[Congressional Record Volume 151, Number 104 (Wednesday, July 27, 2005)]
[Extensions of Remarks]
[Pages E1622-E1624]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 INTRODUCTION OF BILL DEALING WITH CLAIMS FOR RIGHTS-OF-WAY UNDER R.S. 
                                  2477

                                 ______
                                 

                            HON. MARK UDALL

                              of colorado

                    in the house of representatives

                         Tuesday, July 26, 2005

  Mr. UDALL of Colorado. Mr. Speaker, I am today again introducing a 
bill to establish a process for orderly resolution of a problem that 
affects private property owners and the sound management of the Federal 
lands.
  What is involved are claims for rights-of-way under a provision of 
the Mining Law of 1866 that later was embodied in section 2477 of the 
Revised Statutes, and so is usually called R.S. 2477. It granted 
rights-of-way for the construction of highways across Federal lands not 
reserved for public uses. It was one of many 19th-century laws that 
assisted in the opening of the West for resource development and 
settlement.
  More than a century after its enactment, R.S. 2477 was repealed by 
the Federal Land Policy and Management Act of 1976, often called 
``FLPMA,'' and was replaced with a modern and comprehensive process for 
establishing rights-of-way on Federal lands. However, FLPMA did not 
revoke valid existing rights established under R.S. 2477--and, 
unfortunately, it also did not set a deadline for people claiming to 
have such rights to file their claims.
  As a result, there is literally no way of knowing how many such 
claims might be filed or what lands might be affected--including not 
just Federal lands but also lands that once were Federal but now belong 
to other owners. But it is clear that R.S. 2477 claims could involve 
not only thousands of square miles of Federal lands but also many lands 
that now are private property or belong to the states or other 
entities.
  This is obviously a serious problem. It also is the way things used 
to be with regard to another kind of claim on Federal lands--mining 
claims under the Mining Law of 1872. However, that problem was resolved 
by section 314 of FLPMA, which gave people 3 years to record those 
claims and provided that any

[[Page E1623]]

claim not recorded by the deadline would be deemed to have been 
abandoned. The courts have upheld that approach, and I think it should 
have been applied to R.S. 2477 claims as well. If it had been, R.S. 
2477 would be a subject for historians, not a headache for our land 
managers or a nightmare for private property owners. I think that now, 
finally--more than a quarter of a century since it was repealed--the 
time has come to let R.S. 2477 sleep in peace. And that is the purpose 
of the bill I am introducing today.
  The bill is based on legislation proposed by the Secretary of the 
Interior in 1997, with changes and refinements based on extensive 
consultations with many interested persons and groups.
  The bill follows the sound example of FLPMA by providing that any 
R.S. 2477 claim for which a notice is not filed with the government 
within 4 years will be considered to have been relinquished and void. I 
think this is more than reasonable, because people interested in 
claiming rights-of-way under R.S. 2477 have had ample time to decide 
whether they want to file a claim.
  The bill also spells out what information a claimant is to provide, 
how claims are to be considered administratively, and the rules for 
judicial review of administrative decisions about claims.
  Recognizing the potential threats to private or other non-Federal 
landowners from R.S. 2477 claims, the bill spells out that claims 
involving their lands will be considered to have been abandoned when 
the lands were transferred out of federal ownership unless the claimant 
can establish by clear and convincing evidence that at the time of 
transfer there was a well-established right-of-way whose use for 
highway purposes was intended to be allowed to continue. And it applies 
a similar standard to claims involving lands used for national defense 
purposes as well as National Parks, National Wildlife Refuges, 
wilderness and wilderness study areas, and other conservation areas.
  Since last year, my staff and I have discussed this subject with many 
people, representing a wide range of views. In particular, we worked 
closely with Commissioners and staff members from many of Colorado's 
counties. The results of those discussions are reflected throughout the 
bill, which differs from the previous version in many respects.

  Mr. Speaker, this is a fair, balanced bill. It gives anyone claiming 
to hold a valid right under R.S. 2477 ample opportunity to come forward 
and seek to have that claim upheld, with an opportunity to seek 
ultimate redress from the courts if necessary. At the same time, it 
gives private property owners and the American people--the owners of 
the Federal lands--assurance that the time will come when they will 
know what they own, without having to worry about new R.S. 2477 claims 
being made against their lands.
  In my opinion, such legislation is long overdue.
  I am attaching an outline of the main provisions of the bill.

                       Outline of R.S. 2477 Bill


                               Section 1

       Section 1 provides a short title, has findings about the 
     bill's background, and states its purpose, which is to 
     provide certainty to affected private landowners, State and 
     local governments, and the public by establishing a deadline 
     for filing of claims for highway rights-of-way under R.S. 
     2477 and providing a process for consideration and resolution 
     of such claims.


                               Section 2

       Section 2 defines key terms used in the bill.


                               Section 3

       Section 3 deals with the filing of notices of claims for 
     rights-of-way based on R.S. 2477:
       Subsection (a) sets a deadline of 4 years after enactment 
     for filing notices of claims.
       Subsection (b) specifies the information to be included in 
     each notice of a claim.
       Subsection (c) deals with the places for filing notices of 
     claims and other aspects of filing
       Subsection (d) requires publication and other steps to 
     inform the public.
       Subsection (e) provides that failure to timely file a 
     notice of a claim shall be deemed to constitute a 
     relinquishment of any rights purported to have been acquired 
     under R.S. 2477 related to that claim. This parallels Section 
     314 of FLPMA, which required recordation of unpatented mining 
     claims. A claimant would have 3 years to file a lawsuit 
     challenging the effect of this provision on a claim. Claims 
     already subject to final determination by any Federal court 
     or agency are exempt.


                               Section 4

       Section 4 addresses evidence to support claims.
       Subsection (a) sets a deadline of 6 year after filing a 
     notice of a claim for a claimant to submit evidence in 
     support of the claim.
       Subsection (b) requires submission of the following: 1) 
     Name, address, and contact information of the claimant; 2) 
     names and contact information of all persons or entities with 
     property interests in lands affected by a claim, as shown on 
     public records; 3) proof that notice of the claim has been 
     provided to the persons and entities listed under (2); 4) 
     identification of the entity that would have a property 
     interest in the right-of-way for which a claim is being made; 
     5) a description of the highway on which the claim is based; 
     6) evidence of construction of a highway on the claimed 
     route; 7) evidence that the claimed route constitutes a 
     highway; 9) a statement regarding the availability of 
     materials related to the claim; and 10) evidence that the 
     claimed right-of-way traversed public land not reserved for 
     other use at the time of construction of the highway
       Subsection (c) requires additional evidence to support 
     claims involving certain lands: 1) for claims involving 
     conservation lands, tribal lands, or defense lands, evidence 
     that prior construction and continuing use of the lands for 
     highway purposes were so open and notorious on and after the 
     date on which the lands acquired such status that management 
     of the lands by the Federal government was intended to be 
     subject to continuation of their use for highway purposes; 
     and 2) For claims involving lands no longer in Federal 
     ownership, evidence that prior construction and continuing 
     use of the lands for highway purposes were so open and 
     notorious on the date that the lands were transferred from 
     Federal ownership that the transfer was intended to be 
     subject to the continued use of lands for highway 
     purposes.
       Subsection (d) provides that a claimant who fails to submit 
     all the required evidence to support a claim will have an 
     additional 30 days to complete the submission, and that 
     failure to submit all required evidence shall result in a 
     determination that the claim is deemed abandoned and that any 
     rights purported to be based on R.S. 2477 with respect to the 
     claim have been relinquished. Such a determination is subject 
     to judicial review pursuant to section 5(j).


                               section 5

       Section 5 addresses review of claims and determinations 
     regarding them.
       Subsection (a) requires the authorized officer to review 
     timely-submitted evidence in order to determine whether a 
     claim should be considered presumptively valid.
       Subsection (b) provides that in all cases a claimant shall 
     have the burden of proving by a preponderance of the evidence 
     that a claimed right-of-way was validly accepted under R.S. 
     2477.
       Subsection I requires the authorized officer to determine 
     presumptively valid a claim involving private or other non-
     federal lands if the claimant has both met the burden of 
     proof specified in subsection (b) and has also demonstrated 
     by clear and convincing evidence that when the lands passed 
     from Federal ownership the prior construction and continuing 
     use of the lands for highway purposes were so open and 
     notorious that transfer of the lands was intended to be 
     subject to their continued use for highway purposes.
       Subsection (d) requires the authorized officer to determine 
     presumptively valid a claim involving conservation or defense 
     lands if the claimant has both met the burden of proof 
     specified in subsection (b) and has also demonstrated by 
     clear and convincing evidence that when the lands acquired 
     that status the prior construction and continuing use of the 
     lands for highway purposes were so open and notorious that 
     management of the lands for conservation of defense purposes 
     was intended to be subject to their continued use for highway 
     purposes.
       Subsection (e) requires the authorized officer to determine 
     presumptively valid a claim involving tribal lands if the 
     claimant has both met the burden of proof specified in 
     subsection (b) and has also demonstrated by clear and 
     convincing evidence that when the lands acquired that status 
     the prior construction and continuing use of the lands for 
     highway purposes were so open and notorious that it was 
     intended that use of the lands for highway purposes would 
     continue.
       Subsection (f) provides that if no portion of a claim 
     involves former Federal lands, conservation lands, defense 
     lands, or tribal lands, the authorized officer is to 
     determine the claim presumptively valid if the claimant has 
     met the burden of proof specified in subsection (b).
       Subsection (g) provides that if the authorized officer is 
     unable to determine a claim to be presumptively valid, the 
     officer will determine it invalid and that any rights 
     purported to have been acquired under R.S. 2477 with respect 
     to the claim have been relinquished and therefore no further 
     administrative action on it is required. It also provides for 
     notification of such a determination and specifies that such 
     a notification constitutes final agency action subject to 
     judicial review, and sets a 3-year statute of limitation for 
     initiation of such review.
       Subsection (h) specifies the procedures to be followed if 
     the authorized officer determines a claim is presumptively 
     valid, provides an opportunity for filing an objection to 
     such a determination, and allows a claimant to provide 
     supplemental evidence to respond to such an objection.
       Subsection (i) provides for a public hearing if an 
     objection is filed to a determination of presumptive 
     validity, upon the request of either a claimant or an 
     objector.
       Subsection (i) provides for review of information submitted 
     by an objector to a finding of presumptive validity and for 
     issuance of a determination of validity or invalidity.
       Subsection (k) specifies the information to be included in 
     determinations of validity, specifies that such a 
     determination is a final agency action subject to judicial 
     review, and

[[Page E1624]]

     establishes a statute of limitation for initiation of such 
     review.


                               section 6

       Section 6 includes a variety of administrative provisions:
       Subsection (a) prohibits charging a fee for filing of a 
     claim by a State, County, or local government.
       Subsection (b) sets priorities for reviewing and processing 
     claims: 1) claims filed by a State, County, or local 
     government; 2) claims filed by non-governmental parties and 
     involving private or other non-federal lands, conservation 
     lands, defense lands, or tribal lands; and 3) other claims.
       Subsection (c) requires that to the extent practicable 
     review of claims will be completed within a year after 
     submission of evidence and requires periodic status reports 
     on claims under review.
       Subsection (d) provides--1) authorized officers reviewing 
     claims are to seek and consider the views of affected States, 
     counties, local governments, tribes, Federal agencies, and 
     the public; 2) authorized officers reviewing claims are 
     responsible for coordinating with appropriate Federal 
     agencies; 3) authorizing officers reviewing claims involving 
     lands in Alaska will also seek the views and consult with any 
     affected Native Corporation.
       Subsection (e) authorizes retention by the United States 
     (with respect to claims involving conservation, defense, or 
     tribal lands) or the owner of record (with respect to claims 
     involving other lands) of exclusive possession or control of 
     lands affected by claims held upon judicial review to be 
     valid. The subsection specifies the United States or the 
     owner of record shall seek to reach agreement with the 
     claimant before exercising the authority to retain possession 
     or control.
       Subsection (f) requires filing of surveys of R.S. 2477 
     highway rights-of-way determined to be valid; provides that 
     failure to file such a survey within 5 years after final 
     administrative determination of validity shall be deemed to 
     be a relinquishment of any rights purported to have been 
     acquired under R.S. 2477 with respect to such right-of-way; 
     and establishes a 3-year statute of limitations to challenge 
     any such deeming of relinquishment.
       Subsection (g) provides for consultation with relevant 
     Federal agencies or tribes and requires concurrence of 
     relevant Federal agencies before a determination of 
     presumptive validity.


                               section 7

       Section 7 addresses the relationship between the bill and 
     other law and prior determinations.
       Subsection (a) provides that authorized officers are to 
     apply Federal law and relevant State law to the extent that 
     State law is consistent with Federal law.
       Subsection (b) specifies that nothing in the bill will 
     affect, change, alter, or modify Title V of FLPMA or Title IX 
     of the Alaska National Interest Lands Conservation Act.
       Subsection (c) provides--1) except as provided in this 
     subsection, nothing in the bill applies to or affects the 
     status of any judicial or administrative determinations made 
     prior to its enactment regarding any claim or assertion based 
     on R.S. 2477; 2) any final determination regarding an R.S. 
     2477 claim or assertion made sooner than 4 years after the 
     enactment of the bill must be filed with relevant offices of 
     the Bureau of Land Management and recorded on appropriate 
     local land records; 3) failure to file or record in 
     accordance with paragraph (2) shall be deemed a 
     relinquishment of any rights purported to have been acquired 
     under R.S. 2477; 4) a deeming of relinquishment for failure 
     to file or record is subject to judicial review; but 5) any 
     such judicial review must be initiated no later than 7 years 
     after the date of enactment of the bill.


                               section 8

       Section 8 specifies that no Federal officer, agency, or 
     court shall take any action to affirm the validity of any 
     assertion of a property interest in a right-of-way under R.S. 
     2477 except with regard to a claim filed under the bill.


                               section 9

       Section 9 authorizes appropriations to implement the bill.

                          ____________________