Sec. 5. Evidence and final decision
1,001 words·~5 min read·
/bill/115/s/468/is/section-5A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
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. 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. 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. 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. 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. 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. 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.