[Senate Report 104-261]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 395
104th Congress                                                   Report
                                 SENATE

 2d Session                                                     104-261
_______________________________________________________________________


 
           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.