[Senate Report 104-261]
[From the U.S. Government Publishing Office]
Calendar No. 395
104th Congress Report
SENATE
2d Session 104-261
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REVISED STATUTES 2477 RIGHTS-OF-WAY SETTLEMENT ACT
_______
May 9, 1996.--Ordered to be printed
_______________________________________________________________________
Mr. Murkowski, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 1425]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 1425) to recognize the validity of
rights-of-way granted under section 2477 of the Revised
Statutes, and for other purposes, having considered the same,
reports favorably thereon with an amendment and recommends that
the bill, as amended, do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
No final rule or regulation of any agency of the
federal government pertaining to the recognition,
management, or validity of a right-of-way pursuant to
Revised Statute 2477 (43 U.S.C. 932) shall take effect
unless expressly authorized by an act of Congress
subsequent to the date of enactment of this Act.
purpose of the measure
As ordered reported, S. 1425 states that no final rule or
regulation of any agency of the Federal Government pertaining
to the recognition, management, or validity of a right-of-way
pursuant to a R.S. 2477 rights-of-way shall take effect unless
expressly authorized by an Act of Congress enacted subsequent
to the date of enactment of this Act. All Federal agencies are
required to abide by the rules and regulations in effect on the
date of enactment of this Act. The Committee expects that once
the current moratorium expires, the Department of the Interior
will continue to develop the proposed final regulations.
background and need
Section 8 of the Mining Act of 1866 stated that ``the right
of way for the construction of highways over public lands, not
reserved for public uses is hereby granted.'' The section was
codified as section 2477 of the Revised Statutes, and has been
referred to since then as ``R.S. 2477.'' The section was
included in the 1866 Mining law primarily to facilitate access
across public lands. In 1976, section 706 of FLPMA repealed
R.S. 2477, but recognized valid rights-of-way existing before
the date of enactment of FLPMA. The repeal did not provide any
time limitation on filing claims for pre-1976 rights-of-way.
Although the 1976 repeal of R.S. 2477 did not generate much
interest or controversy at that time, the issue has become very
contentious in recent years. The issue has become especially
controversial in Alaska and Utah, where the States have claimed
that access across large amounts of public lands is a necessary
component of the State infrastructure. Large numbers of
potential R.S. 2477 rights-of-way claims may exist across
Federal lands in these States.
In August 1994, the Department of the Interior proposed new
regulations for processing R.S. 2477 claims. The proposed
regulations would change existing regulations, and for the
first time require R.S. 2477 claimants to file a claim with the
Department within two years, even if the right-of-way had been
formally recognized. The Secretary (acting through the
authorized officer in the BLM, Park Service, or Fish and
Wildlife Service) would make a determination as to the validity
of the claim. If the claim was denied, the claimant could
appeal or the claimant could pursue a right-of-way application
under other Federal laws (e.g. title V of FLPMA or title XI of
ANILCA). If the claim was determined to be valid, the agency
would manage the right-of-way under existing Federal laws.
The original 90-day comment period was extended on two
occasions by the Secretary following Congressional requests,
with the comment period finally expiring one year after the
proposed regulations were originally published. Subsequently,
an amendment was included in the Highway bill which prohibited
the Department from expending any funds on the promulgation of
the proposed regulations through September 30, 1996.
Resolution of R.S. 2477 rights-of-way claims has been a
very complex and contentious process. S. 1425, as ordered
reported by the Committee, will allow the Department to proceed
with the development of new regulations, while prohibiting
their implementation until expressly approved by an Act of
Congress. It is the Committee's hope that in reviewing and
analyzing the extensive number of comments received after the
publication of the draft regulations, the Department will be in
a better position to propose final regulations that address and
hopefully more completely resolve the many competing concerns
raised during this process.
Legislative History
S. 1425, was introduced in the Senate by Mr. Murkowski, Mr.
Hatch, Mr. Stevens, and Mr. Bennett on Monday, November 1,
1995. The Senate Committee on Energy and Natural Resources held
a hearing on the bill March 14, 1996.
At the business meeting on Wednesday, May 1, 1996, the
Committee on Energy and Natural Resources ordered S. 1425, as
amended, favorably reported.
COMMITTEE RECOMMENDATIONS AND TABULATION OF VOTES
The Committee on Energy and Natural Resources, in open
business session on May 1, 1996, by voice vote of a majority of
a quorum present, recommends that the Senate pass S. 1425, if
amended as described herein.
Committee Amendment
During the consideration of S. 1425, the Committee adopted
an amendment in the nature of a substitute. The amendment
provides that no final rule or regulation of any agency of the
Federal Government pertaining to the recognition, management,
or validity of a right-of-way pursuant to R.S. 2477 rights-of-
way shall take effect unless expressly authorized by an Act of
Congress enacted subsequent to the date of enactment of this
Act.
Cost and Budgetary Considerations
The following estimate of the costs of this measure has
been provided by the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 8, 1996.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed S. 1425, a bill to recognize the validity of rights-
of-way granted under section 2477 of the Revised Statutes, and
for other purposes, as ordered reported by the Senate Committee
on Energy and Natural Resources on May 1, 1996. S. 1425 would
prohibit any federal agency from carrying out a final rule or
regulation pertaining to the recognition, management, or
validity of a right-of-way pursuant to Revised Statute 2477 (43
U.S.C. 932) unless authorized by an act of Congress.
R.S. 2477, first enacted in 1866, granted rights-of-way to
construct highways over public lands not reserved for public
uses. R.S. 2477 was repealed in 1976, but valid existing
rights-of-way were preserved. The Department of the Interior
(DOI) issued proposed regulations on July 29, 1994, to clarify
the administrative process for settling rights-of-way claims
made under R.S. 2477. However, the National Highway System
Designation Act of 1995 (Public Law 104-59), enacted in
November 1995, imposed a moratorium--through September 30,
1996--on any federal expenditures to promulgate regulations to
implement the proposed new process. Enacting S. 1425 would
effectively extend that moratorium indefinitely.
Enacting the bill could affect discretionary spending for
resolving claims related to R.S. 2477. Under current law, DOI
might expend funds after September 30, 1996, to promulgate and
implement final regulations on R.S. 2477. Under both current
law and this bill, the government could incur costs resulting
from litigation or from administrative actions to resolve
individual claims. CBO cannot project precisely how the costs
of resolving claims under S. 1425 would differ from those under
current law, but we do not expect that enacting this bill would
have a significant effect on discretionary spending in the near
term.
CBO estimates that enacting S. 1425 would not affect direct
spending or receipts. Therefore, pay-as-you-go procedures would
not apply to the bill.
S. 1425 contains no intergovernmental mandates as defined
in Public Law 104-4 and would impose no direct costs on state,
local, or tribal governments. The bill could reduce some costs
to states because it would prevent implementation of proposed
regulations that would impose costs on some state and local
governments. Those regulations would require state and local
governments to obtain an administrative determination as to the
validity and scope of all right-of-way claims under R.S. 2477
within two years, even if a claim has already been validated by
the courts. In the absence of these regulations, state and
local governments may still face costs, however, because they
would have to rely on the courts if they want to validate these
claims.
This bill would impose no new private sector mandates as
defined in Public Law 104-4.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Victoria V.
Heid and, for the state and local impact, Marjorie Miller.
Sincerely,
June E. O'Neill, Director.
regulatory impact evaluation
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 1425. The bill is not a regulatory measure in
the sense of imposing Government-established standards or
significant economic responsibilities on private individuals
and businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 1425, as ordered reported.
executive communications
On, March 4, 1996, the Committee on Energy and Natural
Resources requested legislative reports from the Department of
the Interior, the Department of Agriculture, and the Office of
Management and Budget of setting forth Executive agency
recommendations on S. 1425. These reports had not been received
at the time the report on S. 1425 was filed. When the reports
become available, the Chairman will request that they be
printed in the Congressional Record for the advice of the
Senate.
changes in existing law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that no
changes in existing law are made by the bill S. 1425, as
ordered reported.