To provide a means of resolving claims regarding the continued existence of rights-of-way under former section 2477 of the Revised Statutes, which was repealed by the Federal Land Policy and Management Act of 1976.

April 3, 2003

Mr. UDALL of Colorado introduced the following bill; which was referred to the Committee on Resources

To provide a means of resolving claims regarding the continued existence of rights-of-way under former section 2477 of the Revised Statutes, which was repealed by the Federal Land Policy and Management Act of 1976.

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

SECTION 1. SHORT TITLE, FINDINGS, AND PURPOSE.

(a) SHORT TITLE- This Act may be cited as the `R.S. 2477 Rights-of-Way Act of 2003'.

(b) FINDINGS- Congress finds the following:

(1) In 1866, to assist in the opening of the west for resource development and settlement, Congress enacted a law that granted rights-of-way for the construction of highways across public land not reserved for public uses. That law was later included in the Revised Statutes as section 2477 and thus became popularly known as R.S. 2477.

(2) Section 706 of the Federal Land Policy and Management Act of 1976 repealed R.S. 2477, but did not terminate valid rights-of-way existing on the date of the enactment of the Act.

(3) R.S. 2477 did not require notifying the Federal Government regarding utilization of specific grants of highway rights-of-way or documentation in the public land records regarding claims for such grants. Therefore, the number and location of claimed highway rights-of-way under R.S. 2477 are unknown. However, it is estimated that potential claims for such rights-of-way could involve thousands of square miles of Federal lands, including lands now included in the National Forest System, National Park System, National Wildlife Refuge System, and National Wilderness Preservation System.

(4) Historically, highway rights-of-way established under R.S. 2477 did not present many problems to Federal land managers because the existence of highways constructed on such rights-of-way was obvious and unquestioned. In recent years, controversies have arisen as to whether certain claimed routes are valid highway rights-of-way under R.S. 2477. This causes uncertainty both for parties claiming to possess a property interest in such routes and for the agencies responsible for managing Federal lands.

(5) Controversies related to claims under R.S. 2477 have been exacerbated by the absence of uniform Federal standards for review of such claims and by court decisions that have failed to provide consistent guidance. In addition, some recent State laws, including laws adopted after the repeal of R.S. 2477, are inconsistent with the statutory requirements. To address these problems, in 1992, Congress directed the Secretary of the Interior to study the history, impacts, and status of R.S. 2477 rights-of-way, study alternatives to such rights-of-way, and make recommendations for assessing claims for such rights-of-way.

(6) Pursuant to this directive, officials of the Department of the Interior consulted with interested parties in the public land States and held public hearings in Alaska, California, Idaho, Oregon, Montana, Nevada, and Utah. In addition, the Department received and reviewed more than 4,000 pages of written comments.

(7) In June, 1993, the Department of the Interior released the report of the results of its study to Congress. The report highlighted the need for a process whereby validly accepted rights-of-way could be recognized and administered consistently and fairly and recommended establishment of a uniform administrative procedure and standards for determining within a specified period which claimed rights-of-way were validly accepted under the R.S. 2477 grant from the Federal Government.

(8) It is in the interest of both claimants and Federal land managers to provide consistent, coherent guidance regarding evaluation and timely resolution of claims for rights-of-way based on R.S. 2477.

(c) PURPOSE- The purpose of this Act is to establish a deadline for filing of claims for highway rights-of-way under R.S. 2477 and to provide a process for consideration and resolution of such claims.

SEC. 2. DEFINITIONS.

In this Act:

(1) The term `abandonment' means an intentional relinquishment of a right, title, or claim to a right-of-way pursuant to R.S. 2477, which may be inferred from a preponderance of the evidence showing--

(A) the absence of continued public use of the right-of-way for highway purposes on and after the latest available date;

(B) the failure of the claimant to perform lawful routine maintenance on the right-of-way since the latest available date; or

(C) other conduct by the claimant inconsistent with the use of the right-of-way by highway traffic.

(2) The term `appropriate Federal agency' means any Federal agency having management jurisdiction over lands owned or controlled by the United States upon which a R.S. 2477 right-of-way is claimed to exist.

(3) The term `authorized officer' means--

(A) the Secretary of the Federal Department having management jurisdiction over lands owned or controlled by the United States upon which the longest lineal portion of a R.S. 2477 right-of-way is claimed to exist or that Secretary's designee in the Federal agency having management jurisdiction over such lands; or

(B) with respect to a claim involving former Federal lands, the Secretary of the Interior or that Secretary's designee.

(4) The term `claim' means the appropriate documentation filed under section 3 asserting the existence of, and a property interest in, a right-of-way pursuant to R.S. 2477.

(5) The term `claimant' means any State, political subdivision of a State, or any other person asserting the existence and validity of a right-of-way pursuant to R.S. 2477, except a person who, as of the date of enactment of this Act, was barred from bringing a civil action against the United States under section 2409a of title 28, United States Code, to adjudicate the title to the relevant lands.

(6) The term `conservation system unit' means--

(A) a unit of the National Park System;

(B) a unit of the National Wildlife Refuge System;

(C) a component of the National Wild and Scenic Rivers System;

(D) a component of the National Trails System;

(E) a component of the National Wilderness Preservation System;

(F) a National Monument; or

(G) any part of the National Landscape Conservation System.

(7) The term `construction' means an intentional physical act or series of intentional physical acts that were intended to prepare, and that accomplished preparation of, a highway by a durable, observable, physical modification of the land along the entire claimed route to facilitate the safe and efficient passage of four-wheeled highway vehicles.

(8) The term `former Federal lands' means lands title to which has passed from the United States to another owner.

(9) The term `highway' means a thoroughfare along a specific identified route that, prior to the latest available date, was used by the public, without discrimination against any individual or group, for the passage of four-wheeled highway vehicles carrying people or goods from one inhabited place to another inhabited place.

(10) The term `inventoried roadless area' means one of the areas identified in the set of inventoried roadless areas maps contained in the Forest Service Roadless Areas Conservation, Final Environmental Impact Statement, Volume 2, dated November 2000.

(11) The term `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--

(A) October 21, 1976, in the case of lands that were unreserved public lands as of that date; or

(B) the date the public lands were reserved for public uses (such as 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.

(12) The terms `public lands not reserved for public uses' and `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 lands that had not yet been set aside, dedicated, withdrawn, reserved, settled, preempted, entered, appropriated, or disposed of, or on which claims had not been located.

(13) The term `R.S. 2477' means section 2477 of the Revised Statutes, which was codified as section 932 of title 43, United States Code, prior to its repeal by section 706 of the Federal Land Policy and Management Act of 1976 (Public Law 94-579; 90 Stat. 2793).

(14) The term `wilderness study area' means Federal land identified as having wilderness characteristics in a land and resources management plan for a unit of the National Forest System or public lands being managed pursuant to the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.) so as not to impair their suitability for preservation as wilderness through inclusion in the National Wilderness Preservation System.

SEC. 3. FILING OF CLAIM FOR DETERMINATION OF VALIDITY OF R.S. 2477 RIGHT-OF-WAY.

(a) OPPORTUNITY TO FILE CLAIM- During the four-year period beginning on the date of the enactment of this Act, a claimant asserting the existence and validity of a right-of-way pursuant to R.S. 2477 across lands owned or controlled by the United States or former Federal lands may file a claim to that effect pursuant to this section.

(b) PLACE OF FILING-

(1) GENERAL RULE- A claimant shall file the claim in the State or regional office of each appropriate Federal agency having management jurisdiction over lands upon which the R.S. 2477 right-of-way is claimed to exist.

(2) DEFENSE LANDS- In the case of a claimed R.S. 2477 right-of-way across lands owned or controlled by the Department of Defense, the claim shall be filed with the commanding officer of the military installation having real property accountability for such lands.

(3) FORMER FEDERAL LANDS- In the case of a claim involving former Federal lands, the claim shall be filed with the relevant State office of the Bureau of Land Management and a notice of the claim shall be provided to the current owner of record of the lands.

(c) EFFECT OF FAILURE TO MEET FILING DEADLINE OR REQUIREMENTS-

(1) ABANDONMENT- The failure of a claimant to timely file a claim under subsection (a) or with the appropriate Federal agencies under subsection (b) shall be deemed to constitute an abandonment and a relinquishment of any rights purported to have been acquired under R.S. 2477 related to that claim.

(2) DETERMINATION AND NOTIFICATION- If the authorized officer determines that a claimant has not met the filing deadline or the other filing requirements, the authorized officer shall notify the claimant and all other parties of record in writing and shall notify each appropriate Federal agency that no further action on the claim is required. The determination of the authorized officer shall constitute final agency action, subject to review in the United States District Court for the District of Columbia or the United States District Court in the district within which the longest lineal portion of the claimed R.S. 2477 right-of-way lies.

(3) FILING- Any action initiated in district court pursuant to paragraph (2) shall be filed not later than three years after the date of the written notice to the claimant from the authorized officer.

(4) LIMITED JUDICIAL REVIEW- Judicial review of a determination of an authorized officer under paragraph (2) shall be limited to a review of the administrative record.

(d) COORDINATION AMONG APPROPRIATE FEDERAL AGENCIES- In the review and processing of a valid claim under section 4, the authorized officer shall be responsible for coordinating with each appropriate Federal agency subject to the claim.

(e) LIMITATION- Except with regard to a claim filed pursuant to this Act during the period specified in subsection (a), no officer, agency, or court of the United States shall take any action to affirm the validity of any assertion that any person or entity other than the United States has a property interest in a right-of-way pursuant to R.S. 2477.

SEC. 4. ADMINISTRATIVE DETERMINATION OF VALIDITY OF R.S. 2477 RIGHT-OF-WAY CLAIM.

(a) BURDEN OF PROOF-

(1) BURDEN ON CLAIMANT- A claimant shall have the burden to prove that the grant of a right-of-way pursuant to R.S. 2477 was validly accepted and not abandoned.

(2) PRESUMPTION- Any claim or portion of a claim involving lands that, as of the filing of the claim, are within a conservation system unit, an inventoried roadless area, or a wilderness study area or are former Federal lands shall be presumed to have been abandoned on the date on which the lands became part of the conservation unit or inventoried roadless area, became subject to management as a wilderness study area, or became former Federal lands (whichever applies) unless the claiment establishes, by clear and convincing evidence, that routine lawful maintenance and use of the lands for highway purposes on and after that date were so open and notorious that management of such lands by the United States or the transfer of ownership by the United States was intended to be subject to continuation of the use of the lands for highway purposes.

(b) CONTENTS OF CLAIM- A claim shall contain sufficient information to permit the authorized officer to determine whether each element of R.S. 2477 was met. At a minimum, the claim shall contain the following:

(1) The name, affiliation, address, phone number (and facsimile number if available) of the claimant.

(2) The names, affiliations, addresses, phone numbers (and facsimile numbers if available) of all persons or entities with property interests in land over which the claimed R.S. 2477 right-of-way lies.

(3) Proof of notification of the claim to all such persons and entities.

(4) Identification of the entity that would have a property interest in the claimed R.S. 2477 right-of-way.

(5) A description of the highway on which the claim is based, including identification of the highway on an official State or local map, if available, the name and number of the highway, if available, beginning and ending points, a center-line survey conducted in accordance with the Bureau of Land Management Manual of Surveying Instructions (1973), type of surface, and width.

(6) Evidence of construction of the highway, including evidence of use of tools and of expenditures for highway construction.

(7) Evidence that the claimed route is a highway, including evidence of routine maintenance by a State or local government public highway management agency and of public vehicular use.

(8) A statement of whether any photographs, 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.

(9) If the right-of-way has been the subject of a prior judicial or administrative determination, the case or file identification number, the results of the last action taken, and the dates thereof.

(c) REVIEW OF CLAIM-

(1) REVIEW BY AUTHORIZED OFFICER- The authorized officer shall review the evidence submitted by a claimant to determine whether a claim of a R.S. 2477 right-of-way contains sufficient evidence to prove construction and use of a highway over unreserved public lands prior to the latest available date.

(2) DETERMINATIONS- If the authorized officer determines that a claim contains sufficient evidence to prove construction and use of a highway over unreserved public lands prior to the latest available date, the authorized officer shall determine whether the R.S. 2477 right-of-way was subject to abandonment by the claimant.

(d) CONSULTATION-

(1) IN GENERAL- In conducting the review of a claim under subsection (c), the authorized officer shall consult with the appropriate Federal Agencies, as well as States and Tribal governments (and in the case of Alaska, Native Corporations, as defined in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602)) that own or control lands affected by the claimed R.S. 2477 right-of-way.

(2) NONSTATE CLAIMS- In conducting the review of a claim brought by a claimant other than a State or political subdivision thereof, the authorized officer shall consult with each State and political subdivision thereof within which lands affected by the claim are located.

(e) DRAFT ADMINISTRATIVE DETERMINATION-

(1) PREPARATION OF DRAFT- After review of all the evidence submitted with respect to a claim, review of Bureau of Land Management official public land records, consultation under subsection (d), and concurrence by the appropriate Federal agencies, the authorized officer shall prepare a draft administrative determination regarding the claim.

(2) PROPOSED FINDINGS- The draft administrative determination shall include proposed findings regarding the following:

(A) Whether the grant of the right-of-way pursuant to R.S. 2477 over public lands not reserved for public uses was validly accepted prior to the latest available date.

(B) If the grant of the R.S. 2477 right-of-way over public lands not reserved for public uses was validly accepted prior to the latest available date, whether the R.S. 2477 right-of-way was subject to abandonment by the claimant.

(C) If the grant of the R.S. 2477 right-of-way over public lands not reserved for public uses was validly accepted prior to the latest available date and was not subject to abandonment, a description of the accepted right-of-way, including its width, type of surface, and the route between the beginning and ending points of the right-of-way, as of the latest available date.

(3) SUBMISSION- The authorized officer shall submit the draft administrative determination to the claimant and publish a notice of the draft administrative determination in a newspaper of general distribution in the vicinity of the claim and in the Federal Register. The notice shall request public comment only on the draft administrative determination. The public comment period shall last for a minimum of 60 days.

(f) FINAL ADMINISTRATIVE DETERMINATION-

(1) REVIEW, CONSULTATION, AND PREPARATION- Within one year after the date of publication of the notice of the draft administrative determination in the Federal Register, the authorized officer shall review the public comment, if any, and shall consult with each appropriate Federal agency. Upon concurrence by each appropriate Federal agency, the authorized officer shall prepare the final administrative determination.

(2) FINDINGS- The final administrative determination shall include the same findings required under subsection (e)(2).

(3) SUBMISSION- The authorized officer shall submit the final administrative determination to the claimant and publish a notice of the final administrative determination in the Federal Register.

(g) FINAL AGENCY ACTION; REVIEW-

(1) AVAILABILITY OF JUDICIAL REVIEW- A final administrative determination made pursuant to subsection (f) shall constitute final agency action subject to review in the United States District Court for the District of Columbia or the United States District Court in the district within which the longest lineal portion of the claimed R.S. 2477 right-of-way lies.

(2) FILING- Any action initiated in district court pursuant to paragraph (1) shall be filed not later than three years after the date of the publication in the Federal Register of the notice of the final administrative determination.

(3) LIMITED JUDICIAL REVIEW- Judicial review of a final administrative determination shall be limited to a review of the administrative record.

(4) ELECTION TO ACQUIRE- If judicial review of an administrative determination results in a determination that the grant of a right-of-way pursuant to R.S. 2477 was validly accepted and not abandoned, the United States nevertheless may retain such exclusive possession or control of the lands traversed by such right-of-way or any part thereof as it may elect, upon payment to the claimant of an amount the district court in the same action determines to be just compensation for such exclusive possession or control.

(h) RECORDING REQUIREMENTS REGARDING VALID R.S. 2477 RIGHT-OF-WAY-

(1) SURVEY AND FILING- Within five years after the date of publication in the Federal Register of a final administrative determination recognizing a valid R.S. 2477 right-of-way, the claimant shall file the center-line survey of such right-of-way with the State office of the Bureau of Land Management and with the appropriate land records of the State.

(2) ABANDONMENT- The failure of any claimant to complete a center-line survey and to file such survey with the Bureau of Land Management within the time period specified in paragraph (1) shall be deemed to constitute an abandonment and a relinquishment of any rights purported to have been acquired under R.S. 2477.

(i) OPTION TO ACQUIRE- If, within the period specified in subsection (h)(1), a center-line survey is filed for a right-of-way across lands owned or controlled by the United States, the authorized officer, on behalf of the United States, may elect to retain such exclusive possession or control of the lands traversed by such right-of-way or any part thereof as the authorized officer may elect, upon payment by the United States to the claimant of an amount the United States District Court for the district within which the longest lineal portion of the lands involved are located determines to be just compensation for such exclusive possession or control.

SEC. 5. LAW GOVERNING ADMINISTRATIVE DETERMINATIONS.

(a) RELATIONSHIP OF FEDERAL AND STATE LAW- In making an administrative determination of whether the grant of a right-of-way pursuant to R.S. 2477 over unreserved public lands was validly accepted prior to the latest available date, and in determining the scope of any right-of-way so validly accepted, the authorized officer shall apply Federal law and the law of the State in which the claimed right-of-way is located, and which was in effect on the latest available date, to the extent that such State law is consistent with Federal law.

(b) EFFECT OF PRIOR ADJUDICATIONS- If the validity of any portion of a claimed R.S. 2477 right-of-way across lands owned or controlled by the United States has been adjudicated by a court of competent jurisdiction before the date of the enactment of this Act in a matter in which the United States was a party, the authorized officer shall recognize such adjudication.

SEC. 6. RELATIONSHIP TO FEDERAL LAND POLICY AND MANAGEMENT ACT OF 1976 AND ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT.

Nothing in this Act is intended to, or shall be constructed to, affect, change, alter, or modify title V of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1761 et seq.) or title XI of the Alaska National Interest Lands Conservation Act (16 U.S.C. 3161 et seq.).

END