[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 468 Introduced in Senate (IS)]
<DOC>
115th CONGRESS
1st Session
S. 468
To establish a procedure for resolving claims to certain rights-of-way.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 28, 2017
Mr. Flake (for himself, Mr. McCain, Mr. Heller, and Mr. Hatch)
introduced the following bill; which was read twice and referred to the
Committee on Energy and Natural Resources
_______________________________________________________________________
A BILL
To establish a procedure for resolving claims to certain rights-of-way.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Historic Routes Preservation Act''.
SEC. 2. PURPOSE.
The purpose of this Act is to achieve judicial and administrative
efficiency for, and to reduce the costs typically associated with,
resolving right-of-way claims under R.S. 2477 by--
(1) reducing the burden on Federal courts by establishing
administrative procedures and evidentiary standards for the
processing of R.S. 2477 right-of-way claims; and
(2) establishing--
(A) a deadline for filing R.S. 2477 right-of-way
claims;
(B) mandatory procedures for considering and acting
on the R.S. 2477 right-of-way claims; and
(C) uniform legal and evidentiary standards of
proof of public acceptance of R.S. 2477 right-of-way
claims.
SEC. 3. DEFINITIONS.
In this Act:
(1) Abandon or abandonment.--The terms ``abandon'' and
``abandonment'' mean normal action by the governing body of a
claimant taken at a public meeting pursuant to notice that
declares all right, title, and claim to a R.S. 2477 right-of-
way is relinquished.
(2) Acceptance or accepted.--The terms ``acceptance'' and
``accepted'' mean--
(A) a positive or affirmative action by a State or
county governmental authority on or before October 21,
1976, including--
(i) a formal resolution or declaration of
ownership; or
(ii) the inclusion of a highway in an
official road map;
(B) the construction, improvement, or maintenance
of a highway by a State or county governmental
authority on or before October 21, 1976; or
(C) the continuous use of a highway by the public
for a period of not fewer than 5 consecutive years
ending on a date that is on or before October 21, 1976.
(3) Claim.--The term ``claim'' means the assertion of
public acceptance of a R.S. 2477 right-of-way filed under
section 4(a)(1).
(4) Claimant.--The term ``claimant'' means any State,
county, political subdivision or agency of a State, company, or
other person asserting the public acceptance of a right-of-way
under R.S. 2477.
(5) Construction.--The term ``construction'' means the
physical activity reasonably necessary, advisable, or desirable
to allow continuous public use over a highway according to the
intended mode of travel or transportation, which may be
established by the use of any tools or equipment, or other
means, including mere usage.
(6) Continuous public use.--The term ``continuous public
use'' means the uninterrupted use of a highway by the public
for passage as often as generally regarded by the public to be
convenient or necessary depending on the character of the land
and the nature of the use.
(7) Disclaimer and relinquishment.--The term ``disclaimer
and relinquishment'' means any type of deed or equivalent
document in a form suitable for recordation that is approved
and issued by the Secretary disclaiming and relinquishing the
interest of the Federal Government in a R.S. 2477 right-of-way.
(8) Evidence.--The term ``evidence'' means any testimony,
object, or document described in section 5 that would be
reliable, authentic, probative, and persuasive in Federal
district court under the Federal Rules of Evidence that are in
effect on the date of enactment of this Act.
(9) Highway.--The term ``highway'' means any road, way, or
other land surface route of travel that the public has the
right of use for passage, whether by carriage, animal, foot, or
non-motorized or motorized vehicle.
(10) Improvement.--The term ``improvement'' means--
(A) the widening of a highway;
(B) the horizontal or vertical realignment of a
highway;
(C) the installation (as distinguished from
cleaning, repair, or replacement in kind) of a bridge,
culvert, or other drainage structure or conduit; or
(D) any significant change in the surface
composition of a highway.
(11) Maintenance.--The term ``maintenance'' means the
preservation of an existing highway, including--
(A) the physical upkeep of the highway;
(B) the repair of wear or damage to the highway
from natural or other causes;
(C) the restoration of the shape of the highway;
and
(D) the gradation of the highway or other measures
to ensure that the shape of the highway permits
drainage.
(12) Public land.--The term ``public land'' means land--
(A) that is owned, controlled by, or subject to the
jurisdiction of the Federal Government for the benefit
of the public; and
(B) that was not reserved on the date on which a
R.S. 2477 right-of-way grant was accepted.
(13) Public or public user.--
(A) In general.--The terms ``public'' or ``public
user'' mean all natural persons, including Federal
lessees, permitees, licensees, invitees, and any other
natural person that holds an authorization or is
otherwise allowed to enter or use public land.
(B) Exceptions.--The terms ``public'' or ``public
user'' do not include any Federal agent or employee
acting within the scope of the employment of the
Federal agency or employee.
(14) R.S. 2477.--The term ``R.S. 2477'' means section 2477
of the Revised Statutes (43 U.S.C. 932) repealed by section 706
of the Federal Land Policy and Management Act of 1976 (Public
Law 94-579; 90 Stat. 2793).
(15) R.S. 2477 right-of-way.--The term ``R.S. 2477 right-
of-way'' means an open-ended grant or dedication of land by the
United States for rights-of-way allowing public use and
passage, which could be accepted.
(16) Reserved.--
(A) In general.--The term ``reserved'' means action
by the Secretary, before the earlier of a R.S. 2477
right-of-way acceptance or October 21, 1976--
(i) to withdraw land from the public
domain;
(ii) to make the land unavailable for
appropriation under public land laws; and
(iii) to dedicate the land by the United
States to a specific public purpose, such as a
park, military establishment, wilderness area,
tribal land, or Federal enclave, that does not
rely on a R.S. 2477 right-of-way for the public
purpose.
(B) Exclusion.--The term ``reserved'' does not
apply to an action of the Secretary with respect to the
designation of a wilderness study area, an area of
critical environmental concern, or land with wilderness
characteristics.
(17) Scope.--The term ``scope'' means the established width
of a R.S. 2477 right-of-way as of the date of acceptance,
including the area needed to meet the public convenience or
safety or the exigencies of increased travel based on the
traditional use of a highway (including permissible
improvements, realignments, or relocation), and is not limited
to the disturbed surface of the highway.
(18) Secretary.--The term ``Secretary'' means the Secretary
with management jurisdiction over land owned or controlled by
the United States on which a R.S. 2477 right-of-way is claimed
to be located.
SEC. 4. FILING OF CLAIM.
(a) Filing.--
(1) In general.--Except as provided in paragraph (2),
during the 25-year period beginning on the date of enactment of
this Act, a claimant asserting the public acceptance of a
right-of-way granted under R.S. 2477 may file a claim under
this section.
(2) Exception.--Notwithstanding paragraph (1), a claimant
may not file a claim under paragraph (1) if the claimant filed
a notice of an intent to file suit with respect to a claim
asserting the public acceptance of a right-of-way granted under
R.S. 2477 under section 2409a(m) of title 28, United States
Code, before the date of enactment of this Act.
(b) Form; Contents.--
(1) Form.--Not later than 30 days after the date of
enactment of this Act, the Secretary shall establish a form to
be used by claimants for filing claims under this section.
(2) Contents.--A claim filed under subsection (a)(1) shall
include--
(A) evidence supporting the claim; and
(B) proof of notice or attempted notice by the
claimant under subsection (d).
(c) Place of Filing.--A claimant shall file a claim in the
appropriate State or regional location designated by the Secretary for
the filing of claims under this section.
(d) Notice.--
(1) In general.--Except as provided in paragraph (3), a
claimant shall provide notice of the right-of-way claim by--
(A) at least once per week during the 2-week period
immediately preceding the filing of the claim,
publishing in a newspaper authorized to publish public
notice under the laws of the State in which the longest
lineal part of the claimed R.S. 2477 right-of-way is
located, a general summary of the claim, including the
location and general description of the claimed R.S.
2477 right-of-way; and
(B) not later than 30 days after the date on which
the claim is filed, providing, or reasonably attempting
to provide, written notice of the claim to all owners
of land contiguous to the boundary of the claimed
right-of-way.
(2) Attempted notice.--The reasonable attempt of a claimant
to provide written notice under paragraph (1)(B) shall be
considered to be sufficient notice under this subsection if the
claimant files with Secretary verification of the reasonable
attempt under written oath or affirmation.
(3) Exception.--Notwithstanding paragraph (1), a claimant
shall be considered to have given sufficient notice under this
subsection if the claimant provides notice of an intent to file
suit with respect to the claimed R.S. 2477 right-of-way under
section 2409a(m) of title 28, United States Code, on or after
the date of enactment of this Act.
(e) Effect of Failure To Meet Filing Deadline or Requirements.--If
a claimant fails to comply with the requirements of--
(1) subsection (a)(1), the failure shall be considered to
be an automatic irrevocable abandonment of any R.S. 2477 right-
of-way claim; or
(2) subsection (b), (c), or (d), the claim filed by the
claimant shall not be processed until the date on which the
failure to comply with those subsections is cured.
(f) Statue of Limitations.--Except as provided in subsection
(a)(1), any statute of limitations for asserting the public acceptance
of the R.S. 2477 right-of-way is waived.
SEC. 5. EVIDENCE AND FINAL DECISION.
(a) Burden of Proof.--A claimant shall have the burden to prove by
a preponderance of the evidence the acceptance of a right-of-way under
R.S. 2477.
(b) Presumptions.--
(1) In general.--Except in a case in which the land
underlying the claimed R.S. 2477 right-of-way was reserved
before the earlier of construction of a highway on the right-
of-way, or October 21, 1976, acceptance (including continuous
public use, location, construction, and scope of the R.S. 2477
right-of-way) shall be conclusively verified, proven, and
established on filing, under oath or affirmation by a claimant
attesting to the authenticity and accuracy, of--
(A) at least 2 types of evidence from among the
category of evidence described in subsection (c)(1)
relating to the R.S. 2477 right-of-way; or
(B) all 3 types of evidence described in
subparagraph (A) through (C) of subsection (c)(2), in
the case of demonstrating scope and acceptance before
October 21, 1976.
(2) Copies.--A copy of an original document may be used as
evidence in the place of the original document under this
section if the copy is accompanied by a written declaration,
under oath by a custodian, owner, or author, that the copy is
an accurate representation of the material terms of the
original document.
(3) Hearsay.--Hearsay contained in a document or otherwise
provided shall be considered reliable, admissible, and
probative for the purposes of this Act.
(4) Grant withdrawal.--Evidence produced by the United
States that establishes that the United States reserved the
land underlying the R.S. 2477 right-of-way before acceptance
conclusively establishes withdrawal of the Federal grant for
the R.S. 2477 right-of-way.
(c) Description of Categories of Evidence.--For the purposes of
actions under this Act, there are 2 categories of evidence that shall
be considered:
(1) Category 1.--Category 1 evidence consists of each of
the following types of evidence:
(A) A center line or other survey conducted by the
Federal Government or duly licensed land surveyor,
applying generally accepted survey standards and
procedures or the Bureau of Land Management Manual of
Surveying Instructions applicable to surveys before
October 21, 1976, clearly showing the public use,
control, construction, location, direction, beginning
and end points, length, width, and type of surface of
the R.S. 2477 right-of-way as of date certain.
(B) Maps, plats, maintenance records (including
actual or estimated costs of maintenance), photographs,
GIS or global positioning data, or other computer-
generated images showing the location of the R.S. 2477
right-of-way prepared, made, edited, kept, or relied
on, generally or on a case-by-case basis, by the
Federal Government, a State or local government, an
institution of higher education, college, or a public
or private organization historically, customarily or
regularly engaged in the preparation, retention,
analysis, or expert interpretation of contemporary or
historic maps.
(C) Historical or other records of government
entities or records constructed, obtained, or kept by a
government in the ordinary course of business,
including Federal, State, local, and territorial
records, such as records of the Departments of the
Interior, Agriculture, or Defense, the Bureau of Land
Management, the Forest Service, the Natural Resources
Conservation Service, the Soil Conservation Service,
General Land Office, Federal centers or enclaves, the
Smithsonian Institution, and the Library of Congress.
(2) Category 2.--Category 2 evidence consists of each of
the following types of evidence:
(A) In addition to the records described in
paragraph (1)(C), other historical records, including
original documents, authenticated copies, facsimiles,
and computer-transmitted images reliably showing
evidence of construction (including tools used, if
any), location (including aerial photographs,
topographical maps, and government road maps),
fixtures, and other structures, or maintenance by a
State or local government of the R.S. 2477 right-of-way
before October 21, 1976.
(B) Written or transcribed oral statements from at
least 2 persons, given under oath before a notary
public, court recorder, judge or any other government
official authorized by law to administer oaths or
otherwise authenticated reciting reliable knowledge of
the facts that establish the acceptance by public usage
of the R.S. 2477 right-of-way before October 21, 1976.
(C) A title opinion prepared by a duly licensed
title examiner prepared in accordance with generally
accepted title standards, establishing the title,
location, and dimensions of the R.S. 2477 right-of-way.
(d) Scope.--The scope of a R.S. 2477 right-of-way shall be the
scope of the R.S. 2477 right-of-way as of the date of enactment of this
Act.
(e) Determination of Abandonment.--
(1) In general.--Not later than 90 days after the date on
which a R.S. 2477 right-of-way is conclusively established as
accepted under subsection (b)(1), the Secretary shall
determine, in writing, whether the R.S. 2477 right-of-way has
been previously abandoned by the claimant.
(2) Failure to make determination.--The failure of the
Secretary to make a written determination within the 90-day
period described in paragraph (1) shall conclusively establish
that the right-of-way has not been abandoned.
(3) Final agency action.--The determination by the
Secretary under paragraph (1), or the failure to make the
determination by the date described in that paragraph, shall be
a final agency action, subject to appeal, in accordance with
section 6.
(f) Disclaimer and Relinquishment Required.--
(1) In general.--Subject to subsection (e), not later than
120 days after the date on which evidence to establish
acceptance of a R.S. 2477 right-of-way has been filed under
this section, the Secretary shall deliver to the claimant a
written document disclaiming and relinquishing the right and
interest of the United States in and to the R.S. 2477 right-of-
way.
(2) Form.--The disclaimer and relinquishment under
paragraph (1) shall be in a form that allows the recording of
the disclaimer and relinquishment in State and local real
estate records.
(3) Recording.--The disclaimer and relinquishment under
paragraph (1) shall--
(A) be recorded in the public land records under
the jurisdiction of the Secretary; and
(B) conclusively establish the title of the
claimant to use the R.S. 2477 right-of-way.
(4) Review.--The document delivered by, and any actions of,
the Secretary under paragraph (1)--
(A) shall only be subject to review as provided in
section 6; and
(B) shall not be subject to--
(i) quiet title proceedings under section
6(d) or any other provision of law; or
(ii) any other judicial or administrative
de novo or on the record reviews, claims,
actions, or proceedings.
(5) Federal register notice of final agency action.--Not
later than 30 days after the date on which the document is
delivered under paragraph (1), the Secretary shall publish in
the Federal Register notice of the action by the Secretary
under that paragraph.
SEC. 6. JUDICIAL REVIEW.
(a) Jurisdiction.--
(1) Filing.--If a claimant seeks to appeal the denial by
the Secretary of a claimed R.S. 2477 right-of-way under this
Act, the claimant shall file an appeal of the denial in the
district court of the United States for the judicial district
in which the longest lineal segment of the claimed R.S. 2477
right-of-way is located.
(2) Exclusive jurisdiction.--A district court described in
paragraph (1) shall have the exclusive jurisdiction to decide
the appeal on the record before the Secretary regarding the
claimed R.S. 2477 right-of-way, subject only to appeal or
review on the record by a court with appropriate Federal
appellate jurisdiction.
(b) Filing.--Any action initiated under subsection (a) shall be
filed not later than 30 days after the date on which the Secretary
provides written notice to the claimant of the denial by the Secretary
of the claimed R.S. 2477 right-of-way.
(c) Prior Adjudication Not Affected.--Nothing in this Act affects a
final settlement or final judgment in any court of competent
jurisdiction before the date of enactment of this Act in which the
United States was a party in determining rights to a R.S. 2477 right-
of-way.
(d) Actions to Quiet Title Unaffected.--
(1) In general.--Subject to this section and section 5,
Federal court actions to quiet R.S. 2477 titles that involve
R.S. 2477 claims previously filed under this Act in which a
disclaimer and relinquishment are pending or have been issued
are null and void.
(2) Allowable actions.--Any quiet title action not
prohibited under paragraph (1) shall be filed during or before
the date described in section 4(a)(1).
SEC. 7. APPLICABLE LAW AND TIME EXTENSIONS.
(a) Application of State and Federal Law.--
(1) In general.--This Act shall apply with respect to
conclusively establishing the acceptance, scope, validity, or
abandonment of a R.S. 2477 right-of-way.
(2) Preemption.--In the case of any inconsistency or
conflict between the provisions of this Act and State law, this
Act shall apply in determining the acceptance, scope, validity,
and abandonment of a R.S. 2477 right-of-way.
(b) Extension.--The Secretary shall grant a 1-time extension of a
deadline established by this Act, for a maximum period of 1 year, for
good cause, if the claimant submits to the Secretary, not later than 30
days before the date on which the deadline expires, a written request
for the extension signed by the claimant under oath or affirmation.
SEC. 8. IMPLEMENTATION REQUIRED.
(a) In General.--Subject to section 4(e)--
(1) not later than 90 days after the date of enactment of
this Act, the Secretary shall complete all policies,
procedures, delegations, forms, and any other action necessary
to implement this Act; and
(2) on the completion of the actions described in paragraph
(1), begin processing claims under this Act.
(b) Injunction; Liability.--The duties and obligations of, or
failure to perform by, the Secretary under this section--
(1) are enforceable by injunction or restraining order ;
and
(2) may result in official and personal civil liability.
SEC. 9. EFFECT; APPLICABILITY.
(a) Effect on Other Laws.--Nothing in this Act affects or
modifies--
(1) title V of the Federal Land Policy and Management Act
of 1976 (43 U.S.C. 1761 et seq.); or
(2) title XI of the Alaska National Interest Lands
Conservation Act (16 U.S.C. 3161 et seq.).
(b) Excluded Land.--Nothing in this Act applies to or affects--
(1) the use of Department of Defense land or land with
respect to which the Department of Defense shares control or
jurisdiction;
(2) land that is not owned by the United States;
(3) land held in trust by the Secretary of the Interior for
any Indian tribe; or
(4) land within the outer boundary of--
(A) a National Park; or
(B) a congressionally designated National
Wilderness Area.
SEC. 10. REPEAL OF RESTRICTIONS ON REGULATIONS.
Section 108 of the Department of the Interior and Related Agencies
Appropriations Act, 1997 (Public Law 104-208; 110 Stat. 3009-200) is
repealed.
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