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Public Statements

Introduction of Bill Dealing With Claims for Rights-of-Way Under R.S. 2477

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Date:
Location: Washington, DC


INTRODUCTION OF BILL DEALING WITH CLAIMS FOR RIGHTS-OF-WAY UNDER R.S. 2477 -- (Extensions of Remarks - July 27, 2005)

SPEECH OF HON. MARK UDALL OF COLORADO
IN THE HOUSE OF REPRESENTATIVES
TUESDAY, JULY 26, 2005

* Mr. UDALL of Colorado. Mr. Speaker, I am today again introducing a bill to establish a process for orderly resolution of a problem that affects private property owners and the sound management of the Federal lands.

* What is involved are claims for rights-of-way under a provision of the Mining Law of 1866 that later was 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* More than a century after its enactment, R.S. 2477 was repealed by the Federal Land Policy and Management Act of 1976, often called ``FLPMA,'' and was replaced with a modern and comprehensive process for establishing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 lands might be affected--including not just Federal lands but also lands that once were Federal but now belong to other owners. But it is clear that R.S. 2477 claims could involve not only thousands of square miles of Federal lands but also many lands that now are private property or belong to the states or other entities.

* 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, and 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.

* The bill is based on legislation proposed by the Secretary of the Interior in 1997, with changes and refinements based on extensive consultations with many interested persons and groups.

* The bill follows the sound example of FLPMA by providing that any R.S. 2477 claim for which a notice is not filed with the government within 4 years will be considered to have been relinquished and void. I think this is more than reasonable, because people interested in claiming rights-of-way under R.S. 2477 have had ample time to decide whether they want to file a claim.

* The bill also spells out what information a claimant is to provide, how claims are to be considered administratively, and the rules for judicial review of administrative decisions about claims.

* Recognizing the potential threats to private or other non-Federal landowners from R.S. 2477 claims, the bill spells out that claims involving their lands will be considered to have been abandoned when the lands were transferred out of federal ownership unless the claimant can establish by clear and convincing evidence that at the time of transfer there was a well-established right-of-way whose use for highway purposes was intended to be allowed to continue. And it applies a similar standard to claims involving lands used for national defense purposes as well as National Parks, National Wildlife Refuges, wilderness and wilderness study areas, and other conservation areas.

* Since last year, my staff and I have discussed this subject with many people, representing a wide range of views. In particular, we worked closely with Commissioners and staff members from many of Colorado's counties. The results of those discussions are reflected throughout the bill, which differs from the previous version in many respects.

* Mr. Speaker, this is a fair, balanced bill. It gives anyone claiming to hold a valid right under R.S. 2477 ample opportunity to come forward and seek to have that claim upheld, with an opportunity to seek ultimate redress from the courts if necessary. At the same time, it gives private property owners and the American people--the owners of the Federal lands--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 lands.

* In my opinion, such legislation is long overdue.

* I am attaching an outline of the main provisions of the bill.

OUTLINE OF R.S. 2477 BILL

Section 1

Section 1 provides a short title, has findings about the bill's background, and states its purpose, which is to provide certainty to affected private landowners, State and local governments, and the public by establishing a deadline for filing of claims for highway rights-of-way under R.S. 2477 and providing a process for consideration and resolution of such claims.

Section 2

Section 2 defines key terms used in the bill.

Section 3

Section 3 deals with the filing of notices of claims for rights-of-way based on R.S. 2477:

Subsection (a) sets a deadline of 4 years after enactment for filing notices of claims.

Subsection (b) specifies the information to be included in each notice of a claim.

Subsection (c) deals with the places for filing notices of claims and other aspects of filing

Subsection (d) requires publication and other steps to inform the public.

Subsection (e) provides that failure to timely file a notice of a claim shall be deemed to constitute a relinquishment of any rights purported to have been acquired under R.S. 2477 related to that claim. This parallels Section 314 of FLPMA, 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. Claims already subject to final determination by any Federal court or agency are exempt.

Section 4

Section 4 addresses evidence to support claims.

Subsection (a) sets a deadline of 6 year after filing a notice of a claim for a claimant to submit evidence in support of the claim.

Subsection (b) requires submission of the following: 1) Name, address, and contact information of the claimant; 2) names and contact information of all persons or entities with property interests in lands affected by a claim, as shown on public records; 3) proof that notice of the claim has been provided to the persons and entities listed under (2); 4) identification of the entity that would have a property interest in the right-of-way for which a claim is being made; 5) a description of the highway on which the claim is based; 6) evidence of construction of a highway on the claimed route; 7) evidence that the claimed route constitutes a highway; 9) a statement regarding the availability of materials related to the claim; and 10) evidence that the claimed right-of-way traversed public land not reserved for other use at the time of construction of the highway

Subsection (c) requires additional evidence to support claims involving certain lands: 1) for claims involving conservation lands, tribal lands, or defense lands, evidence that prior construction and continuing use of the lands for highway purposes were so open and notorious on and after the date on which the lands acquired such status that management of the lands by the Federal government was intended to be subject to continuation of their use for highway purposes; and 2) For claims involving lands no longer in Federal ownership, evidence that prior construction and continuing use of the lands for highway purposes were so open and notorious on the date that the lands were transferred from Federal ownership that the transfer was intended to be subject to the continued use of lands for highway purposes.

Subsection (d) provides that a claimant who fails to submit all the required evidence to support a claim will have an additional 30 days to complete the submission, and that failure to submit all required evidence shall result in a determination that the claim is deemed abandoned and that any rights purported to be based on R.S. 2477 with respect to the claim have been relinquished. Such a determination is subject to judicial review pursuant to section 5(j).

section 5

Section 5 addresses review of claims and determinations regarding them.

Subsection (a) requires the authorized officer to review timely-submitted evidence in order to determine whether a claim should be considered presumptively valid.

Subsection (b) provides that in all cases a claimant shall have the burden of proving by a preponderance of the evidence that a claimed right-of-way was validly accepted under R.S. 2477.

Subsection I requires the authorized officer to determine presumptively valid a claim involving private or other non-federal lands if the claimant has both met the burden of proof specified in subsection (b) and has also demonstrated by clear and convincing evidence that when the lands passed from Federal ownership the prior construction and continuing use of the lands for highway purposes were so open and notorious that transfer of the lands was intended to be subject to their continued use for highway purposes.

Subsection (d) requires the authorized officer to determine presumptively valid a claim involving conservation or defense lands if the claimant has both met the burden of proof specified in subsection (b) and has also demonstrated by clear and convincing evidence that when the lands acquired that status the prior construction and continuing use of the lands for highway purposes were so open and notorious that management of the lands for conservation of defense purposes was intended to be subject to their continued use for highway purposes.

Subsection (e) requires the authorized officer to determine presumptively valid a claim involving tribal lands if the claimant has both met the burden of proof specified in subsection (b) and has also demonstrated by clear and convincing evidence that when the lands acquired that status the prior construction and continuing use of the lands for highway purposes were so open and notorious that it was intended that use of the lands for highway purposes would continue.

Subsection (f) provides that if no portion of a claim involves former Federal lands, conservation lands, defense lands, or tribal lands, the authorized officer is to determine the claim presumptively valid if the claimant has met the burden of proof specified in subsection (b).

Subsection (g) provides that if the authorized officer is unable to determine a claim to be presumptively valid, the officer will determine it invalid and that any rights purported to have been acquired under R.S. 2477 with respect to the claim have been relinquished and therefore no further administrative action on it is required. It also provides for notification of such a determination and specifies that such a notification constitutes final agency action subject to judicial review, and sets a 3-year statute of limitation for initiation of such review.

Subsection (h) specifies the procedures to be followed if the authorized officer determines a claim is presumptively valid, provides an opportunity for filing an objection to such a determination, and allows a claimant to provide supplemental evidence to respond to such an objection.

Subsection (i) provides for a public hearing if an objection is filed to a determination of presumptive validity, upon the request of either a claimant or an objector.

Subsection (i) provides for review of information submitted by an objector to a finding of presumptive validity and for issuance of a determination of validity or invalidity.

Subsection (k) specifies the information to be included in determinations of validity, specifies that such a determination is a final agency action subject to judicial review, and establishes a statute of limitation for initiation of such review.

section 6

Section 6 includes a variety of administrative provisions:

Subsection (a) prohibits charging a fee for filing of a claim by a State, County, or local government.

Subsection (b) sets priorities for reviewing and processing claims: 1) claims filed by a State, County, or local government; 2) claims filed by non-governmental parties and involving private or other non-federal lands, conservation lands, defense lands, or tribal lands; and 3) other claims.

Subsection (c) requires that to the extent practicable review of claims will be completed within a year after submission of evidence and requires periodic status reports on claims under review.

Subsection (d) provides--1) authorized officers reviewing claims are to seek and consider the views of affected States, counties, local governments, tribes, Federal agencies, and the public; 2) authorized officers reviewing claims are responsible for coordinating with appropriate Federal agencies; 3) authorizing officers reviewing claims involving lands in Alaska will also seek the views and consult with any affected Native Corporation.

Subsection (e) authorizes retention by the United States (with respect to claims involving conservation, defense, or tribal lands) or the owner of record (with respect to claims involving other lands) of exclusive possession or control of lands affected by claims held upon judicial review to be valid. The subsection specifies the United States or the owner of record shall seek to reach agreement with the claimant before exercising the authority to retain possession or control.

Subsection (f) requires filing of surveys of R.S. 2477 highway rights-of-way determined to be valid; provides that failure to file such a survey within 5 years after final administrative determination of validity shall be deemed to be a relinquishment of any rights purported to have been acquired under R.S. 2477 with respect to such right-of-way; and establishes a 3-year statute of limitations to challenge any such deeming of relinquishment.

Subsection (g) provides for consultation with relevant Federal agencies or tribes and requires concurrence of relevant Federal agencies before a determination of presumptive validity.

section 7

Section 7 addresses the relationship between the bill and other law and prior determinations.

Subsection (a) provides that authorized officers are to apply Federal law and relevant State law to the extent that State law is consistent with Federal law.

Subsection (b) specifies that nothing in the bill will affect, change, alter, or modify Title V of FLPMA or Title IX of the Alaska National Interest Lands Conservation Act.

Subsection (c) provides--1) except as provided in this subsection, nothing in the bill applies to or affects the status of any judicial or administrative determinations made prior to its enactment regarding any claim or assertion based on R.S. 2477; 2) any final determination regarding an R.S. 2477 claim or assertion made sooner than 4 years after the enactment of the bill must be filed with relevant offices of the Bureau of Land Management and recorded on appropriate local land records; 3) failure to file or record in accordance with paragraph (2) shall be deemed a relinquishment of any rights purported to have been acquired under R.S. 2477; 4) a deeming of relinquishment for failure to file or record is subject to judicial review; but 5) any such judicial review must be initiated no later than 7 years after the date of enactment of the bill.

section 8

Section 8 specifies that no Federal officer, agency, or court shall take any action to affirm the validity of any assertion of a property interest in a right-of-way under R.S. 2477 except with regard to a claim filed under the bill.

section 9

Section 9 authorizes appropriations to implement the bill.

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