Sec. 1. Short title, findings, and purpose
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This Act may be cited as the . Historic Routes Preservation Act Congress finds the following: The Act of July 26, 1866 ( 43 U.S.C. 932 ), provided for an open-ended grant of the right of way for the construction of highways over public lands, not reserved for public use. . The purpose of that Act was to encourage the opening, expansion, settlement, use and development of the American West. Rights-of-way established by use over land in the public domain are not terminated or abandoned by subsequent Federal grants of the property underlying the rights-of-way and Federal attempts to reacquire the rights-of-way or reservation by the Federal Government.
Instead, all rights-of-way accepted before October 21, 1976, continue as easements that can be used by the public. Unlike rights-of-way granted under FLPMA, the grant of R.S. 2477 rights-of-way was complete on its face, and no formalities, such as notice, entry, license, lease, application, deed, patent, hearing, or formal public written or oral acceptance were required to establish public rights-of-way under R.S. 2477. That law simply required some limited degree of construction activity on the land necessary or advisable to enable passage over it or mere public usage for some undefined amount of time.
When early R.S. 2477 right-of-way grants were made and accepted, the United States had no laws or regulations governing the establishment or use of roads and rights-of-way; so the territories, then the States, provided early interpretive guidance on the action the use or construction activity —necessary to accept and establish the scope of those rights-of-way. Some rights-of-way established under R.S. 2477 were easily identified, including thoroughfares that connected settlements, towns and trade centers, postal routes, routes for inter-territory commerce, and the like.
But the rights-of-way for lesser known, or lesser used, rights-of-way (perhaps established as single-person trails, horse trails, mining trails, fur trade routes, wagon routes, and other similar or lesser uses) have been more difficult to identify; and special interest organizations, business and government have argued for various interpretations regarding the establishment, acceptance and scope of R.S. 2477 rights-of-way. Those disputes have often resulted in unsuccessful settlement negotiations and expensive time-consuming litigation to establish R.S. 2477 rights-of-way.
After decades of lawsuits, case-by-case negotiations, law review articles, expert commentary, and various issued and reissued government policies and procedures on point, there is still no consistent definition or agreement regarding what evidence or action is required to establish a R.S. 2477 right-of-way, whether State or Federal law governs R.S. 2477 grants, and what the scope of R.S. 2477 rights-of-way are today. The uncertainty may be due, in substantial part, to the fact that rights created by past laws, such as R.S. 2477, are generally interpreted according to the understanding of terminology at the time of passage:
The historic meaning of the statutory language as determined with reference to the surrounding environment and events of the day. Although court decisions have provided much of the guidance in quieting title to rights-of-way under R.S. 2477, they have often incorporated differing State law to define the acceptance and scope of R.S. 2477 rights-of-way, resulting in inconsistent outcomes under similar facts. There is still sentiment, apparent from comments by Federal parties in R.S. 2477 litigation, that interpretation and application of R.S. 2477 should be left exclusively to the Federal Government.
Apparently intending to bring some certainty to R.S. 2477 right-of-way claims, in 1988 Secretary of the Interior Hodel established a Department of the Interior policy that would verify R.S. 2477 rights-of-way and allow the Department to record them in Department land records if— they were not reserved public lands at the time they were put into public use; there was some minimal construction to enable public passage, such as clearing vegetation or removing obstructions; and the R.S. 2477 route was open to public use by pedestrians, pack animal, wagons or motorized vehicles.
Nevertheless, the policy did not authorize the Department of the Interior to adjudicate applications for R.S. 2477 rights-of-way. A more restrictive approach evolved under Secretary of the Interior Babbitt that, among other restrictions, substantially limited motorized vehicle access to Federal lands and required more than mere use to establish construction necessary to accept a R.S. 2477 right-of-way grant. Accordingly, the Federal Bureau of Land Management (the BLM) was required to determine whether construction equivalent to building road structures had occurred in those instances where a R.S. 2477 right-of-way was claimed.
Apparently in response to Secretary Babbitt’s strict policy, Congress enacted a temporary moratorium, followed by section 108 of the Omnibus Consolidated Appropriations Act, 1997, which states, in part, that No final rule or regulation of any agency of the Federal Government pertaining to the recognition, management, or validity of a right-of-way pursuant to Revised Statute 2477 ( . That law has been determined to be permanent. 43 U.S.C. 932 ) shall take effect unless expressly authorized by an Act of Congress subsequent to the date of enactment of this Act.
Uncertainty leading to litigation and other expensive forms of dispute resolution regarding public acceptance and right to use R.S. 2477 rights-of-way has persisted for more than 100 years. Although Congress in the early 1990s received a report from the Department of the Interior suggesting a Federal administrative process was necessary to formally recognize validly accepted R.S. 2477 rights-of-way, that process has not been implemented and there is limited, inconsistent action by Federal administrative agencies and departments to determine whether a R.S. 2477 grant has been accepted by the public, thus indicating an apparent preference by the Federal Government to have the courts decide R.S. 2477 claims.
It is in the best interest of the public and government to establish consistent, clear and conclusive direction to timely evaluate and officially recognize valid R.S. 2477 claims, to provide a legislative framework for objectively achieving those ends within clearly limited timeframes and with minimal executive and administrative involvement, and to minimize costs and delays typically associated with litigating R.S. 2477 claims. The purpose of this Act is to achieve judicial and administrative efficiency, and to reduce costs typically associated with resolving R.S. 2477 right-of-way claims by establishing a deadline for filing those claims, establishing mandatory procedures for considering and acting on those claims, and requiring Federal administrative action to finally resolve those claims.
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Sec. 1
Short title, findings, and purpose
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