Sec. 4. Evidence and final decision
937 words·~4 min read·
/bill/114/hr/4313/ih/section-4A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Claimant shall establish acceptance by a preponderance of the evidence. Unless the land underlying the claimed R.S. 2477 right-of-way was reserved before the earlier of construction of a trail, path, or other throughway 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 upon filing, under oath or affirmation by claimant attesting to its authenticity and accuracy, of— at least one type of evidence related to that right-of-way selected from subsection (c)(1); or at least one type of evidence selected from each of two subparagraphs in subsection (c)(2) showing scope and acceptance before October 21, 1976.
Copies may be used as evidence in place of original documents if they are accompanied by a written declaration, under oath by a custodian, owner, or author, that the copy is an accurate representation of the original document’s material terms. Hearsay contained in documents, or otherwise, is regarded as reliable, admissible, and probative for the purposes of this Act. Evidence produced by the United States that establishes the United States reserved the land underlying the alleged R.S. 2477 right-of-way before its acceptance conclusively establishes withdrawal of the Federal grant for that right-of-way.
For the purposes of actions under this Act, the following rules apply to categories of evidence: A center line or other survey done by the Federal Government or duly licensed land surveyor, applying generally accepted survey standards and procedures or Federal 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 a date certain.
Maps, plats, maintenance records including actual or estimated costs, 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 any Federal, State, or local government, college, university, 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 the government in the ordinary course of business, including, without limitation, Federal, State, local, and territorial records, such as records of the United States Departments of the Interior, Agriculture, or Defense, Bureau of Land Management, Forest Service, Natural Resources Conservation Service, Soil Conservation Service, Government Land office, Federal Centers or Enclaves, the Smithsonian Institution and Library of Congress.
Historical records, other than those included under subsection (c)(3), including original documents, authenticated copies, facsimiles, and computer-transmitted images reliably showing evidence of construction (including tools used, if any), location (including dimensions), fixtures and other structures, or maintenance by a State or local government of the R.S. 2477 right-of-way under consideration. Written 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 of the R.S. 2477 right-of-way under consideration.
If this category of evidence is used, written statements by at least two persons shall be required. A title opinion prepared by a duly licensed title examiner prepared in accordance with generally accepted title standards, establishing title, location and dimensions of the R.S. 2477 right-of-way under consideration. Not later than 30 days after a R.S. 2477 right-of-way is conclusively established as accepted pursuant to this section, the Secretary, Authority, or Authorized Officer shall determine, in writing, whether that right-of-way has been previously abandoned by claimant.
Failure to make such written determination within that 30-day period shall conclusively establish the right-of-way has not been abandoned. That determination by the Secretary, Authority or Authorized Officer, or the failure to make that determination, within the time specified by this subsection shall be a final agency action, subject to appeal as provided and limited by section 5. Subject to subsection (d), not later than 60 days after the evidence to establish a R.S. 2477 right-of-way has been filed pursuant to this section, the Secretary, Authority, or Authorized Officer shall deliver or cause to be delivered to claimant a written document disclaiming and relinquishing the United States right and interest in the R.S. 2477 right-of-way, which document and actions under this Act shall only be subject to review as provided and limited by section, and shall not be subject to quiet title proceedings under section or otherwise, or subject to any other judicial or administrative de novo, or on the record, reviews, claims, actions or proceedings.
The disclaimer and relinquishment shall immediately be recorded in the public land records under the jurisdiction of the Secretary, and shall conclusively establish the public right to use the R.S. 2477 right-of-way. The disclaimer and relinquishment shall be in form to allow recording in State and local real estate records. Notice of the action under subsection
(e)shall be published once in the Federal Register not later than 30 days after the delivery occurs as specified by that subsection. A centerline survey of the R.S. 2477 right-of-way disclaimed and relinquished by the United States pursuant to this Act shall be completed and filed by claimant with the Secretary, Authority, or Authorized Officer not later than 10 years after the time specified by section 3(a). Failure by claimant to complete and file a centerline survey as required by subsection
(g)shall be an abandonment of any and all rights to the R.S. 2477 right-of-way for which the relinquishment was issued.