Historic Routes Preservation Act
This bill allows any state, county, political subdivision or agency of a state, company, or other person asserting the public acceptance of an open-ended grant or dedication of land by the United States for a right-of-way allowing public use and passage for the construction of highways over public lands to file a claim if such claimant, before enactment of this bill (1) filed a notice of an intent to file suit with respect to a claim asserting the public acceptance of such a right-of-way; or (2) filed suit with respect to such a claim under the Quiet Title Act.
The bill sets forth (1) a procedure for conclusively verifying, proving, and establishing the acceptance of such rights-of-way; and (2) provisions governing judicial review of a denial of such a claim.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8798 Introduced in House (IH)]
<DOC>
116th CONGRESS
2d Session
H. R. 8798
To establish a procedure for resolving claims to certain rights-of-way,
and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 20, 2020
Mr. Cook introduced the following bill; which was referred to the
Committee on Natural Resources
_______________________________________________________________________
A BILL
To establish a procedure for resolving claims to certain rights-of-way,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
(a) Short Title.--This Act may be cited as the ``Historic Routes
Preservation Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title.
Sec. 2. Purpose.
Sec. 3. Definitions.
Sec. 4. Filing of claim.
Sec. 5. Evidence and final decision.
Sec. 6. Judicial review.
Sec. 7. Applicable law and time extensions.
Sec. 8. Implementation required.
Sec. 9. Effect; applicability.
Sec. 10. Repeal of restrictions on regulations.
SEC. 2. PURPOSE.
The purpose of this Act is to preserve historical access to the
public lands by achieving 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 authorizing
administrative procedures and establishing evidentiary
standards for the processing of R.S. 2477 right-of-way claims;
(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 Federal R.S. 2477 right-
of-way grants;
(3) recognizing and protecting valid existing rights; and
(4) requiring that any actions by a successful claimant
improving, upgrading or expanding an R.S. 2477 right-of-way are
conditioned upon consultation with the Secretary.
SEC. 3. DEFINITIONS.
In this Act:
(1) Abandon or abandonment.--The terms ``abandon'' and
``abandonment'' mean formal action by the governing body of a
claimant taken at a public meeting pursuant to notice that
declares all of claimant's right, title, and claim to a R.S.
2477 right-of-way is relinquished.
(2) Acceptance or accepted.--The terms ``acceptance'' and
``accepted'' mean acts on the part of a claimant sufficient to
manifest an intent to accept the open congressional offer under
R.S. 2477 right-of-way, including--
(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 of, or responsibility for
maintaining, a highway; or
(ii) the inclusion of a highway in an
official map that reflects such ownership or
maintenance responsibility;
(B) the construction, improvement, repair or
maintenance of a highway by a State or county
governmental authority, or private party 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 title
to an 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, corporation
or other person asserting title to a right-of-way under R.S.
2477.
(5) Construction.--The term ``construction'' means the
physical activity reasonably necessary, advisable, or desirable
to allow safe, 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 road
and the nature of the use and does not require a determination
of frequency of use. Continuous public use includes use that
may be interrupted by events of nature or seasonal 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 or relinquishing any
ownership interest of the Federal Government in an R.S. 2477
right-of-way, including a deed or equivalent document issued
under section 315 of the Federal Land Policy and Management Act
of 1976 (43 U.S.C. 1745), or section (e) of the Federal Quiet
Title Act (28 U.S.C. 2409a). A disclaimer issued by the
Secretary is valid without judicial adjudication.
(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 the enactment of this Act.
(9) Highway.--The term ``highway'' means any road, way,
right-of-way, or other land surface route of travel over which
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'' is
distinguished from ordinary maintenance and repair and
includes--
(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 upgrade in the surface composition of a
highway.
(11) Maintenance.--The term ``maintenance'' means the
preservation of an existing highway, including but not limited
to--
(A) the physical upkeep of the highway;
(B) the repair or replacement of wear or damage to
the highway, including to bridges, culverts, or other
drainage structures or conduits, from natural or other
causes;
(C) the restoration of the shape or path of the
highway; and
(D) the gradation of the highway or other measures
to ensure that the shape of the highway permits
drainage or safe passage over the highway by the
public.
(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 other, specific public
purpose 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 authorized or otherwise
allowed to enter or use public land, and includes
Federal lessees, permittees, licensees, and invitees.
(B) Exceptions.--The terms ``public'' or ``public
user'' do not include any Federal agent or employee
acting within the scope of their agency or employment.
(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 a public right-of-way allowing public use and
passage, which could be accepted by a claimant on or before
October 21, 1976.
(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 or otherwise permit an R.S. 2477 right-
of-way for the specific public purpose.
(B) Clarification.--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, lands not formally
designated by Congress as wilderness, or lands with
wilderness characteristics.
(17) Scope.--
(A) The term ``scope''--
(i) means the width of a R.S. 2477 right-
of-way as of October 21, 1976, including the
area reasonable and necessary to meet the
public convenience or safety (including
maintenance, repair and realignment) or the
exigencies of increased travel, based on the
traditional uses of a highway; and
(ii) is not limited to the disturbed
surface of the highway.
(B) For the purposes of this definition, the right-
of-way condition of a road that has been open for at
least the previous 5 years shall be used as a
rebuttable presumption of what is reasonable and
necessary.
(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) In General.--A claimant of a right-of-way granted under R.S.
2477 may file a claim under this section.
(b) Administrative Claim After Filing Claim Under Title 28.--
(1) In general.--A claimant is deemed to have filed a claim
under paragraph (1) if, before the date of the enactment of
this Act, the claimant--
(A) 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; or
(B) filed 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.
(2) Pending court action.--If a claimant is deemed to have
filed a claim under paragraph (1) with respect to a previously
filed 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, any suit filed by or on behalf of the
claimant with respect to public acceptance of the right-of-way
shall, except as to the preservation of evidence, be held in
abeyance pending final determination under this Act and shall
be dismissed without prejudice when acceptance of the right-of-
way is finally determined under this Act, and all challenges
thereto have been exhausted.
(c) Form; Contents.--
(1) Form.--Not later than 30 days after the date of the
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) a center line description, or other verified
survey meeting generally accepted standards and
procedures, clearly showing the location, route,
direction, beginning and end points and length,
together with an average width of the claimed R.S. 2477
right-of-way as of a date certain;
(B) evidence demonstrating the acceptance and scope
of the claimed R.S. 2477 right-of-way; and
(C) proof of notice or attempted notice by the
claimant under subsection (e).
(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.
(e) 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 has filed a notice of an intent to
file suit, or has filed suit, with respect to the claimed R.S.
2477 right-of-way under section 2409a(m) of title 28, United
States Code, on or before the date of the enactment of this
Act.
(f) Effect of Failure To Meet Filing Deadline or Requirements.--If
a claimant fails to comply with the requirements of--
(1) subsection (a), 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.
(g) Statute of Limitations.--Except as provided in subsection
(a)(1), any statute of limitations for asserting title to an R.S. 2477
right-of-way under this section 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) Evidence.--
(1) In general.--Acceptance 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 one item of evidence from among the
categories of evidence described in subsection (c)(1);
or
(B) at least two items of evidence from among the
categories of evidence described in subparagraphs (A)
or (B) of subsection (c)(2).
(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 that establishes
that the United States reserved the land as herein defined
underlying the claimed R.S. 2477 right-of-way before acceptance
conclusively establishes withdrawal of the Federal grant and
defeats the claim.
(c) Description of Categories of Evidence.--For the purposes of
processing claims under this Act, the following categories of evidence
shall be considered:
(1) Category 1.--Category 1 evidence consists of the
following types of evidence:
(A) Official minutes, resolutions, declarations, or
written agreements of a State or county governmental
body reflecting or otherwise memorializing a positive
or affirmative action by a State or county governmental
body accepting a claimed R.S. 2477 right-of-way prior
to October 21, 1976.
(B) 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
that show that the right-of-way was accepted by a State
or county governmental authority prior to October 21,
1976.
(C) Maps, plats, maintenance records (including
actual or estimated costs of maintenance), photographs,
or other computer-generated images demonstrating that
the claimed R.S. 2477 right-of-way was regularly
maintained by a State or county governmental authority
or private individual prior to October 21, 1976.
(D) Written or transcribed oral statements given
under oath before a notary public, court reporter,
judge or any other government official authorized by
law to administer oaths or otherwise authenticated
stating that the right-of-way was regularly maintained
by a State or local government or private individual
prior to October 21, 1976.
(2) Category 2.--Category 2 evidence consists the following
types of evidence:
(A) In addition to the records described in
paragraph (1)(B) and(C), other historical records
including original documents, authenticated copies,
facsimiles, and computer-transmitted images (including
aerial photographs, topographical maps, and government
road maps), reliably showing evidence of public usage
of a R.S. 2477 right-of-way before October 21, 1976.
(B) Written or transcribed oral statements 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.
(d) 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 by the claimant only
in accordance with section 6.
(e) Disclaimer and Relinquishment Required.--
(1) In general.--Not later than 180 days after the date on
which evidence establishing 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) Improvement consultation.--The disclaimer and
relinquishment shall clearly state that any future improvement
of an R.S. 2477 right-of-way is conditioned upon consultation
with the Secretary.
(4) 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 the R.S. 2477 right-of-way.
(5) Review.--The document delivered by, and any actions of,
the Secretary under paragraph (1)--
(A) shall be subject to review only as provided in
section 6; and
(B) shall not be subject to--
(i) quiet title proceedings under any other
provision of law; or
(ii) any other judicial or administrative
de novo or on the record reviews, claims,
actions, or proceedings.
(6) 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 120 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 the enactment of this Act in which the
United States was a party in determining rights to a R.S. 2477 right-
of-way.
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 up
to 180 days for any 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.--Not later than 90 days after the date of the
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.
(b) Injunction; Liability.--The duties and obligations of 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 boundary of--
(A) a National Park (to exclude lands other than
National Parks which are under the jurisdiction or
administration of the National Park Service); or
(B) a congressionally designated National
Wilderness Area.
(c) Effect on Claims.--This Act and the procedures and process
implemented under this Act--
(1) shall apply to--
(A) claims filed pursuant to this Act after the
date of the enactment of this Act; and
(B) claims filed before the date of the enactment
of this Act for which a final determination has not
been issued and which have been converted by claimant
for processing under the provisions of this Act by
filing the claim under section 4; and
(2) shall not affect the ability of a claimant to file or
maintain a suit with respect to the claimed R.S. 2477 right-of-
way under section 2409a(m) of title 28, United States Code, if
the claimant has not filed a claim under section 4 regarding
that R.S. 2477 right-of-way.
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.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Natural Resources.
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