[Federal Register Volume 59, Number 146 (Monday, August 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18622]


[[Page Unknown]]

[Federal Register: August 1, 1994]


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Part IX





Department of the Interior





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Office of the Secretary



43 CFR Part 39



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Bureau of Land Management



43 CFR Part 2820



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National Park Service



36 CFR Part 14



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Fish and Wildlife Service



50 CFR Part 29



Revised Statute 2477, Rights-of-Way; Proposed Rules
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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 39

RIN 1090-AA44

 

Revised Statute 2477 Rights-of-Way

AGENCIES: Bureau of Land Management, National Park Service, Fish and 
Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would implement the Secretary of the 
Interior's June 1, 1993, recommendation to Congress that the Department 
of the Interior (Department) promulgate regulations addressing rights-
of-way pursuant to Revised Statute (R.S.) 2477 across lands now 
administered by the Bureau of Land Management, the National Park 
Service, and the U.S. Fish and Wildlife Service. R.S. 2477--a provision 
adopted by Congress in 1866 that granted a right-of-way for the 
construction of highways across public land not reserved for public 
uses--was repealed in 1976, but valid existing rights-of-way were not 
terminated.
    There is not currently in place any formal administrative process 
by which those who claim R.S. 2477 rights-of-way can have the 
Department make binding determinations of their existence and validity. 
Furthermore, inconsistent court interpretations and incomplete guidance 
from the Department over the years have done little to elucidate the 
nature of the rights acquired. This proposed rule is intended to 
clarify the meaning of the statute and provide a workable 
administrative process and standards for recognizing valid claims.

DATES: Comments must be submitted in writing by September 30, 1994. 
Comments received after this date may not be considered in the 
decision-making process on the issuance of the final rule.

ADDRESSES: Comments on these proposed regulations should be sent to: 
U.S. Department of the Interior, Main Interior Building, 1849 C Street, 
N.W., room 5555, Washington, DC 20240. All comments received will be 
available for public review in room 5555 at the above address between 
the hours of 7:45 a.m. to 4:15 p.m., Monday through Friday.

FOR FURTHER INFORMATION CONTACT: Bureau of Land Management: Ron 
Montagna, (202) 452-7782, or Ted D. Stephenson, (801) 539-4100. 
National Park Service: Dennis Burnett, (202) 208-7675. U.S. Fish and 
Wildlife Service: Duncan Brown, (703) 358-1744.

SUPPLEMENTARY INFORMATION:

Background

    R.S. 2477 states simply: ``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 ``An Act Granting 
Right of Way To Ditch and Canal Owners Over The Public Lands, and For 
Other Purposes,'' also known as the Mining Act of 1866. In 1873 Section 
8 was codified as Section 2477 of the Revised Statutes, hence the 
reference as R.S. 2477. In 1938 the statute was recodified as 43 U.S.C. 
932. On October 21, 1976, R.S. 2477 was repealed by the Federal Land 
Policy and Management Act of 1976 (FLPMA). Public Law 94-579, Section 
706(a), 90 Stat. 2744, 2793 (1976). FLPMA did not terminate valid 
rights-of-way existing on the date of its approval. Section 509(a), 90 
Stat. 2781, 43 U.S.C. 1769; Section 701(a), 90 Stat. 2786, 43 U.S.C. 
1701 note.
    Although this more than a century-and-a-quarter-old provision was 
repealed nearly 18 years ago, interpreting it today remains important, 
because valid rights-of-way existing at repeal were not terminated. In 
recent years, there has been growing controversy, concentrated in two 
Western States, over whether specific claimed access routes ought to be 
considered ``highways'' that were ``constructed'' pursuant to R.S. 
2477, and if so, the extent of the rights thus obtained. This 
controversy stems in large part from the lack of specificity in the 
statutory language, which has helped create unrealistic expectations in 
interested local and State governments, environmental and wilderness 
protection groups, and other Federal land users. In addition, the 
language of R.S. 2477 causes uncertainty and potential conflict for 
Federal land managers charged with managing and protecting Federal 
lands according to current environmental and land use laws.
    For several years both Congress and the Department have given 
attention to the problems posed by R.S. 2477. Most recently, in the 
Conference Report on the Fiscal Year 1993 Appropriations Bill for 
Interior and Related Agencies (September 24, 1992), Congress directed 
the Department of the Interior to study the history, impacts, status, 
and alternatives to R.S. 2477 and to prepare a report that provided 
sound recommendations for assessing the validity of claims. On June 1, 
1993, the Secretary of the Interior submitted to Congress the United 
States Department of the Interior Report to Congress on R.S. 2477: The 
History and Management of R.S. 2477 Rights-of-Way Claims on Federal and 
Other Lands (Report). In the Report, the Secretary informed Congress 
that the Department of the Interior (DOI) would promulgate regulations 
to address these ongoing concerns.
    During preparation of the Report, the Department obtained public 
participation in two stages. Preliminary scoping meetings were held in 
December 1992 and January 1993 in eight western cities. Over 4,000 
pages of public comments were received and reviewed. These comments 
were instrumental in preparing a March 1993 draft of the Report, which 
was circulated to approximately 4,000 interested parties. Seven 
additional public meetings were held to solicit comments on the draft. 
Approximately 1,000 pages of further comments were provided to the 
Department. All public input received in this process was considered in 
preparation of this proposed rule.

Need for the Regulations

    Thousands of miles of highways have been constructed across the 
public domain, including many existing State and county highways in the 
Western United States, under the authorization of R.S. 2477 and similar 
provisions. Rights-of-way validly acquired pursuant to R.S. 2477 are 
historic and important means of access to and across Federal lands for 
local citizens, recreationists, and Federal land managers performing 
official duties.
    Historically, these rights-of-way have not presented many problems 
to land managers, because in general their existence is obvious and 
unquestioned. However, in some locales in recent years, competing ideas 
about the purposes for which Federal lands should be managed have 
mirrored competing interpretations of what the R.S. 2477 statute 
granted. Some State and county governments, intent on maintaining a 
road infrastructure for their citizens and providing for economic 
development, have turned to R.S. 2477 as a guarantee of access across 
and to Federal lands, believing it to provide simpler and less 
restrictive access than other Federal laws. There are some proponents 
of unlimited and unregulated access to Federal lands who view R.S. 2477 
as a mechanism on which they believe they can rely to circumvent the 
protective requirements of current environmental and land use law and 
to authorize the present expansion of footpaths and animal trails into 
highways. Some environmental groups view R.S. 2477 with alarm, 
believing it to have been resurrected so long after its repeal as a 
weapon to defeat the designation of existing and potential wilderness 
areas (which are roadless by definition). These widely varying views 
have created controversy and exacerbated management problems for both 
holders of the rights-of-way and Federal land managers.
    In the current situation, it is difficult for Federal land 
managers, local governments, and public land users to know which right-
of-way claims are valid and where they lie. These proposed regulations 
are intended to clarify the provision in its historic context and to 
provide a formal administrative process--as an alternative to 
potentially expensive and lengthy judicial proceedings--by which 
validly acquired rights-of-way will be recognized and regulated.
    R.S. 2477 has been the subject of inconsistent interpretations. The 
statutory terms ``highway,'' ``construction,'' and ``public lands not 
reserved for public uses'' have not been defined completely or 
consistently, resulting in uncertainty for all parties about the exact 
nature and extent of the grant. In the absence of uniform Federal 
guidance, court decisions--sometimes applying widely varying State 
laws--have also failed to provide consistent or complete 
interpretations. Some recent State laws, including some adopted after 
the repeal of R.S. 2477, employ overly broad definitions or are 
otherwise inconsistent with the statutory requirements.
    Federal land managers need consistent, coherent guidance on how to 
apply this provision and how to manage its potential conflicts with 
other existing laws. State and local governments and public land users 
need greater certainty. This proposed rule would clarify the legal 
meaning of these terms so that validly acquired rights-of-way can be 
recognized and regulated consistently and fairly.
    In most cases, records do not exist documenting the existence of 
rights-of-way. Highways constructed pursuant to R.S.2477 did not 
require any specific, formal approval from the Federal government, so 
they were not generally recorded on the public land records. A Federal 
regulation published in 1980 requested claim holders to notify the 
Bureau of Land Management (BLM) of the existence of claims, but it also 
expressly said that the filing or failing to file a claim would have no 
legal effect. 43 CFR 2802.5(b) (1980). The response elicited by this 
request was therefore incomplete.
    This uncertainty can cloud the title of Federal, State, local, 
private, and Indian or Alaska Native lands with possible unrecorded 
restrictions and interfere with the ability of property owners and land 
managers to manage or plan for uses of the land. The uncertainty also 
leaves claimants with undefined and unrecorded rights and the potential 
for confusion in trying to use or enforce those rights.
    The ability of Federal agencies to meet their statutory obligations 
is compromised if claims are not identified with finality. For example, 
land use planning to provide for orderly and responsible decisionmaking 
on Federal lands is adversely affected if previously unnoticed or 
unused R.S. 2477 rights-of-way can be claimed for an indefinite period. 
Federal land managing agencies are required by existing laws to prepare 
long-term land use planning documents that identify and analyze the 
condition of the land, current and future uses, current and future 
environmental protection measures, and other measures to establish an 
appropriate management scheme. Preparation of these land use plans, 
whether they are General Management Plans prepared for each unit of the 
National Park Service or Resource Management Plans prepared for BLM 
lands, is a lengthy, complex process designed to meet existing legal 
requirements, the needs of the public, and the resource.
    This rule intends to establish a process to determine which claims 
to rights-of-way were validly acquired, by requiring the filing of a 
claim within specified time periods. Besides offering a way to have 
rights validated without pursuing court actions, finalizing claims 
within a set time period will give claimants more security, because as 
time passes it will become increasingly difficult to determine which 
rights-of-way were validly acquired. After the locations of claimed 
rights-of-way are known, Federal land managing agencies will be better 
able to plan for and manage the Federal lands.

R.S. 2477 and Other Means of Access to and Across Federal Lands

    Although R.S. 2477 was repealed in 1976, other methods exist of 
obtaining access to or across Federal lands. There are, in fact, 
several provisions and means of obtaining access across Federal lands 
other than R.S. 2477. If a right-of-way under R.S. 2477 is determined 
not to exist, or to be limited in scope, access may still be obtained 
under, and consistent with, these other laws allowing access.
    Most access across public lands is accomplished informally under 
the privilege of casual use (defined at 43 CFR part 2800), without the 
necessity of special permission. Refuge and park visitors or public 
land users travel under the terms of casual use or other implied rights 
that do not require a right-of-way permit or other authorization.
    Reasonable access is generally made available to persons engaged in 
valid uses of the public lands such as mining claims, mineral leasing, 
livestock grazing, and others. Provisions of the Alaska National 
Interest Lands Conservation Act (ANILCA) provide for reasonable access 
across Federal lands to inholdings including those within National 
Forests and within blocks of public land managed by BLM.
    Rights-of-way for roads or other access can be applied for under 
several other provisions of existing Federal law such as Title V of 
FLPMA. Access is sometimes obtained also through reciprocal road 
agreements between a Federal agency and parties seeking access across 
Federal land. This authority is found at 43 CFR 2801.1-2.
    For rights-of-way in Alaska, Congress has provided certain special 
provisions. These include public easements across selected Native 
corporation lands pursuant to Section 17(b) of the Alaska Native Claims 
Settlement Act (ANCSA) and the Transportation and Utility Corridor 
system process under Title XI of ANILCA.

Regulation of Valid R.S. 2477 Rights-of-Way

    Congress enacted R.S. 2477 during a period when the Federal 
Government was promoting settlement of the West. In the same era and in 
the same manner, Congress granted rights-of-way for numerous purposes, 
perhaps most commonly for the construction of railroads. R.S. 2477 was 
part of an Act that granted other types of rights-of-way and certain 
mining rights. Later recodified along with other rights-of-way 
provisions, this simple statute had a very specific purpose, limited by 
its own terms, to authorize the construction of highways across the 
public domain. There is no legislative history elaborating on Congress' 
intent in passing this provision.
    With the passage of FLPMA, Congress determined that lands managed 
by the Bureau of Land Management should be retained in public ownership 
and managed according to the principles of multiple use and sustained 
yield, while preventing unnecessary or undue degradation of the lands. 
43 U.S.C. 1732(a),(b). FLPMA also sets forth a process for areas to be 
reviewed and designated as Wilderness Study Areas (WSA) while Congress 
considers inclusion of these areas in the National Wilderness 
Preservation System. Section 603(c) of FLPMA requires that these areas 
are to be managed under FLPMA and ``other applicable law'' in a manner 
that will preserve the suitability for designation as wilderness and to 
prevent unnecessary or undue degradation and to provide environmental 
protection. 43 U.S.C. 1732(c).
    In addition to providing for new management standards, FLPMA 
repealed R.S. 2477 and numerous other similar provisions, and provided 
a new, consolidated process for the granting and management of rights-
of-way over Bureau of Land Management lands (and National Forest 
lands). Public Law 94-579, Section 706(a), 90 Stat. 2744, 2793 (1976); 
FLPMA, Title V, 43 U.S.C. 1761-1771. FLPMA neither terminated existing 
rights-of-way, nor exempted them from regulation under its standards. 
Public Law 94-579, Section 701(a), 90 Stat. 2786, 43 U.S.C. 1701 note. 
See also, Sierra Club v. Hodel, 848 F.2d 1068, 1086-1088 (10th Cir. 
1988) (valid existing R.S. 2477 right-of-way can be regulated by BLM to 
prevent unnecessary and undue degradation).
    Similarly, when Congress passed laws creating the National Park 
System and the National Wildlife Refuge System, it imposed new, more 
protective management standards on these categories of Federal land and 
directed the Department to uphold these standards. When most parks or 
refuges were created, pre-existing rights including rights-of-way 
usually were not terminated, but became subject to the new management 
regime. For example, the courts have interpreted the authority of the 
National Park Service to include regulation of pre-existing R.S. 2477 
rights-of-way across National Parks. United States v. Vogler, 859 F.2d 
638 (9th Cir. 1988), cert. denied, 488 U.S. 1006 (1989).
    R.S. 2477 must be read against these requirements. While existing 
rights pursuant to R.S. 2477 were not terminated, their preservation 
did not provide prospective, unrestricted authority to create or 
improve highways without regard for the purposes of these land 
management systems, or other environmental and resource protection 
laws. That is, rights-of-way validly acquired pursuant to R.S. 2477 
remain subject to regulation under the Federal laws that govern the 
underlying and adjacent Federal lands. An Advance Notice of Proposed 
Rulemaking, published separately today, announces that the Department 
is considering whether and how to promulgate specific regulations to 
address the management of R.S. 2477 rights-of-way.

Role of State and Federal Law

    The relationship between State and Federal law is important both 
for determining whether a right-of-way was validly acquired and for 
determining the scope of a right-of-way. The proposed rule states that 
Federal law controls interpretation of the offer made by R.S. 2477, but 
that claimants are required also to comply with State law, which 
therefore may further condition the acceptance of a right-of-way or 
define its scope. A claimant cannot, however, accept under State law 
something that was not offered by Federal law.
    The interplay between State and Federal law has created some 
confusion, which this proposed rule is intended to eliminate. The rule 
would continue to recognize the role of State law, to the extent that 
State law is consistent with the baseline requirements of Federal law. 
The Department is authorized to recognize only those interests in the 
Federal lands that have been established in accordance with the 
directions of Congress. It cannot recognize highways purported to be 
established under State laws that do not meet the minimal Federal 
statutory requirements, written into R.S. 2477, for construction of a 
highway over unreserved public lands.
    This position was articulated as early as 1898. Secretary C.N. 
Bliss reviewed an Order of the Board of County Commissioners of Douglas 
County, Washington, which declared that with respect to R.S. 2477, all 
section lines in the county would be the center lines or side lines of 
highways that would be hereby declared to be 60 feet in width. 
Observing that the county's order ``embodies the manifestation of a 
marked and novel liberality on the part of the county authorities in 
dealing with the public land,'' the Secretary affirmed the decision of 
the General Land Office that such State action could not validly accept 
the R.S. 2477 grant. The Secretary's decision provides guidance on the 
appropriate interpretation of these issues still before the Department 
nearly one hundred years later:

    There is no showing of either a present or a future necessity 
for these roads or that any of them have been actually constructed, 
or that their construction and maintenance is practicable. Whatever 
may be scope of the statute under consideration it certainly was not 
intended to grant a right of way over public lands in advance of an 
apparent necessity therefor, or on the mere suggestion that at some 
future time such roads may be needed.

26 I.D. 446, at 447 (1898).
    As this decision illustrates, R.S. 2477 was intended to convey a 
right-of-way for highway purposes upon actual construction, and not 
merely upon the suggestion that a State or local government might need 
a highway in a suggested location at a later time.
    The Department has referred to State law to fill in gaps in the 
terms of R.S. 2477. See 43 CFR 244.55 (1939); BLM Manual, Rel. 2-229. 
This is consistent with the approach taken by Federal courts, which 
have recognized that while the scope of a grant of Federal lands is a 
question of Federal law, and that any doubt as to the scope of the 
grant under R.S. 2477 must be resolved in favor of the Government, the 
Department may properly look to State law to determine the scope of a 
right-of-way. See, e.g., United States v. Gates of the Mountains 
Lakeshore Homes, 732 F.2d 1411, 1413 (9th Cir. 1984); Sierra Club v. 
Hodel, 848 F.2d 1068 (10th Cir. 1988).
    When R.S. 2477 was repealed, the ability to acquire new rights 
under its auspices was also revoked. Therefore, provisions of State 
laws that authorize the ``establishing'' of highways without the 
requirements that there be actual construction of a highway over 
unreserved public lands, or provisions that authorize expansion of the 
scope of a right-of-way vested as of the repeal of the statute (or the 
reservation of the land, whichever was earlier) conflict with Federal 
law and may not be utilized.
    When the Department makes a determination concerning the 
acquisition or scope of a right-of-way under these regulations, it will 
refer to State law as appropriate. The pertinent State law is that 
which was in effect at the time of the repeal of R.S. 2477 or at the 
time of the reservation of the land, whichever came first. All rights 
that could have been acquired must have been acquired prior to that 
date. Subsequent revisions of State law cannot expand these rights.
    While this proposed rule was in preparation, a panel of the Ninth 
Circuit Court of Appeals issued a decision in the case of Schultz v. 
Department of the Army, 92-35197, 92-35580, 1993 U.S. App. Lexis 31037, 
(9th Cir., Nov. 30, 1993). The panel decision took a somewhat more 
lenient view of the criteria for establishing a valid R.S. 2477 right-
of-way than does this proposed rule. The Federal Government believes 
the panel decision is not consistent with congressional intent or 
practice under the statute, and the United States is seeking a 
rehearing of the panel's decision before the full Ninth Circuit Court 
of Appeals. The Department will, of course, take any final decision in 
the case into account in moving forward with a final rule.
    The Department specifically requests comments on the foregoing 
interpretation of the relationship between State and Federal law as 
applied to R.S. 2477.

Structure and Objective of the Proposed Rule

    This proposed regulation is the first of two proposed parts. This 
part outlines a process for determining which rights-of-way were 
validly acquired. The second part, published separately today as an 
Advance Notice of Proposed Rulemaking, will outline options the 
Department is considering for determining how validly acquired rights-
of-way will be managed on Department of the Interior lands.
    This proposed rule aims to: define key terms of the statute, 
provide a process for assertion of claims for rights-of-ways, establish 
an administrative procedure for the orderly and timely processing of 
claims, establish a process for input from the public prior to the 
administrative determination of a claim, and provide an appeal process 
for any adversely affected party. The proposed regulations that will 
implement these objectives are proposed jointly by the Bureau of Land 
Management, the National Park Service, and the U.S. Fish and Wildlife 
Service in this rulemaking action and will be codified at 43 CFR part 
39.
    As indicated in an Advance Notice of Proposed Rulemaking, published 
separately today, the Department is also considering whether and how to 
manage rights-of-way determined to be validly acquired under these 
provisions. The Bureau of Land Management, the National Park Service, 
and the U.S. Fish and Wildlife Service are each considering the need 
for regulations to govern the management of R.S. 2477 rights-of-way 
found to be validly acquired, consistent with the legal requirements 
that govern the adjacent and underlying Federal lands. Separate 
management regulations for each agency may be necessary because each 
has different statutory authority and management standards.

Applicability of the Regulations

    These regulations would apply to all lands managed by the Bureau of 
Land Management, the National Park Service, and the U.S. Fish and 
Wildlife Service. Federal lands under the administrative jurisdiction 
of other bureaus in the Department of the Interior or other Federal 
agencies would not be affected by these regulations.
    These regulations are intended to create a process by which R.S. 
2477 right-of-way claims can be systematically filed and reviewed to 
determine whether the elements of the R.S. 2477 statute were met. In 
order for the Department to recognize that a right-of-way exists 
pursuant to R.S. 2477, a highway had to have been constructed when the 
public land it traverses was not reserved, or prior to the repeal of 
R.S. 2477, whichever was earlier.
    The process provided in the proposed rule is not an application 
process for new rights-of-way, and the Department cannot grant new 
rights through these provisions. Rather, it is a process for formal 
recognition by the Department of rights-of-way that were validly 
acquired pursuant to R.S. 2477 prior to its repeal and the enactment of 
FLPMA. The Department's recognition that a right-of-way was validly 
acquired will improve manageability and convenience for the holder of 
the right-of-way and the Federal land manager.
    The proposed rule would establish specific filing requirements and 
a specific process to facilitate efficient processing of claims. The 
implementing Federal officials will work with claimants to comply with 
these requirements. Failure to follow the process as outlined will 
delay processing and may result in an administrative denial of the 
claim. An administrative denial of a claim can be appealed to the 
Director of the appropriate agency, and if the desired relief is not 
received, to an appropriate Federal court.
    R.S. 2477 rights-of-way that cross private or Indian or Alaska 
Native lands are not governed or affected by these regulations. The 
Department does not intend to make administrative determinations of 
claims for rights-of-way that cross lands that are now in State, 
private, Indian, or Alaska Native ownership or under the jurisdiction 
of another Federal agency.

Section by Section Analysis

Section 39.1  Purpose

    This section would state the purposes of the rule.

Section 39.2  Authority

    This section would provide citations to the general authorities of 
the Secretary of the Interior, and to the specific authorities of the 
National Park Service, Bureau of Land Management, and U.S. Fish and 
Wildlife Service to manage the Federal lands.

Section 39.3  Definitions

    This section would define the statutory terms of R.S. 2477 and 
other key terms in these regulations.
    Paragraph (a) Administrative Determination: The decision made by 
the authorized officer after consideration of the evidence would be 
called the administrative determination. It will include a finding of 
whether the right-of-way was validly acquired, and if so, describe its 
scope. If a claimant has received a judicial determination that a 
right-of-way was validly acquired, the administrative determination 
will describe any aspects of the right-of-way not decided by the court, 
including, if applicable, its scope.
    Paragraph (b) Authorized Officer: Claimants would file their claims 
with an authorized officer. The authorized officer is the State 
Director of the Bureau of Land Management, or the Regional Director of 
the Fish and Wildlife Service, or the Regional Director of the National 
Park Service, who has jurisdiction over the Federal land over which a 
claim pursuant to R.S. 2477 lies. The rule proposes that State or 
Regional Directors be authorized to delegate this responsibility.
    Paragraph (c) Claim: This term would be defined as the filing of 
documentation that asserts the existence and scope of a right-of-way 
pursuant to R.S. 2477 across lands managed by the Department of the 
Interior. Claims must contain information sufficient to allow the 
authorized officer to evaluate the validity of the claim and/or to 
describe its scope.
    Paragraph (d) Claimant: The term claimant would be defined as any 
person or entity asserting the existence of and a property interest in 
a right-of-way pursuant to R.S. 2477 across lands managed by the 
Department of the Interior under these regulations or in any court 
action. The Department presumes that all claimants will be State or 
local government agencies with authority for public highway management. 
However, there may be rare cases in which a private citizen constructed 
and operates a highway (that meets all other requirements) in such a 
manner as to have validly acquired a right-of-way pursuant to R.S. 
2477. The Department will consider such claims, unless they are 
precluded by State law, but will require that these same standards be 
met. The Department specifically requests comments on whether and how, 
in any case of a private claim, State or local agencies with 
jurisdiction over highways in the area should be notified, consulted, 
and involved in the determination of validity.
    Paragraph (e) Construction: In interpreting R.S. 2477, ordinary 
rules of statutory construction dictate that every word in the statute 
be given effect. See Sutherland, Statutory Construction, Fourth 
Edition, Section 46.01, (1984). Construction is an important term: it 
is the act required to be performed in order to complete the right-of-
way grant. R.S. 2477 granted a right-of-way upon the construction of a 
highway, not the dedication or planning or designing of a highway. 
Prior to its repeal, new construction for highway purposes could 
complete acceptance of new or additional rights-of-way, so long as the 
land remained unreserved at the time of construction.
    The definition in the proposed regulations would recognize that 
standards of highway construction technology changed between the time 
when R.S. 2477 was passed and when it was repealed. The definition also 
recognizes that Congress intended in R.S. 2477 to authorize a specific 
activity--the construction of highways--and did not intend, and would 
not have needed, to authorize less durable forms of access. The 
proposed rule, therefore, would require that intentional physical acts 
be performed with the achieved purpose of preparing a durable, 
observable, physical modification of land and that this modification be 
suitable for highway traffic.
    Where a path or trail was created initially by the mere passage of 
vehicles, the construction requirement is met only if the path or trail 
has been subsequently maintained by acts that meet the requirements of 
construction, before the latest available date (defined below). 
Construction of a highway cannot be accomplished solely by any of the 
following activities: continual passage over a surface that has not 
previously been intentionally constructed, even if the continual 
passage eventually creates a defined route; clearing of vegetation; or 
removal of large rocks. The Department specifically requests comments 
on this definition, including the requirements to show intentional 
acts, durable and observable physical modifications of land, and a link 
to highway traffic.
    Paragraph (f) Highway: R.S. 2477 authorized the construction of 
highways, not railroads or canals or other types of access. When R.S. 
2477 was enacted, a highway was understood to mean an open public road 
that served public travel or commerce needs or connected places between 
which people or goods traveled. Congress presumably authorized the 
construction of highways to make it possible for vehicles, including 
wagons, to travel them. There is no legislative history to suggest that 
Congress meant to authorize the construction of highways for private 
uses, for foot traffic, or for a road that did not provide needed 
access from one public destination to another.
    The Department specifically requests comments on this definition, 
including the requirements to show current use, vehicular use, public 
use, and the connection between places made possible by the 
construction of the highway. The Department also requests comments on 
whether any of these terms needs further definition. The Department is 
considering whether to require a more specific showing that a right-of-
way that once existed, but is no longer used, has not been abandoned 
and requests comments on this issue.
    This definition of highway would not rule out the later adoption of 
a private road by a public entity, prior to repeal of the statute (or 
reservation of the land if this was earlier) in order to establish the 
right-of-way under the authority of R.S. 2477. The Department does not 
intend to require that all rights-of-way run from city to city; as long 
as the route connects identifiable places to which the public travels, 
it may meet this requirement. The Department therefore interprets the 
term highway to mean a thoroughfare that is currently and was, prior to 
the latest available date, used by the public without discrimination 
against any individual or group for passage of vehicles carrying people 
or goods from place to place. State law that was in effect on the 
latest available date may place additional limits on what kind of 
thoroughfare can be considered a highway in that State--claimants are 
also required to comply with these limits.
    Paragraph (g) Holder: The term holder means someone whose claim of 
a right-of-way pursuant to R.S. 2477 has been determined to be valid 
under these regulations or by a Federal court in an appropriate case 
(see definition of Judicial Determination).
    Paragraph (h) Improvement: The proposal divides all maintenance or 
construction activities that might take place on a claimed right-of-way 
into two categories: improvements and routine maintenance (which is 
defined separately). Improvements are considered any of these 
activities that expand the scope of the right-of-way; routine 
maintenance activities are any activities within that scope. 
Improvements may include activities such as paving a dirt road, 
widening a right-of-way, clearing vegetation from outside the scope of 
the right-of-way, removing materials from adjacent Federal lands, 
realignment, or new occupation of Federal land for any purpose. The 
Department does not interpret the R.S. 2477 savings provision to 
authorize improvements that expand the scope of the right-of-way as it 
existed on the latest available date. The Department requests comments 
on these issues, including comments on how specific the regulations 
should be on these points.
    Paragraph (i) Judicial Determination: The term judicial 
determination means a decision by a United States Federal court holding 
that someone validly acquired a right-of-way pursuant to R.S. 2477. The 
Department of the Interior will not give binding effect to State court 
determinations on the validity of rights-of-way pursuant to R.S. 2477 
unless the United States was a party to those cases (which was rarely 
if ever the case). However, if a claimant has received a State court 
determination that a right-of-way was validly acquired pursuant to R.S. 
2477, it is evidence that the authorized officer will consider in 
making his or her administrative determination.
    Paragraph (j) Latest Available Date: This is the latest date on 
which a party could have acquired a right-of-way pursuant to R.S. 2477. 
The latest available date is the earliest of (1) the date of repeal of 
R.S. 2477 (October 21, 1976) in the case of public lands that were 
unreserved as of that date, or (2) the date the public lands were 
reserved for public uses (such as the date of reservation of the lands 
to create a National Park), because at that point the land was no 
longer ``not reserved for public use.''
    Paragraph (k) Maintenance: Maintenance is defined in this section 
as recurring or periodic actions that repair and prevent damage to the 
right-of-way surface and keep the right-of-way surface suitable for 
travel by the intended vehicles. This term is included in order to 
provide descriptions of the usual, periodic kinds of activities that 
are conducted on public highways and must be read along with the terms 
``improvements'' and ``routine maintenance,'' both of which are defined 
separately. Maintenance activities may include: grading, planking, 
graveling, asphalting, surfacing, cuts and fills, preparation of 
drainage ditches, curbing, or installation of culverts. The Department 
requests comments on these issues.
    Paragraph (l) Public Lands Not Reserved for Public Uses: This term 
is used in R.S. 2477 and means lands owned by the United States that 
were available and open to the public under various public land laws 
that provided for disposition to the public, but that had not been set 
aside, withdrawn, reserved, dedicated, settled, preempted, entered, 
appropriated, disposed of, located, or otherwise reserved. These are 
now commonly referred to as ``unreserved public lands.'' Lands can be 
reserved by an Act of Congress, Presidential Proclamation or Executive 
Order, Secretarial Order, or other classification action.
    These proposed regulations would not apply to reserved Federal 
lands, acquired Federal lands, privately held lands, or lands held in 
fee by Indian tribes or by individual Indians or Alaska Natives.
    Paragraph (m) Public Land Records: This term refers to the records 
of the Bureau of Land Management and the Bureau's predecessor agency, 
the General Land Office. These records are relevant even where the 
claimed R.S. 2477 right-of-way crosses lands managed by the National 
Park Service or the U.S. Fish and Wildlife Service. This is because the 
right-of-way must have been acquired prior to the land being withdrawn 
or reserved as a National Park or Wildlife Refuge, that is, when the 
lands were managed by the Bureau of Land Management or its predecessor 
agency.
    Paragraph (n) Routine maintenance: This term would be defined as 
maintenance activities that are within the scope of the right-of-way as 
it existed on the latest available date. Activity that expands the 
scope is considered an ``improvement.'' Routine maintenance may include 
activities such as grading, or repairing potholes or existing culverts, 
and other minor, necessary activities that do not alter the character 
of the right-of-way or affect Federal lands. Routine maintenance 
probably would not include activities such as paving a dirt road, 
widening the right-of-way, clearing vegetation outside the scope of the 
right-of-way, removing material from adjacent Federal lands, 
realignment, or new occupation of Federal land for any purposes. The 
Department requests comments on these issues.
    Paragraph (o) Scope: Until the repeal of R.S. 2477 (or the 
reservation of the land, if earlier), claimants could acquire new 
rights-of-way or expand the scope of already acquired rights-of-way by 
constructing additional highways or by widening, realigning, or 
otherwise expanding an existing highway. After the latest available 
date, however, no new rights under R.S. 2477 could be acquired. New 
rights-of-way and new uses of Federal land require authorization under 
FLPMA or other statutory authorities. The scope of the right-of-way 
that the holder validly acquired is that which was actually in use for 
public highway purposes at the latest available date. Where State law, 
as of the latest available date, further limits the scope of a right-
of-way, these limits also apply. The Department specifically requests 
comments on its interpretation of scope, including whether or when it 
is necessary or useful for the Department to provide, as part of its 
Administrative Determination, a written description of scope and, if 
so, what parameters should be used to describe it.
    The authorized officer will generally look to the current condition 
of the right-of-way as evidence of the validly acquired scope. Any 
future expansions of scope or creation of new rights-of-way would need 
to be authorized under other available statutory provisions, such as 
Title V of FLPMA. Some expansion of scope may have occurred after the 
repeal of R.S. 2477 in 1976 (or reservation of the land if earlier) on 
some rights-of-way. Generally, the Department does not intend to treat 
these activities as trespass, unless neither the courts nor the 
Department approved the expansion and significant public values are 
threatened by the expansion. In some cases, Department officials and 
Federal courts authorized expansion of the scope of a particular right-
of-way and these authorizations will be upheld.
    Paragraph (p) Secretary: This term means the Secretary of the 
Interior.

Section 39.4  Recognition of a Validly Acquired Grant

    This section would provide that the Department will recognize 
Federal court decisions, and decisions of the authorized officer under 
these regulations, that a right-of-way was validly acquired. All 
parties that already have obtained judicial determinations that they 
hold a right-of-way pursuant to R.S. 2477 must file a copy of the 
judicial determination with the authorized officer. This will allow the 
Department to maintain current, accurate records and to manage the 
right-of-way appropriately. Any issues that are not resolved in the 
judicial determination, including the scope of a right-of-way, will be 
determined by the authorized officer under these regulations.
    This section further provides that the Department will recognize 
the scope of a right-of-way when it is described by either a Federal 
court or the authorized officer. Where a claimant has received a 
judicial determination of validity, but the court does not provide a 
specific description of its scope, the holder must file a claim to gain 
recognition of the scope.

Section 39.5  Interests Granted and Retained by the United States

    This section would enumerate the limited interests that were 
granted and acquired under R.S. 2477. The Department is considering 
whether these regulations should authorize the U.S. to receive a 
conveyance of an R.S. 2477 right-of-way from a claimant or holder, 
consistent with applicable law and subject to appropriate terms and 
conditions. Such conveyances may be mutually beneficial in cases where 
a State or county does not want to retain the legal and financial 
liability for an R.S. 2477 right-of-way, but the right-of-way provides 
important public access to or across Federal lands. The Department 
specifically requests comments on this issue.

Section 39.6  Filing Process for Administrative Determination

    Paragraph (a) Requirement to File a Claim. Claimants would be 
required to file a request for an administrative determination of the 
validity and/or scope of each R.S. 2477 claim within 2 years after the 
effective date of the final rule. By requiring claimants to file their 
claims by this date, the agency will then have a record of all 
potential rights-of-way, and will be able to consider this information 
in land use planning and other management decisions. The Department 
specifically requests comments on the length of the filing period.
    The proposed regulations require claimants to file a claim for a 
right-of-way pursuant to R.S. 2477 in all cases, even if they 
previously filed a map with the Bureau of Land Management showing the 
location of highways constructed under the authority of R.S. 2477, as 
requested by 43 CFR 2802.5(b). That regulation specifically states that 
the submission of the maps is not conclusive evidence of the existence 
of the rights-of-way.
    Paragraph (b) Determination of the Appropriate Office. If the claim 
crosses lands managed by only one agency, the claimant should file in 
the appropriate Regional or State office of that agency. However, where 
right-of-way claims cross lands managed by more than one agency, the 
proposed rule would direct the claimant to the office where the claim 
should be filed. For the convenience of claimants and the Department, 
claims for a single right-of-way should not be segmented by filing a 
claim for a portion of a right-of-way in a particular office, for any 
reason.
    Paragraph (c) Information Required in the Claim. A claim would be 
required to include sufficient information to demonstrate to the 
authorized officer that each element of R.S. 2477 and each requirement 
of these regulations has been met, and to determine the scope of a 
claimed or judicially determined right-of-way. By requiring that 
standard information be provided for all claims and allowing the 
authorized officer to determine the sufficiency of each point, the 
Department believes it is establishing a process that will be fair and 
consistent as well as flexible enough to allow for differences in 
record-keeping.
    Claimants would be required to provide general historic and 
descriptive information and any additional documentation necessary to 
demonstrate that a claimed right-of-way was validly acquired, including 
proof of construction of a highway across public lands not reserved for 
public uses, as those terms are herein defined. In order to facilitate 
speedy processing, provide manageable standards for authorized 
officers, and to make documenting a claim easier for claimants, this 
section sets forth some specific types of proof, including numerous 
kinds of public records, that are most likely to make these 
demonstrations. Obvious claims will be easily documented and easily 
approved. Although some evidence of each point is required, the 
authorized officer will weigh the evidence produced as a whole in 
making the requisite determination. Less obvious claims can be 
documented using numerous kinds or combinations of evidence, and can be 
approved if the evidence shows that the elements of R.S. 2477 and these 
regulations are met.
    If the authorized officer believes that more information is needed 
in order to make a fair and informed decision, the claimant may be 
asked to provide additional information. If a claimant has already 
received a judicial determination that an R.S. 2477 right-of-way has 
been validly acquired, the claim should include a copy of that 
determination, along with any other information necessary for an 
administrative determination of any issues not determined by the court.
    The claimant is required to provide evidence of actual construction 
(see definition of Construction). The proposed regulations illustrate 
the kinds of information that are likely to meet the requirement. The 
claimant is also required to provide sufficient evidence that the 
claimed right-of-way meets the definition of highway and was 
constructed across public lands not reserved for public uses at the 
time of the construction.
    The Department specifically requests comments on these 
requirements, whether they are sufficiently flexible, specific, and 
predictable, and on the amount of discretion provided to authorized 
officers.

Section 39.7  Effect of Failure to File a Claim

    The rule would require claimants to file claims within 2 years 
after the effective date of the final rule. The failure to file a claim 
by that date would be deemed to constitute a relinquishment of any 
rights purported to have been acquired under R.S. 2477. Any claims 
filed after that date would not be accepted or processed. A refusal to 
process a claim submitted after this date would be final agency action.
    A filing deadline is necessary to enable the land managing agencies 
to approach land use planning and other management issues with complete 
information, and to provide certainty to public land users and those 
whose title may be affected by such claims. Earlier requests for this 
information not accompanied by a filing deadline did not elicit 
significant responses. Anyone who fails to file a claim within this 
period, but who wishes to assert the existence of a right-of-way, can 
seek authorization for the use of the right-of-way under other existing 
statutory authority, such as Title V of FLPMA, 43 U.S.C. 1761-1771.
    The process in the proposed rule would provide claimants with a 
reasonable method of obtaining an administrative determination of their 
claims without undertaking the expense and time of litigation. Some 
claimants may find the existing procedures under the Title V of FLPMA, 
or other statutory authorities, to be a more familiar and speedy 
process for resolving their right-of-way claims.
    This section also provides that these regulations, from their 
effective date, shall serve as notice for purposes of the Quiet Title 
Act that the United States asserts an adverse interest in all purported 
R.S. 2477 rights-of-way that cross Federal lands. This will start the 
clock running on the applicable twelve year statute of limitations 
period for filing a quiet title action in Federal court. This provision 
is not intended to provide any additional time to a claimant if any 
prior notice has already been given of an adverse Federal claim, or 
otherwise affect any prior notice that might have been given of an 
adverse Federal claim.
    The net effect of the proposal is that claimants will have two 
years from the date of final regulations to file claims with the 
Department for administrative determinations of the claims and twelve 
years from the date of final regulations to file suit in Federal court 
to establish their rights. After these two periods lapse, all unfiled 
claims would be extinguished.
    The Department specifically requests comments on these provisions, 
including on its legal authority to require claimants to follow this 
administrative process.

Section 39.8  Processing of the R.S. 2477 Claim

    Paragraph (a) Additional Information. This section would set out 
the procedure that the authorized officer will follow in processing the 
claim. The authorized officer will review the information submitted 
with the claim to determine its sufficiency. Where the authorized 
officer determines that additional information is necessary, the 
claimant will be notified in writing and afforded an opportunity to 
furnish the information. The Department is considering whether to 
require that such additional information be supplied within a specific 
amount of time, such as 60 days, and specifically requests comments on 
this issue.
    Failure of a claimant to make reasonable and timely efforts to 
respond to a request for additional information would be deemed to 
constitute a relinquishment of any rights purported to have been 
acquired under R.S. 2477. The Department's decision not to process an 
incomplete claim will constitute final agency action.
    Paragraph (b) Consultation with other Federal agencies. If the 
claimed right-of-way also crosses lands that are under the jurisdiction 
of other Federal agencies (including agencies that are not within the 
Interior Department, such as the U.S. Forest Service or the Department 
of Defense), the authorized officer will consult with the other 
agencies. In addition, if the claimed right-of-way abuts lands managed 
by other agencies, the authorized officer will consult with these 
agencies. This consultation will allow the other agencies to offer 
input and information to the authorized officer.
    Paragraph (c) Consultation with the Bureau of Indian Affairs. This 
proposed provision details the circumstances in which the authorized 
officer will consult with the appropriate office of the Bureau of 
Indian Affairs (BIA). The purpose of this consultation is to provide 
BIA with the opportunity to contact persons or Indian tribes affected 
by these claims. The Department specifically requests comments on 
whether this process provides sufficient notice to Indians and Alaska 
Natives about right-of-way claims that may affect their lands.
    Paragraph (d) Public Notification of Filing of the Claim. The 
authorized officer will notify the public that a claim has been filed 
by publishing a notice in a newspaper once a week for three consecutive 
weeks. The notice will be published in a local newspaper that is 
distributed in the area of the claim. The paragraph specifies the 
information that will be included in the notice. The authorized officer 
will receive public comments for at least 30 days beginning after the 
last notice has appeared in the paper. The Department specifically 
requests comments on the sufficiency of this procedure and the utility 
and cost-effectiveness of other public notification procedures.
    Paragraph (e) Disqualification of the Claim. There are some 
situations in which the authorized officer will not process the claim. 
If a Federal court or a Department of the Interior agency has 
previously made a determination that a right-of-way is not a valid 
right-of-way pursuant to R.S. 2477, then the authorized officer will 
not substitute his or her decision for the previous judgment of the 
court or decision by the agency. A claimant may not make multiple 
claims or shop for a different result in different offices. The 
Department specifically requests comments on whether other types of 
Congressional or administrative determinations, such as the designation 
of Wilderness Areas or Wilderness Study Areas, should automatically 
disqualify a claim from consideration in the Department's 
administrative process proposed by these regulations.
    Paragraph (f) Review of the Claim. This paragraph directs the 
authorized officer to review the claim and determine whether the 
evidence is sufficient to establish that the claimed right-of-way was 
validly acquired. The authorized officer has some discretion to account 
for differences in record-keeping processes and to examine the overall 
claim for sufficiency. The Department specifically requests comments on 
the standards by which authorized officers will evaluate claims.
    Paragraph (g) Administrative Determination: After review of the 
information submitted by the claimant, review of the Bureau of Land 
Management official public land records for the area in question, 
consultation with affected Federal agencies, and consideration of 
public comment, the authorized officer will prepare an administrative 
determination.
    The administrative determination will not be final until the 
authorized officer obtains the concurrence of the authorized officers 
of the other Department of the Interior land managing agencies (the 
Bureau of Land Management, the National Park Service, and the U.S. Fish 
and Wildlife Service) that have jurisdiction over lands crossed by the 
claim. For example, if a claim of a right-of-way crosses both Park 
Service and Bureau of Land Management lands, the authorized officer is 
the Regional Director of the National Park Service or his or her 
designee. Before the Regional Director makes a final administrative 
determination of the claim that crosses Park Service and Bureau of Land 
Management lands, he or she will consult with and obtain the 
concurrence of the Bureau of Land Management authorized officer. 
Concurrence of other Federal agencies is not required. Having such 
``one stop shopping'' should make the process simpler and faster for 
the claimants, and ensure that all appropriate information for a 
particular claim is available for the authorized officer's 
consideration.
    The authorized officer will address issues raised during the public 
review and comment period, and determine whether to recognize an R.S. 
2477 right-of-way and, if so, its scope. The Department requests 
comment on whether or when it is necessary or useful to provide, as 
part of an Administrative Determination, a written description of scope 
and, if so, what parameters should be used to describe it.
    Paragraph (h) Public Notification of Administrative Determination. 
The authorized officer will publish a notice in a newspaper of general 
distribution in the vicinity of the claim and in the Federal Register. 
The notice will alert the public to the results of and reasons for the 
determination. A copy of the administrative determination will be sent 
to the claimant. The Department specifically requests comments on the 
sufficiency and utility of these procedures and the utility and cost-
effectiveness of other public notification procedures.

Section 39.9  Appeals Procedure From Administrative Determinations

    The proposed regulations allow any interested party, including the 
claimant, State or local governments, and other public land users to 
appeal the administrative determination to the Director of the Bureau 
or Service. This will allow for efficient processing of appeals and 
uniformity in the decisions. Appeals are required to be in writing and 
must be submitted to the Director within 30 days of the decision's 
publication. The decision of the authorized officer will take effect 30 
days after its publication in the Federal Register, unless the decision 
is properly appealed to the Director during that time.
    The Director of the appropriate Bureau or Service will consider the 
official files of the authorized officer and any evidence submitted to 
the authorized officer by any interested party. The Director may ask 
the parties or the authorized officer for additional information and 
may provide for a hearing. If the claim involves land managed by more 
than one Department of the Interior land managing agency, the Director 
will consult with and obtain the concurrence of the Director of the 
other agency or agencies before making a final decision on the appeal.
    The Department specifically requests comments on whether a 
different type of appeals process should be considered; for example, 
whether a hearing should be required or allowed if requested, whether 
appeals should be sent to a hearing board or other bureau official 
rather than a bureau director, whether decisions should be effective 
immediately or await action on any administrative appeal, and whether 
appeals should be limited to parties that participate in the 
determination of a claim.

Section 39.10  Interim Activity

    This section would provide guidance on the activities that 
claimants can engage in before a final administrative determination is 
issued or while any administrative appeal is pending. The Department 
will allow interim activities on all rights-of-way that are currently 
maintained by claimants, in accordance with these regulations, until 
final agency determinations are made. The Department specifically 
requests comments on whether these procedures will provide a workable 
framework for necessary activities of claimants while adequately 
protecting public resources.
    The principal authors of this proposed rule are Ted D. Stephenson, 
Chief, Branch of Lands and Minerals Operations, Utah State Office, Ted 
G. Bingham, Deputy State Director for Operations, Arizona State Office, 
Sue A. Wolf, Chief, Branch of Lands, Alaska State Office, Bill Wiegand, 
Idaho State Office, and Ron Montagna, Realty Specialist, Division of 
Lands, Washington Office, assisted by the staff of the Division of 
Legislation and Regulatory Management, all of the BLM; Tony Sisto, 
Ranger, Ranger Activities Division of the National Park Service; Duncan 
Brown, Counselor to the Division of Refuges, U.S. Fish and Wildlife 
Service; and Karen Mouritsen, Barry Roth, Renee Stone, and Ruth Ann 
Storey from the Office of the Solicitor.
    It is hereby determined that this proposed rule does not constitute 
a major Federal action significantly affecting the quality of the human 
environment, and that no detailed statement pursuant to Section 
102(2)(C) of the National Environmental Policy Act of 1969 (NEPA) (42 
U.S.C. 4332(2)(C)) is required. The Bureau of Land Management has 
determined that this proposed rule would not create environmental 
impacts. No critical element of the human environment would be affected 
because the proposed rule would merely establish a process for 
determining whether claimed rights-of-way across Federal lands were 
validly acquired pursuant to R.S. 2477. No new rights-of-way would be 
authorized under the proposed rule. The Department would use these 
regulations to determine, in individual situations, whether valid 
existing rights-of-way exist under a law repealed eighteen years ago. 
If such rights are determined to exist under these regulations, they 
will be subject to regulation under other laws, and NEPA is applicable 
to these processes.
    This rule has been reviewed under Executive Order 12866.
    The Department has determined under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) that the proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
The rule principally affects governmental entities that own and operate 
public highway rights-of-way that cross Federal land.
    The Department certifies that this proposed rule does not represent 
a governmental action capable of interference with constitutionally 
protected property rights. There would be no taking of private property 
by this rule. The entities principally affected by the rule are public 
in nature and the only proceedings authorized by the proposal are 
assessments of whether valid rights exist. Therefore, as required by 
Executive Order 12630, the Department of the Interior has determined 
that the proposed rule would not cause a taking of private property.
    The Department has certified to the Office of Management and Budget 
that this proposed rule meets the applicable standards provided in 
section 1(a) and 2(b)(2) of Executive Order 12788.
    The information collection requirements contained in this rule have 
been submitted to the Office of Management and Budget for approval as 
required by 44 U.S.C. 3501 et seq. The collection of this information 
will not be required until it has been approved by the Office of 
Management and Budget. The information would be collected to permit the 
authorized officer to determine the validity and scope of rights-of-way 
claimed to have been acquired under R.S. 2477. The information would be 
used to make this determination.
    Public reporting burden for this information is estimated to 
average ________ hours per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden estimate 
or any other aspect of this collection of information, including 
suggestions for reducing the burden, to the Information Collection 
Clearance Officer (873), Bureau of Land Management, 1849 C Street, 
N.W., Washington, DC 20240, or the Service Information Collection 
Officer, U.S. Fish and Wildlife Service, MS-224 ARLSQ, 1849 C Street, 
N.W., Washington, D.C. 20240, or Chief, Management Analysis and Control 
Branch, Management Services Division, National Park Service, P.O. Box 
37127, Washington, D.C. 20013-7127, and the Office of Management and 
Budget, Paperwork Reduction Project, 1004-xxxx, Washington, DC 20503.

List of Subjects in 43 CFR Part 39

    Highways and roads, Public lands--rights-of-way, Reporting and 
record-keeping requirements.

    For the reasons set forth in the preamble, and under the 
authorities stated below, subtitle A of title 43 is proposed to be 
amended by adding a new part 39 to read as follows:

PART 39--REVISED STATUTE 2477 RIGHTS-OF-WAY

Sec.
39.1  Purpose.
39.2  Applicability and authority.
39.3  Definitions.
39.4  Recognition of a validly acquired right-of-way.
39.5  Interests granted and retained by the United States.
39.6  Filing process for administrative determination.
39.7  Effect of failure to file a claim.
39.8  Processing of claims.
39.9  Appeals procedure from administrative determinations.
39.10  Interim activity.
39.11  Information collection. [Reserved]

    Authority: 43 U.S.C. 1201, 1733 and 1740.


Sec. 39.1  Purpose.

    The purposes of the regulations in this part are to:
    (a) Establish procedures for the orderly and timely processing of 
claims for rights-of-way pursuant to R.S. 2477 over lands managed by 
the Bureau of Land Management, National Park Service, and U.S. Fish and 
Wildlife Service;
    (b) Define key terms;
    (c) Establish public notice and appeal processes of claims for 
rights-of-way pursuant to R.S. 2477; and
    (d) Provide for the use of rights-of-way validly acquired pursuant 
to R.S. 2477, consistent with the management of adjacent and underlying 
Federal lands.


Sec. 39.2  Applicability and authority.

    The regulations in this part apply to right-of-ways claimed 
pursuant to R.S. 2477 on Federal lands administered by the Bureau of 
Land Management, National Park Service, and U.S. Fish and Wildlife 
Service, all land managing agencies under the U.S. Department of the 
Interior. R.S. 2477, Section 8 of the Act of July 26, 1866, 43 U.S.C. 
932, granted a right-of-way for the construction of highways on public 
lands not reserved for public uses. R.S. 2477 was repealed by Section 
706(a) of the Federal Land Policy and Management Act of 1976 (FLPMA), 
43 U.S.C. 1701-1784. Existing rights-of-way were not terminated. 43 
U.S.C. 1769(a). FLPMA created a new process for the issuance of rights-
of-way to provide access to and across Bureau of Land Management and 
U.S. Forest Service lands. 43 U.S.C. 1761-1771.
    (a) Department of the Interior. The Secretary of the Interior has 
broad authority to promulgate regulations for the management of 
Department of the Interior lands pursuant to 43 U.S.C. 1201 and 1457.
    (b) Bureau of Land Management. Sections 302(b) and 310 of the 
Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 
1732(b) and 1740, authorize the Bureau of Land Management to promulgate 
regulations to prevent unnecessary or undue degradation of lands 
managed by the Bureau of Land Management and to implement the purposes 
of FLPMA and other public land laws. Section 603(c), 43 U.S.C. 1782(c), 
requires the Secretary of the Interior to manage wilderness study 
areas, by regulation or otherwise, to prevent unnecessary or undue 
degradation and to prevent impairment of wilderness characteristics.
    (c) U.S. Fish and Wildlife Service. 16 U.S.C. 668dd authorizes the 
Secretary, acting through the Director of the U.S. Fish and Wildlife 
Service, to issue regulations relating to public use of any area within 
the National Wildlife Refuge System. In addition, 16 U.S.C. 460k-3 
authorizes the Secretary to issue regulations relating to public use of 
national wildlife refuges, game ranges, national fish hatcheries, and 
other conservation areas administered by the Department for fish and 
wildlife purposes. With respect to any unit of the National Refuge 
System located in Alaska, the Alaska National Interest Lands 
Conservation Act (ANILCA) requires the Secretary to prescribe 
regulations to ensure that activities carried out under any use or 
easement granted ``under any authority'' are compatible with the 
purposes for which the refuge was established. ANILCA, Section 304(b), 
Pub. L. 96-487, 94 Stat. 2371, 2395 (1980).
    (d) National Park Service. The National Park Service Organic Act, 
16 U.S.C. 1-4, provides that the purpose of the National Park Service 
is to conserve the scenery and the natural and historic objects and the 
wildlife therein and to provide for the enjoyment of the same in such 
manner and by such means as will leave them unimpaired for the 
enjoyment of future generations. The Secretary has specific authority 
to make rules and regulations in furtherance of these purposes. 16 
U.S.C. 3.


Sec. 39.3  Definitions.

    The following definitions apply to this part:
    (a) Administrative determination means the decision issued by an 
authorized officer under this part that determines the validity and/or 
scope of a claim of a right-of-way pursuant to R.S. 2477.
    (b) Authorized officer means the State Director of the Bureau of 
Land Management, or the Regional Director of the U.S. Fish and Wildlife 
Service, or the Regional Director of the National Park Service, or 
their respective designee, with jurisdiction over the Federal land over 
which a claim pursuant to R.S. 2477 lies.
    (c) Claim means the filing of appropriate documentation under this 
part asserting the existence of and a property interest in a right-of-
way pursuant to R.S. 2477 across lands managed by the Department of the 
Interior. Claim also means the filing of appropriate documentation 
under this part showing that a judicial determination has been made of 
the existence of a right-of-way pursuant to R.S. 2477 across lands 
managed by the Department of the Interior and asserting any rights not 
expressly recognized in the judicial determination.
    (d) Claimant means any person or governmental entity that asserts 
the existence of and a property interest in a right-of-way pursuant to 
R.S. 2477 across lands managed by the Department of the Interior under 
this part or in any Federal court action. Where State law, in effect on 
the latest available date, further limits the class of persons who may 
own or operate highways, these limits also apply.
    (e) Construction means an intentional physical act or series of 
intentional physical acts that were intended to, and that accomplished, 
preparation of a durable, observable, physical modification of land for 
use by highway traffic. Where State law, in effect on the latest 
available date, further limits the definition of construction, these 
limits also apply.
    (f) Highway means a thoroughfare that is currently and was prior to 
the latest available date used by the public, without discrimination 
against any individual or group, for the passage of vehicles carrying 
people or goods from place to place. Where State law, in effect on the 
latest available date, further limits the definition of highway, these 
limits also apply.
    (g) Holder means a claimant who has received an administrative or 
judicial determination that its claim to a right-of-way pursuant to 
R.S. 2477 is valid.
    (h) Improvement means any maintenance or construction activity that 
expands the scope of the right-of-way.
    (i) Judicial determination means a decision by a United States 
District or Territorial court, or higher United States Federal court, 
that holds that a claimant holds a right-of-way pursuant to R.S. 2477.
    (j) Latest available date means the latest date on which a right-
of-way pursuant to R.S. 2477 could have been acquired, which shall be 
prior to:
    (1) October 21, 1976, in the case of lands that were unreserved 
public lands as of that date; or
    (2) The date the public lands were reserved for public uses (such 
as the date of withdrawal from entry or designation of public use by 
statute, Presidential Proclamation or Executive Order, Secretarial 
Order, or administrative decision) in the case of public lands reserved 
for public uses before October 21, 1976.
    (k) Maintenance means recurring or periodic actions that repair or 
prevent damage to an existing right-of-way surface and keep an existing 
right-of-way surface suitable for travel by the intended vehicles.
    (l) Public Lands Not Reserved for Public Uses or Unreserved Public 
Lands means lands owned by the United States that were available and 
open to the public under various public land laws that provided for 
disposition to the public, but that had not yet been set aside, 
dedicated, withdrawn, reserved, settled, preempted, entered, 
appropriated, disposed of, located, or otherwise reserved.
    (1) The terms ``public lands not reserved for public uses'' and 
``unreserved public lands'' do not include:
    (i) Lands that were set aside, dedicated for specific purposes, 
withdrawn, or otherwise reserved from disposition under the public land 
laws by an Act of Congress, Presidential Proclamation or Executive 
Order, Secretarial Order, or classification actions authorized by 
statute that specified that the land would be used for a specific 
purpose or that prevented certain uses;
    (ii) Lands that were settled, preempted, entered, appropriated, 
disposed of, located, or otherwise reserved to private parties or 
States under the public land laws or mining laws;
    (iii) Lands that were owned by the United States, disposed of to a 
private party, and later reacquired by the United States (unless 
expressly re-opened prior to the latest available date);
    (iv) Lands that were acquired by the United States from a party 
other than a foreign sovereign (unless expressly re-opened prior to the 
latest available date); or
    (v) Other reserved lands.
    (2) Lands are removed from the status of ``public lands not 
reserved for public uses'' on the date of the withdrawal or other 
reservation.
    (3) If a settlement, claim, or entry does not proceed to patent, is 
declared invalid, is abandoned or relinquished, or the United States 
revokes the withdrawal or other reservation, the land may return to the 
status of ``public lands not reserved for public uses,'' on the date on 
which the public land records so reflect that status.
    (m) Public land records means the records of the Bureau of Land 
Management or its predecessor agency, the General Land Office.
    (n) Routine maintenance means maintenance activities that are 
within the scope of the right-of-way.
    (o) Scope means the width, surface treatment, and location actually 
in use for public highway purposes at the latest available date, unless 
otherwise determined by a United States Federal court. Where State law, 
in effect on the latest available date, further limits the scope of a 
right-of-way, these limits also apply.
    (p) Secretary means the Secretary of the Interior.


Sec. 39.4  Recognition of a validly acquired right-of-way.

    (a) The Department of the Interior will recognize that a right-of-
way was validly acquired pursuant to R.S. 2477 only if that 
determination is made by one of the following:
    (1) A United States District or Territorial court, or higher United 
States Federal court; or
    (2) The authorized officer in accordance with this part.
    (b) The Department of the Interior will recognize the scope of a 
right-of-way pursuant to R.S. 2477 only if it is described by one of 
the following:
    (1) A United States District or Territorial court, or higher United 
States Federal court; or
    (2) The authorized officer in accordance with this part.


Sec. 39.5  Interests granted and retained by the United States.

    (a) Interests validly acquired pursuant to R.S. 2477. Upon valid 
acquisition, a claimant received a right-of-way for public access for 
highway purposes. The right to acquire new rights under R.S. 2477 was 
terminated as of the latest available date. A holder may perform 
routine maintenance. Routine maintenance, construction, improvement, 
use, and operation of the right-of-way shall be subject to regulation.
    (b) Interests retained by the United States. R.S. 2477 granted a 
right-of-way upon the construction of a highway across public land not 
reserved for public uses. All other rights were retained by the United 
States, including all rights not actually acquired prior to the latest 
available date. These rights include but are not limited to continuing 
rights to regulate, enter, and authorize other uses of the right-of-
way. The United States retains the authority to regulate routine 
maintenance, construction, improvement, use, and operation of the 
right-of-way.


Sec. 39.6  Filing process for administrative determination.

    (a) Requirement to file a claim. All claimants shall file their 
claims with the appropriate office in the State or Region in which the 
claim lies, not later than [30 days plus 2 years after date of 
publication of final rule]. All holders of judicial determinations 
shall file a claim, including a copy of the judicial determination and 
any other necessary information, with the appropriate office in any 
State or Region in which the claim lies, not later than [30 days plus 2 
years after date of publication of final rule]. Any aspects of a 
judicial determination not addressed by the court, including scope, 
will be determined under this part.
    (b) Determination of appropriate office. The appropriate office is 
determined by the following:
    (1) If any part of the claim crosses lands managed by the National 
Park Service, the appropriate office is the Regional Office of the 
National Park Service. Contact the nearest National Park for the 
address of the appropriate Regional Office.
    (2) If any part of the claim crosses lands managed by the U.S. Fish 
and Wildlife Service, and does not cross lands managed by the National 
Park Service, the appropriate office is the Regional Office of the U.S. 
Fish and Wildlife Service. See 50 CFR 29.21-2(c) for the address of the 
appropriate Regional Office.
    (3) For claims that cross lands managed by the Bureau of Land 
Management, but not the National Park Service or the U.S. Fish and 
Wildlife Service, the appropriate office will be the State Office of 
the Bureau of Land Management. See 43 CFR 1821.2-1 for the address of 
the appropriate State Office.
    (c) Information required in claim. A claim shall contain sufficient 
information to demonstrate to the authorized officer that each element 
of R.S. 2477 and each requirement of this part have been met (unless 
the claimant already holds a judicial determination of validity), and 
any additional information necessary to determine the scope of the 
right-of-way. At a minimum the claim shall contain:
    (1) The name and affiliation of the claimant;
    (2) The address where service may be made on the claimant, 
including name(s) or agent(s) authorized to act for it, and the 
statute, resolution, ordinance, or other warrant authorizing such 
officer(s) or agent(s) to act on behalf of the claimant;
    (3) A general description of the highway on which the claim is 
based, including at least the local name, State or county number, 
beginning and ending points, type of surface, width and other relevant 
information, and identification of the claim on maps in sufficient 
detail to allow location on the ground by a competent engineer or 
surveyor.
    (4) A summary of the history of the construction and use of the 
right-of-way up to the present.
    (5) A statement of whether any profiles, constructions, as-built or 
similar detail maps or diagrams of the right-of-way are available and, 
if so, where such material may be viewed or copies obtained;
    (6) If the right-of-way has been the subject of a prior judicial or 
administrative determination, the case or file identification number, 
results of the last action taken, and the dates thereof.
    (7) If applicable, a citation to relevant State law in effect on 
the latest available date;
    (8) Evidence of construction, which shall include evidence of each 
part of the definition of construction, including:
    (i) Intentional physical acts, which may be shown by evidence that 
the roadbed was prepared with the use of tools, either hand tools, 
power tools, or machinery; and
    (ii) Preparation of a durable, observable, physical modification of 
land, which may be shown by records of expenditures for, or other 
records of, highway construction activities or maintenance after the 
initial construction at necessary and appropriate intervals so that the 
right-of-way was a relatively continuous route for travel;
    (9) Evidence that the claimed right-of-way is a highway, which 
shall include evidence of each part of the definition of highway, 
including:
    (i) Public use, which may be shown by records establishing that the 
right-of-way is currently and was prior to the latest available date 
officially acknowledged, funded, or maintained by a State or local 
government public highway management agency;
    (ii) Vehicular use, which may be shown by historic evidence or 
records of use for commercial or personal purposes by vehicles 
appropriate to the time and terrain; and
    (iii) The thoroughfare served as a connection between public 
destinations, which may be shown by describing the places that the 
right-of-way connects or provides access to; and
    (10) Evidence that the land over which a claim of a right-of-way 
pursuant to R.S. 2477 lies was public land not reserved for public uses 
at the time of construction.


Sec. 39.7  Effect of failure to file a claim.

    The failure to file a claim by [30 days plus 2 years after date of 
publication of final rule] shall be deemed to constitute a 
relinquishment of any rights purported to have been acquired under R.S. 
2477. Claims received after that date will not be processed. A decision 
refusing to process a claim submitted after the above date will 
constitute final agency action. These regulations, from [the effective 
date of the final rule] shall serve as notice for purposes of the Quiet 
Title Act, 28 U.S.C. 2409a, that the United States claims an adverse 
interest in any purported rights-of-way traversing Federal lands 
claimed pursuant to R.S. 2477; provided, however, that this provision 
will not interfere with or affect any prior notice that might have been 
given of an adverse Federal claim.


Sec. 39.8  Processing of claims.

    (a) Additional information. The authorized officer will review the 
claim to determine whether it is complete and provides sufficient 
information to allow a review of the claim. Where the authorized 
officer determines that additional information is necessary, he or she 
will notify the claimant in writing of the deficiencies and afford a 
reasonable opportunity for the claimant to supply such information. 
Failure of a claimant to respond to a request for additional 
information shall be deemed to constitute a relinquishment of any 
rights purported to have been acquired under R.S. 2477. The authorized 
officer will not process claims if the claimant fails to respond to a 
request for additional information. A decision refusing to process 
incomplete claims will constitute final agency action.
    (b) Consultation with other Federal agencies. The authorized 
officer will consult with any other Federal agencies that have 
management authority over lands crossed by the claim.
    (c) Consultation with the Bureau of Indian Affairs. The authorized 
officer shall consult with the appropriate Area Office of the Bureau of 
Indian Affairs in any case in which a claim crosses land in any of the 
following categories:
    (1) Land that is individually owned by Indians or Alaska Natives or 
any interest therein that is held in trust by the United States for the 
benefit of individual Indians or Alaska Natives and land or any 
interest therein held by individual Indians or Alaska Natives subject 
to Federal restrictions against alienation or encumbrance;
    (2) Tribal land, which is land or any interest therein, title to 
which is held by the United States in trust for an Indian tribe, or 
title to which is held by any tribe subject to Federal restrictions 
against alienation or encumbrance, including such land reserved for 
Bureau of Indian Affairs administrative purposes. Also included in this 
category are lands held by the United States in trust for an Indian 
corporation chartered under Section 17 of the Act of June 18, 1934, 48 
Stat. 988, 25 U.S.C. 477; or
    (3) Government owned land, which is land owned by the United States 
and under the jurisdiction of the Secretary and that was acquired or 
set aside solely for the use and benefit of Indians or Alaska Natives; 
or land for which an allotment application is pending and that was not 
included in the lands set forth in paragraphs (c) (1) and (2) of this 
section; or land that has been selected by but not yet conveyed to 
corporations created pursuant to the Alaska Native Claims Settlement 
Act, Pub. L. 92-203, 7-8, 85 Stat. 688, 691-4 (1971).
    (d) Public notification of filing of a claim. The authorized 
officer will publish in a newspaper of local distribution in the 
vicinity of the claim once a week for 3 consecutive weeks a notice of 
filing of the claim. The public comment period will begin the day after 
the last publication date and last for a minimum of 30 days. The notice 
of filing will include:
    (1) The name and mailing address of the claimant;
    (2) The name or number and location of the right-of-way claimed to 
have been validly acquired pursuant to R.S. 2477 as identified on the 
claimant's formal public highway records;
    (3) The office in which the claim was filed;
    (4) Notice of availability of the claim for public inspection and 
review;
    (5) The address where public comments may be mailed; and
    (6) The date after which public comments will not be considered.
    (e) Disqualification of the claim. The authorized officer will not 
process a claim if the subject right-of-way has been previously 
judicially or administratively determined not to be a validly acquired 
right-of-way pursuant to R.S. 2477.
    (f) Review of the claim. The authorized officer will review the 
claim and determine whether it contains sufficient evidence to prove 
that the right-of-way was validly acquired pursuant to R.S. 2477.
    (g) Administrative determination.
    (1) After review of the information submitted by the claimant, 
review of Bureau of Land Management official public land records, 
review of any applicable State law, consultation with affected Federal 
agencies, and consideration of public comment, if any, the authorized 
officer will prepare an administrative determination.
    (2) The administrative determination will not be final until it is 
concurred in by the authorized officer of the Bureau of Land 
Management, U.S. Fish and Wildlife Service, and National Park Service 
that has jurisdiction over lands crossed by the claim.
    (3) The administrative determination will include a finding of 
whether a right-of-way pursuant to R.S. 2477 on lands in the 
jurisdiction of the Bureau of Land Management, U.S. Fish and Wildlife 
Service, and National Park Service was validly acquired, and, if so, 
will describe the scope of the right-of-way.
    (4) The final administrative determination will be sent to the 
claimant.
    (h) Public notification of administrative determination. The 
authorized officer will publish a notice of the administrative 
determination in a newspaper of general distribution in the vicinity of 
the claim and in the Federal Register. A copy of the administrative 
determination will be sent to the claimant.


Sec. 39.9  Appeals procedure from administrative determinations.

    (a) Administrative determinations of the authorized officer will be 
put into full force and effect 30 days after publication in the Federal 
Register unless an appeal under this section is filed during that time.
    (b) Any person or entity adversely affected by an administrative 
determination under this part may appeal the administrative 
determination to the Director of the Bureau or Service of the 
authorized officer.
    (1) The appeal shall be in writing and shall be filed with the 
Director within 30 days of the date of publication in the Federal 
Register. If the appellant is other than the claimant, the appellant 
shall send a copy of the appeal to the claimant at the same time.
    (2) The appeal shall contain:
    (i) The name, address, telephone number, and interest of the person 
filing the appeal;
    (ii) A statement of the issue or issues being appealed; and
    (iii) A concise statement explaining why the appellant believes 
that the authorized officer's administrative determination is factually 
or legally wrong.
    (c) The official files of the authorized officer and any statements 
or documents submitted by the claimant or the public on which the 
decision of the authorized officer was based shall constitute the 
record on appeal. If the appellant is other than the claimant, the 
claimant shall be offered an opportunity to comment on the appellant's 
statements made under paragraph (b)(2) of this section.
    (d) If the Director considers the record inadequate to support the 
decision on appeal, he or she may require the production of such 
additional evidence or information as deemed appropriate, and may 
provide for a hearing as deemed appropriate.
    (e) The Director will promptly render a decision on the appeal. The 
decision will not be effective until it is concurred in by the Director 
of each Department of the Interior land managing agency that has 
jurisdiction over lands crossed by the claim. The decision will be in 
writing and will set forth the reasons for the decision. The decision 
will be sent to the appellant, and if the appellant is other than the 
claimant, to the claimant.
    (f) The decision of the Director will be the final agency action of 
the Department of the Interior.


Sec. 39.10  Interim activity.

    (a) During the processing of a claim and any administrative appeal, 
a claimant may perform routine maintenance.
    (b) A claimant performing routine maintenance shall notify the 
appropriate office at least 3 business days in advance of the date the 
work is to be performed. Routine maintenance is subject to the approval 
of the appropriate office. The appropriate office as it applies to this 
section is the area or district office of the Bureau of Land 
Management, the Superintendent of the National Park System Unit, or the 
Manager of the National Wildlife Refuge, that has jurisdiction over the 
lands crossed by the portion of the claim on which the routine 
maintenance will take place.
    (c) Interim activity authorized under this section shall be limited 
to those rights-of-way currently maintained by the claimant and after 
[30 days plus 2 years after date of publication of final rule] only 
those routes actually claimed by a claimant.


Sec. 39.11  Information collection. [Reserved]

George T. Frampton Jr.,
Assistant Secretary of the Interior.
Nancy K. Hayes,
Acting Assistant Secretary of the Interior.
[FR Doc. 94-18622 Filed 7-29-94; 8:45 am]
BILLING CODE 4310-84-P, 4310-55-P, 4310-70-P