(Extensions of Remarks - April 03, 2003)

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[Extensions of Remarks]
[Pages E671-E672]
From the Congressional Record Online through the Government Publishing Office []



                            HON. MARK UDALL

                              of colorado

                    in the house of representatives

                        Thursday, April 3, 2003

  Mr. UDALL of Colorado. Mr. Speaker, I am today introducing a bill to 
establish a process for orderly resolution of one of the most important 
problems associated with management of the Federal lands--claims for 
rights-of-way under a provision of the Mining Law of 1866.
  That provision was later embodied in section 2477 of the Revised 
Statutes, and so is usually called R.S. 2477. It granted rights-of-way 
for the construction of highways across Federal lands not reserved for 
public uses. It was one of many 19th-century laws that assisted in the 
opening of the West for resource development and settlement.
  More than a century after its enactment, R.S. 2477 was repealed by 
the Federal Land Policy and Management Act of 1976, often called 
``FLPMA,'' and was replaced with a modern and comprehensive process for 
establishing rights-of-way on Federal lands.
  However, FLPMA did not revoke valid existing rights established under 
R.S. 2477--and, unfortunately, it also did not set a deadline for 
people claiming to have such rights to file their claims.
  As a result, there is literally no way of knowing how many such 
claims might be filed or what Federal lands--or even lands that once 
were Federal but now belong to other owners--might be subject to such 
claims. But I have no doubt that potential claims under R.S. 2477 could 
involve thousands of square miles of Federal lands, not to mention 
lands that now are private property or belong to the states or other 
  This is obviously a serious problem. It also is the way things used 
to be with regard to another kind of claim on Federal lands--mining 
claims under the Mining Law of 1872. However, that problem was resolved 
by section 314 of FLPMA, which gave people 3 years to record those 
claims and provided that any claim not recorded by the deadline would 
be deemed to have been abandoned.
  The courts have upheld that approach. I think it should have been 
applied to R.S. 2477 claims as well. If it had been, R.S. 2477 would be 
a subject for historians, not a headache for our land managers or a 
nightmare for private property owners.
  I think that now, finally--more than a quarter of a century since it 
was repealed--the time has come to let R.S. 2477 sleep in peace. And 
that is the purpose of the bill I am introducing today.
  My bill is based on legislation proposed by Secretary of the Interior 
Bruce Babbitt in 1997, but is somewhat broader because it would apply 
not just to States or their political subdivisions with R.S. 2477 
claims, but also to those individuals now able to assert such claims. 
It follows the sound example of FLPMA by providing that any R.S. 2477 
claim not filed with the government within 4 years will be considered 
  I think this is more than reasonable, because those interested in 
claiming rights-of-way under R.S. 2477 already have had ample time to 
decide whether they want to file a claim.
  The bill also recognizes that as things stand now, R.S. 2477 claims 
are a potential threat to the National Parks, National Wildlife 
Refuges, units of the National Trails and National Wild and Scenic 
Rivers Systems, designated wilderness areas, and wilderness study areas 
as well as to lands that the United States has sold or otherwise 
transferred to other owners. It specifically addresses this threat by 
providing that any claim for such lands will be considered to have been 
abandoned when the lands were designated for conservation-purpose 
management or when they were transferred out of federal ownership 
unless a claimant can establish by clear and convincing evidence that 
there was a well-established right-of-way whose use for highway 
purposes was intended to be allowed to continue.
  The bill also spells out what information must be included in a 
claim, how claims are to be considered administratively, and the rules 
for judicial review of administrative decisions about the validity of 
R.S. 2477 claims.
  Mr. Speaker, this is a fair, balanced bill. It gives claimants under 
R.S. 2477 ample opportunity to come forward and seek to have their 
claims upheld, with an opportunity to seek ultimate redress from the 
courts if necessary. At the same time, it gives the American people--
the owners of the Federal lands--and private property owners assurance 
that the time will come when they will know what they own, without 
having to worry about new R.S. 2477 claims being made against their 
  In my opinion, such legislation is long overdue, and deserves the 
support of every Member of Congress.
  For the information of our colleagues, I am attaching a brief outline 
of the main provisions of the bill.

             Outline of R.S. 2477 Rights-of-Way Act of 2003

       The bill is based on a legislative proposal sent to 
     Congress by Secretary of the Interior Bruce Babbitt in 1997. 
     Here is a section-by-section outline of its provisions:
       Section 1 provides a short title, has findings about the 
     bill's background, and states its purpose of setting a 
     deadline for filing claims and specifying how claims will be 
       Section 2 defines key terms used in the bill.
       Section 3 deals with the filing of claims for rights-of-way 
     based on R.S. 2477:
       Subsection (a) sets a deadline of 4 years after enactment 
     for filing.
       Subsection (b) specifies where claims must be filed: in the 
     state or regional office of a federal agency responsible for 
     management of claimed Federal lands; with the commanding 
     officer of a military installation subject to a claim; or 
     with the Bureau of Land Management if the claimed lands are 
     no longer in Federal ownership.
       Subsection (c) provides that claims not filed by the 
     deadline shall be deemed abandoned--this parallels Section 
     314 of the Federal Land Policy and Management Act of 1976, 
     which required recordation of unpatented mining claims. A 
     claimant would have 3 years to file a lawsuit challenging 
     the effect of this provision on a claim.
       Subsection (d) provides for coordination among federal 
       Subsection (e) provides that R.S. 2477 claims by non-
     Federal parties can only be validated in accordance with the 
     process established by the bill.
       Section 4 provides procedures for handling R.S. 2477 
       Subsection (a) specifies that claimants have the burden of 
     proof and that claims for

[[Page E672]]

     lands in conservation, wilderness study, or inventoried 
     roadless areas or for lands not owned by the Federal 
     government are presumed to have been abandoned unless a 
     claimant can show that continued use of a right-of-way for 
     highway purposes was clearly intended to continue after 
     conservation designation or transfer of title by the United 
       Subsection (b) specifies what information must be included 
     in a filing by a claimant.
       Subsection (c) specifies procedures for review of claims by 
     federal officials.
       Subsection (d) requires reviewing officials to consult 
     regarding pending claims.
       Subsection (e) provides for issuance of a draft decision 
     about a claim's validity, followed by a period of public 
       Subsection (f) provides for issuance of a final decision on 
     a claim within one year after release of the draft decision.
       Subsection (g) requires a lawsuit challenging a final 
     agency decision on a claim to be filed within 3 years after 
     the decision and limits judicial review to review of the 
     administrative record. It also provides that the Federal 
     Government can decide to purchase a right-of-way that a court 
     determines belongs to another party.
       Subsection (h) requires a successful claimant to file 
     information about the right-of-way with BLM and the relevant 
     State within 5 years, and specifies that a failure to do so 
     will constitute abandonment of the right-of-way.
       Subsection (i) provides that the Federal government can 
     choose to purchase a right-of-way determined to belong to 
     another party.
       Section 5 specifies that administrative decisions about 
     claims are to be based on federal law and state laws that are 
     consistent with federal law. It also provides that prior 
     adjudications of R.S. 2477 rights-of-way are to be 
       Section 6 provides that nothing in the bill will affect 
     provisions of FLPMA or the Alaska Lands Act related to