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
To establish a procedure for resolving claims to certain rights-of-way.
This Act may be cited as the
Historic Routes Preservation Act .
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—
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
a deadline for filing R.S. 2477 right-of-way claims;
mandatory procedures for considering and acting on the R.S. 2477 right-of-way claims; and
uniform legal and evidentiary standards of proof of public acceptance of R.S. 2477 right-of-way claims.
In this Act:
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.
Acceptance or accepted
The terms acceptance and accepted mean—
a positive or affirmative action by a State or county governmental authority on or before October 21, 1976, including—
a formal resolution or declaration of ownership; or
the inclusion of a highway in an official road map;
the construction, improvement, or maintenance of a highway by a State or county governmental authority on or before October 21, 1976; or
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.
The term claim means the assertion of public acceptance of a R.S. 2477 right-of-way filed under section 4(a)(1).
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.
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.
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.
Disclaimer and relinquishment
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.
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.
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.
The term improvement means—
the widening of a highway;
the horizontal or vertical realignment of a highway;
the installation (as distinguished from cleaning, repair, or replacement in kind) of a bridge, culvert, or other drainage structure or conduit; or
any significant change in the surface composition of a highway.
The term maintenance means the preservation of an existing highway, including—
the physical upkeep of the highway;
the repair of wear or damage to the highway from natural or other causes;
the restoration of the shape of the highway; and
the gradation of the highway or other measures to ensure that the shape of the highway permits drainage.
The term public land means land—
that is owned, controlled by, or subject to the jurisdiction of the Federal Government for the benefit of the public; and
that was not reserved on the date on which a R.S. 2477 right-of-way grant was accepted.
Public or public user
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.
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.
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).
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.
The term reserved means action by the Secretary, before the earlier of a R.S. 2477 right-of-way acceptance or October 21, 1976—
to withdraw land from the public domain;
to make the land unavailable for appropriation under public land laws; and
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.
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.
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.
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.
Filing of claim
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.
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.
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.
A claim filed under subsection (a)(1) shall include—
evidence supporting the claim; and
proof of notice or attempted notice by the claimant under subsection (d).
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.
Except as provided in paragraph (3), a claimant shall provide notice of the right-of-way claim by—
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
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.
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.
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.
Effect of failure To meet filing deadline or requirements
If a claimant fails to comply with the requirements of—
subsection (a)(1), the failure shall be considered to be an automatic irrevocable abandonment of any R.S. 2477 right-of-way claim; or
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.
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.
Evidence and final decision
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.
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—
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
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.
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.
Hearsay contained in a document or otherwise provided shall be considered reliable, admissible, and probative for the purposes of this Act.
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.
Description of categories of evidence
For the purposes of actions under this Act, there are 2 categories of evidence that shall be considered:
Category 1 evidence consists of each of the following types of evidence:
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.
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.
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.
Category 2 evidence consists of each of the following types of evidence:
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.
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.
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.
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.
Determination of abandonment
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.
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.
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.
Disclaimer and relinquishment required
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.
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.
The disclaimer and relinquishment under paragraph (1) shall—
be recorded in the public land records under the jurisdiction of the Secretary; and
conclusively establish the title of the claimant to use the R.S. 2477 right-of-way.
The document delivered by, and any actions of, the Secretary under paragraph (1)—
shall only be subject to review as provided in section 6; and
shall not be subject to—
quiet title proceedings under section 6(d) or any other provision of law; or
any other judicial or administrative de novo or on the record reviews, claims, actions, or proceedings.
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.
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.
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.
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.
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.
Actions to quiet title unaffected
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.
Any quiet title action not prohibited under paragraph (1) shall be filed during or before the date described in section 4(a)(1).
Applicable law and time extensions
Application of State and Federal law
This Act shall apply with respect to conclusively establishing the acceptance, scope, validity, or abandonment of a R.S. 2477 right-of-way.
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.
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.
Subject to section 4(e)—
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
on the completion of the actions described in paragraph (1), begin processing claims under this Act.
The duties and obligations of, or failure to perform by, the Secretary under this section—
are enforceable by injunction or restraining order ; and
may result in official and personal civil liability.
Effect on other laws
Nothing in this Act affects or modifies—
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.).
Nothing in this Act applies to or affects—
the use of Department of Defense land or land with respect to which the Department of Defense shares control or jurisdiction;
land that is not owned by the United States;
land held in trust by the Secretary of the Interior for any Indian tribe; or
land within the outer boundary of—
a National Park; or
a congressionally designated National Wilderness Area.
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.