enduring the same financial and legal burdens 
as the Burr Trail case, especially considering that more than 10,000 
claims have been identified in Utah alone.
  There has to be a better solution than the current system, which is 
what my colleagues from Alaska, Senators Murkowski and Stevens, and my 
colleague from Utah, Senator Bennett, and I have been fighting for 
during the past few years.
  At issue here is what constitutes a right-of-way as authorized by 
Congress in 1866. R.S. 2477 rights-of-way are thoroughfares, cart 
paths, one lane dirt roads, small log bridges over streams or ravines, 
and other roads that time and necessity have created in our western 
States. These rights-of-way, which traverse Federal lands--and we are 
obviously not using the term highway in the modern sense--have been an 
integral part of the rural American landscape for over 100 years.
  These rights-of-ways constitute an important part of the 
infrastructure of the Western States. I would ask my colleagues to 
think of this issue this way: suppose your front yard belonged to 
someone else--the Federal Government, for example--and the gravel 
driveway through the front yard was the only way to get to your house 
from the street. If you do not have complete authorization to maintain, 
improve, and keep open this driveway, then access to your home and 
possessions is eliminated. You would have to haul your groceries to 
your front door from the street. A simple illustration, perhaps, but 
one that shows the importance of these R.S. 2477 rights-of-way to the 
people in the West. These rights-of-ways were accepted before 1976 and, 
like your driveway, have been used continuously for decades as an 
integral part of the West's transportation systems. The Senate should 
take appropriate action to protect the well-being of western and Utah 
communities.
  Our legislation proposes to resolve the current controversies 
surrounding R.S. 2477 rights-of-way in several ways. It would provide a 
method of relief that many of us in the West have been pursuing for 
several years, namely that the designation of rights-of-way claims made 
pursuant to this authority should be determined under State law. The 
validity of these rights-of-way should be determined at the local 
level, and not by Congress, the U.S. Department of Interior, or the 
U.S. Department of Transportation.
  At the same time, the process for submitting claims under R.S. 2477 
should be as simple as possible consistent with legal requirements. A 
system for determining the validity of such claims should be designed 
to promptly resolve outstanding R.S. 2477 claims. Our bill creates such 
a process and places the burden of proof of each claim squarely on the 
shoulders of the Federal Government. Without this process, I envision a 
Federal system under which resolutions of such claims will become 
tremendously bogged down with no substantial resolution to this issue.
  My colleagues may ask that if these rights-of-way have existed for 
100 years, why is this legislation necessary?
  Last August, the Clinton administration and Secretary Babbitt 
proposed regulations to settle this issue. These regulations would 
require a complete abandonment by State and local governments of R.S. 
2477 rights-of-way claims and a total rejection of any evidence that 
documents the existence 

[[Page S 17532]]
and historic use of these rights-of-ways from 1866 up to 1976. They 
would allow the Secretary to determine whether or not a right-of-way 
existed prior to 1976 which, in my opinion is nothing more than asking 
State and local governments to abrogate their responsibilities as the 
owners of these rights-of-ways. We in the West are unwilling to do 
that. The Secretary's regulations are evidence that the task of 
achieving a solution that protects the intent and scope of the original 
statute while preserving the infrastructure of rural communities must 
involve Congress. As far as I am concerned, we are beyond a regulatory 
fix on this subject, particularly in light of the regulatory proposal 
put forward by the Clinton administration.
  Fortunately, Congress has included language in next year's Interior 
appropriations bill that prohibits the implementation of these 
misguided regulations.
  Basically, our legislation will ensure that: First, the intent and 
scope behind the original statute are consistent with the intent and 
scope underlying congressional passage of FLPMA; second, the 
congressional intent regarding the interpretation of R.S. 2477 in 
accordance with State law is preserved; third, the large body of 
settled, well-established, and well-documented Federal and State case 
law and agency regulatory determinations is adhered to, and fourth, the 
trust and respect for State and local governments, which hold these 
rights and are entitled to exercise their powers within the sphere of 
their authority without Federal intervention are restored.
  Mr. President, this matter is critical to communities and citizens in 
the rural West. In many cases, these roads are the only routes to farms 
and ranches; they provide necessary access for schoolbuses, emergency 
vehicles, and mail delivery. The Interior Department regulations would 
significantly confound transportation in the Western States, 
jeopardizing the livelihoods of many citizens and possibly their health 
and safety as well.
  Some claim that R.S. 2477 rights-of-way are nothing more than dirt 
tracks in the wilderness with no meaningful history, whose only value 
to rural counties arises from the hope of stopping the creation of 
wilderness areas. Nothing could be further from the truth. No one is 
suggesting that we turn these rights-of-way into six-lane lighted 
highways with filling stations, billboards, and fast food restaurants.
  Although, I am confident in saying today that I expect those opposed 
to this legislation to initiate a campaign of misinformation, dishonest 
facts, and outright untruths about the impact of our bill. They will 
paint a picture of our bill as authorizing the construction of paved 
roads through wilderness areas, native American trust lands, and 
national parks. They will employ these scare tactics, like they have on 
other public land measures now before Congress, to mislead the public 
and the media into believing an array of bulldozers, graders, and other 
road building vehicles are ready to begin an assault on the Nation's 
most pristine areas. Again, nothing could be further from the truth. If 
the right-of-way exists, then the scope and the attributes of that 
right must be protected from the local entity with jurisdiction. We are 
not--I repeat, not--authorizing the construction of roads over public 
lands where no right-of-way exists. Our bill provides the Secretary of 
Interior considerable latitude to express his position on each and 
every claim that is submitted and why these claims may or may not be 
valid.
  I do not like to be so forthcoming in this way, but after witnessing 
the misinformation campaign being waged against our Utah wilderness 
bill, I want to prepare my colleagues for what is coming. I would ask 
that they carefully confer with those of us who have thousands of these 
claims in our States so as to fully recognize the importance of this 
matter to our citizens.
  There is no pressing environmental reason to change the R.S. 2477 
rules other than to make Federal land more pristine than it has been 
since the pioneers settled in the West. I urge the Senate to support 
adoption of this legislation during this Congress.
  Mr. BENNETT. Mr. President, I am pleased to join my colleagues today 
in introducing this important legislation and I congratulate Chairman 
Murkowski for his tremendous leadership, as well as Congressman Jim 
Hansen, who has led the debate in the House of Representatives. While 
the issue of R.S. 2477 rights-of-way may not be of concern to many of 
our colleagues east of the Rocky Mountains, it is certainly an issue of 
importance to States in the West. The bill which we are introducing 
today will take great strides in putting an end to a controversy which 
has nearly paralyzed many rural counties in the State of Utah.
  As my colleagues have eloquently described the history of this issue, 
I will not go into great detail. However, I would like to make a few 
very important points.
  The R.S. 2477 statute is the authority under which many of the 
existing State and county highways in my State were constructed and 
operated. For example, in Garfield County, UT, portions of Highway 12, 
one of the most scenic and most heavily traveled routes in southern 
Utah, have no other written authorization besides the R.S. 2477 
authorization. Another example is the Hole-in-the-Rock road, 
historically one of the most significant routes in Utah history.
  This legislation seeks to address the problems that developed by the 
failure of R.S. 2477 to define what a highway was. By modern 
definition, highways are generally considered to be paved two or four 
lane roads, suitable for all types of traffic. However, southern Utah 
is crisscrossed with literally thousands of improved and unimproved 
roads which, regardless of the condition of the roads, are the 
lifelines to many native American communities, rural communities, 
public recreation areas, mining, oil and gas, and grazing claims.
  Currently, the only way a State or county can confirm the legality of 
a right-of-way is to file a lawsuit in a Federal court. This has placed 
an onerous financial burden on county governments which sincerely want 
to resolve the issue. Indeed, many of the smaller counties in Utah 
cannot afford to file claims even though R.S. 2477 rights-of-way is 
critical to their current and future economic survival. Mr. President, 
Utah has asserted more claims for R.S. 2477 than any other State. 
Nearly 5,000 claims have been asserted at one time or another. You can 
imagine the tremendous financial burden that result both for the county 
and the Federal Government.
  This legislation preserves the important role of State law in 
determining what is and is not a valid right-of-way. R.S. 2477 was 
originally an offer made by Congress to State and local governments to 
create highways across the vast stretches of western desert and to help 
settle the West. The original act recognized State law and relied on 
State law to provide many of the details of its implementation. In 
years past, the Department of the Interior has generally acquiesced to 
State law. Since the passage of FLPMA, and even up until the recent 
administration took office, the Department of the Interior's policy has 
generally looked to State law to determine what constitutes a public 
highway.
  Mr. President, this is a good bill. It restores the role of the State 
in determining what is and is not a valid right-of-way. It forces both 
the claimant and the Federal Government to come to the table. It 
narrows the time frame in which claims might be filed to 5 years. It 
grants the Secretary 2 years to object in writing to the claim and to 
provide a factual and legal basis for each objection. The proposed 
regulations would put the burden of proof on the claimant. It places 
responsibility on the holders of the claims to define, file, and defend 
them in court.
  This legislation will prevent roads from deteriorating which have 
been locked up. Most important, the legislation will preserve the 
ability of citizens to access public lands and, in many cases, private 
lands to mine, hunt, fish, camp, hike, view wildlife, and enjoy our 
fabulous natural beauty.
  The bill is not without its critics. The administration has already 
claimed that the bill will make it too easy to file new claims, and too 
burdensome for the Government to reject ones that do not meet the 
statutory criteria. Mr. President, I believe that we can take steps 
that will permit us to work through a large portion of the outstanding 
claims and I intend to work closely with my colleagues to do 

[[Page S 17533]]
so. I encourage my colleagues to support this legislation and I look 
forward to assisting the chairman in any way possible to move this bill 
quickly through the Senate.
                                 ______

      By Mr. THURMOND (for himself and Mr. Craig):
  S. 1426. A bill to eliminate the requirement for unanimous verdicts 
in Federal court; to the Committee on the Judiciary.


                       federal court legislation

  Mr. THURMOND. Mr. President, I rise today to introduce legislation on 
behalf of myself and Sen. Larry Craig of Idaho to amend the Federal 
rules of criminal and civil procedure to allow convictions on a 10 to 2 
jury vote.
  It is my belief that this change to the Federal rules will bring 
about increased efficiency in our Nation's court system while 
maintaining the integrity of the pursuit of justice.
  This legislation is consistent with the Supreme Court ruling 
concerning unanimity in jury verdicts, specifically in Apodaca v. 
Oregon, 406 U.S. 404. In that case, the Supreme Court ruled that the 
sixth amendment guarantee of a jury trial does not require that the 
jury's vote be unanimous. The Supreme Court affirmed an Oregon Court of 
Appeals decision which upheld a guilty verdict under an Oregon law that 
allowed a 10 to 2 conviction in criminal prosecutions.
  Mr. President, clearly there is not a constitutional mandate for the 
current requirement under the Federal rules of criminal and civil 
procedure of a jury verdict by a unanimous vote. The origins of the 
unanimity rule are not easy to trace, although it may date back to the 
latter half of the 14th century. One theory proffered is that 
defendants had few other rules to ensure a fair trial and a unanimous 
jury vote for conviction compensated for other inadequacies at trial. 
Of course, today the entire trial process is heavily tilted toward the 
accused with many, many safeguards in place to ensure that the 
defendant receives a fair trial.
  Although majority verdicts were permitted during 17th century America 
in South Carolina, North Carolina, Connecticut, and Pennsylvania, 
unanimous verdicts became an accepted part of common-law juries by the 
18th century.
  Mr. President, I found it interesting that the proposed language for 
the sixth amendment, as introduced by James Madison in the House of 
Representatives, provided for trial by jury as well as requisite of 
unanimity for conviction. While this particular proposal was passed by 
the House with little change, it met a significant challenge in the 
Senate and was returned to the House in a different form. Later, a 
conference committee was appointed and reported the language adopted by 
the Congress and the States which reflects the current sixth amendment.
  The earlier House proposal requiring a unanimous jury verdict for 
conviction was considered and not made a part of the sixth amendment. 
For purposes of discussion of this legislation, I will quote the 
pertinent part of the sixth amendment: ``In all criminal prosecutions, 
the accused shall enjoy the right to a speedy and public trial, by an 
impartial jury of the State and district wherein the crime shall have 
been committed.''
  The sixth amendment includes some features of common-law juries. 
However, the Supreme Court has admonished reliance on the easy 
assumption that if a given feature existed in a jury at common law in 
1789, then it was necessarily preserved in the Constitution. So here we 
see the Supreme Court has noted specifically that all features of the 
common-law jury are not mandated by the Constitution.
  Mr. President, there may be a number of inferences to be drawn from 
the deletion of the unanimity for conviction requirement in the 
proposed sixth amendment. One point we cannot escape is the fact that a 
unanimity requirement was considered by our Founding Fathers and 
determined that it should not be constitutionally mandated.
  In Duncan v. Louisiana, 391 U.S. at 156, the Supreme Court stated 
that the purpose of the right to a trial by jury is to prevent 
oppression by the Government by providing a ``safeguard against the 
corrupt or overzealous prosecutor and against the biased or eccentric 
judge.'' Carrying this view further in the subsequent case of Williams 
v. Florida, 399 U.S. 78 (1970), the Supreme Court stated, ``The 
essential feature of a jury obviously lies in the interposition between 
the accused and his accuser of the commonsense judgment of a group of 
laymen'' Williams, supra, at 100.
  Juries are representative of the community and their solemn duty is 
to hear the evidence, deliberate, and decide the case after careful 
review of the facts and the law. Of course, this should be done free of 
intimidation from outside and within the jury. The Supreme Court has 
noted that a jury can responsibly perform its function whether they are 
required to act unanimously or allowed to decide the case on a vote of 
10 to 2.
  There are cases where a requirement of unanimity produced a hung jury 
where had there been a nonunanimous allowance the jury would have voted 
to convict or acquit. Yet, in both instances, the defendant is accorded 
his constitutional right of a judgment by his peers. It is my firm 
belief that this legislation will not undermine the pillars of justice 
or result in the conviction of innocent persons.

  The American people, I believe, will strongly support change in the 
Federal rules of criminal and civil procedure to allow a jury 
conviction by a vote of 10 to 2. This change for jury verdicts in the 
Federal courts will also reduce the likelihood of a single juror 
corrupting an otherwise thoughtful and reasonable deliberation of the 
evidence.
  Mr. President, I hope the Congress will give careful and favorable 
consideration to this proposal and I ask unanimous consent that the 
bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1426

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

     SECTION 1. AMENDMENT OF FEDERAL RULES OF CRIMINAL PROCEDURE.

       Rule 31(a) of the Federal Rules of Criminal Procedure is 
     amended by striking ``unanimous'' and inserting ``by five-
     sixths of the jury''.

     SEC. 2. AMENDMENT OF FEDERAL RULES OF CIVIL PROCEDURE.

       Rule 48 of the Federal Rules of Civil Procedure is 
     amended--
       (1) by inserting after the first sentence the following: 
     ``The verdict shall be by five-sixths of the jury.''; and
       (2) in the last sentence, by striking ``(1) the verdict 
     shall be unanimous and (2)''.

                          ____________________