Historic Routes Preservation Act

I 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Historic Routes Preservation Act’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 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. VerDate Sep 11 2014 22:09 Nov 30, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\H8798.IH H8798 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 8798 IH Sec. 8. Implementation required. Sec. 9. Effect; applicability. Sec. 10. Repeal of restrictions on regulations. SEC. 2. PURPOSE. 1 The purpose of this Act is to preserve historical ac- 2 cess to the public lands by achieving judicial and adminis- 3 trative efficiency for, and to reduce the costs typically as- 4 sociated with, resolving right-of-way claims under R.S. 5 2477 by— 6 (1) reducing the burden on Federal courts by 7 authorizing administrative procedures and estab- 8 lishing evidentiary standards for the processing of 9 R.S. 2477 right-of-way claims; 10 (2) establishing— 11 (A) a deadline for filing R.S. 2477 right- 12 of-way claims; 13 (B) mandatory procedures for considering 14 and acting on the R.S. 2477 right-of-way 15 claims; and 16 (C) uniform legal and evidentiary stand- 17 ards of proof of public acceptance of Federal 18 R.S. 2477 right-of-way grants; 19 (3) recognizing and protecting valid existing 20 rights; and 21 (4) requiring that any actions by a successful 22 claimant improving, upgrading or expanding an R.S. 23 VerDate Sep 11 2014 22:09 Nov 30, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8798.IH H8798 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 8798 IH 2477 right-of-way are conditioned upon consultation 1 with the Secretary. 2 SEC. 3. DEFINITIONS. 3 In this Act: 4 (1) ABANDON OR ABANDONMENT.—The terms 5 ‘‘abandon’’ and ‘‘abandonment’’ mean formal action 6 by the governing body of a claimant taken at a pub- 7 lic meeting pursuant to notice that declares all of 8 claimant’s right, title, and claim to a R.S. 2477 9 right-of-way is relinquished. 10 (2) ACCEPTANCE OR ACCEPTED.—The terms 11 ‘‘acceptance’’ and ‘‘accepted’’ mean acts on the part 12 of a claimant sufficient to manifest an intent to ac- 13 cept the open congressional offer under R.S. 2477 14 right-of-way, including— 15 (A) a positive or affirmative action by a 16 State or county governmental authority on or 17 before October 21, 1976, including— 18 (i) a formal resolution or declaration 19 of ownership of, or responsibility for main- 20 taining, a highway; or 21 (ii) the inclusion of a highway in an 22 official map that reflects such ownership or 23 maintenance responsibility; 24 VerDate Sep 11 2014 22:09 Nov 30, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8798.IH H8798 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 8798 IH (B) the construction, improvement, repair 1 or maintenance of a highway by a State or 2 county governmental authority, or private party 3 on or before October 21, 1976; or 4 (C) the continuous use of a highway by the 5 public for a period of not fewer than 5 consecu- 6 tive years ending on a date that is on or before 7 October 21, 1976. 8 (3) CLAIM.—The term ‘‘claim’’ means the as- 9 sertion of title to an R.S. 2477 right-of-way filed 10 under section 4(a)(1). 11 (4) CLAIMANT.—The term ‘‘claimant’’ means 12 any State, county, political subdivision or agency of 13 a State, corporation or other person asserting title 14 to a right-of-way under R.S. 2477. 15 (5) CONSTRUCTION.—The term ‘‘construction’’ 16 means the physical activity reasonably necessary, ad- 17 visable, or desirable to allow safe, continuous public 18 use over a highway according to the intended mode 19 of travel or transportation, which may be established 20 by the use of any tools or equipment, or other 21 means, including mere usage. 22 (6) CONTINUOUS PUBLIC USE.—The term ‘‘con- 23 tinuous public use’’ means the uninterrupted use of 24 a highway by the public for passage as often as gen- 25 VerDate Sep 11 2014 22:09 Nov 30, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8798.IH H8798 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 8798 IH erally regarded by the public to be convenient or 1 necessary depending on the character of the road 2 and the nature of the use and does not require a de- 3 termination of frequency of use. Continuous public 4 use includes use that may be interrupted by events 5 of nature or seasonal use. 6 (7) DISCLAIMER AND RELINQUISHMENT.—The 7 term ‘‘disclaimer and relinquishment’’ means any 8 type of deed or equivalent document in a form suit- 9 able for recordation that is approved and issued by 10 the Secretary disclaiming or relinquishing any own- 11 ership interest of the Federal Government in an 12 R.S. 2477 right-of-way, including a deed or equiva- 13 lent document issued under section 315 of the Fed- 14 eral Land Policy and Management Act of 1976 (43 15 U.S.C. 1745), or section (e) of the Federal Quiet 16 Title Act (28 U.S.C. 2409a). A disclaimer issued by 17 the Secretary is valid without judicial adjudication. 18 (8) EVIDENCE.—The term ‘‘evidence’’ means 19 any testimony, object, or document described in sec- 20 tion 5 that would be reliable, authentic, probative, 21 and persuasive in Federal district court under the 22 Federal Rules of Evidence that are in effect on the 23 date of the enactment of this Act. 24 VerDate Sep 11 2014 22:09 Nov 30, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8798.IH H8798 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 8798 IH (9) HIGHWAY.—The term ‘‘highway’’ means 1 any road, way, right-of-way, or other land surface 2 route of travel over which the public has the right 3 of use for passage, whether by carriage, animal, 4 foot, or non-motorized or motorized vehicle. 5 (10) IMPROVEMENT.—The term ‘‘improvement’’ 6 is distinguished from ordinary maintenance and re- 7 pair and includes— 8 (A) the widening of a highway; 9 (B) the horizontal or vertical realignment 10 of a highway; 11 (C) the installation (as distinguished from 12 cleaning, repair, or replacement in kind) of a 13 bridge, culvert, or other drainage structure or 14 conduit; or 15 (D) any upgrade in the surface composi- 16 tion of a highway. 17 (11) MAINTENANCE.—The term ‘‘maintenance’’ 18 means the preservation of an existing highway, in- 19 cluding but not limited to— 20 (A) the physical upkeep of the highway; 21 (B) the repair or replacement of wear or 22 damage to the highway, including to bridges, 23 culverts, or other drainage structures or con- 24 duits, from natural or other causes; 25 VerDate Sep 11 2014 22:09 Nov 30, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8798.IH H8798 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 8798 IH (C) the restoration of the shape or path of 1 the highway; and 2 (D) the gradation of the highway or other 3 measures to ensure that the shape of the high- 4 way permits drainage or safe passage over the 5 highway by the public. 6 (12) PUBLIC LAND.—The term ‘‘public land’’ 7 means land— 8 (A) that is owned, controlled by, or subject 9 to the jurisdiction of the Federal Government 10 for the benefit of the public; and 11 (B) that was not reserved other, specific 12 public purpose on the date on which a R.S. 13 2477 right-of-way grant was accepted. 14 (13) PUBLIC OR PUBLIC USER.— 15 (A) IN GENERAL.—The terms ‘‘public’’ or 16 ‘‘public user’’ mean all natural persons author- 17 ized or otherwise allowed to enter or use public 18 land, and includes Federal lessees, permittees, 19 licensees, and invitees. 20 (B) EXCEPTIONS.—The terms ‘‘public’’ or 21 ‘‘public user’’ do not include any Federal agent 22 or employee acting within the scope of their 23 agency or employment. 24 VerDate Sep 11 2014 22:09 Nov 30, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8798.IH H8798 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 8798 IH (14) R.S. 2477.—The term ‘‘R.S. 2477’’ means 1 section 2477 of the Revised Statutes (43 U.S.C. 2 932) repealed by section 706 of the Federal Land 3 Policy and Management Act of 1976 (Public Law 4 94–579; 90 Stat. 2793). 5 (15) R.S. 2477 RIGHT-OF-WAY.—The term ‘‘R.S. 6 2477 right-of-way’’ means an open-ended grant or 7 dedication of land by the United States for a public 8 right-of-way allowing public use and passage, which 9 could be accepted by a claimant on or before Octo- 10 ber 21, 1976. 11 (16) RESERVED.— 12 (A) IN GENERAL.—The term ‘‘reserved’’ 13 means action by the Secretary, before the ear- 14 lier of a R.S. 2477 right-of-way acceptance or 15 October 21, 1976— 16 (i) to withdraw land from the public 17 domain; 18 (ii) to make the land unavailable for 19 appropriation under public land laws; and 20 (iii) to dedicate the land by the 21 United States to a specific public purpose, 22 such as a park, military establishment, wil- 23 derness area, tribal land, or Federal en- 24 clave, that does not rely on or otherwise 25 VerDate Sep 11 2014 22:09 Nov 30, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8798.IH H8798 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 8798 IH permit an R.S. 2477 right-of-way for the 1 specific public purpose. 2 (B) CLARIFICATION.—The term ‘‘re- 3 served’’ does not apply to an action of the Sec- 4 retary with respect to the designation of a wil- 5 derness study area, an area of critical environ- 6 mental concern, lands not formally designated 7 by Congress as wilderness, or lands with wilder- 8 ness characteristics. 9 (17) SCOPE.— 10 (A) The term ‘‘scope’’— 11 (i) means the width of a R.S. 2477 12 right-of-way as of October 21, 1976, in- 13 cluding the area reasonable and necessary 14 to meet the public convenience or safety 15 (including maintenance, repair and realign- 16 ment) or the exigencies of increased travel, 17 based on the traditional uses of a highway; 18 and 19 (ii) is not limited to the disturbed sur- 20 face of the highway. 21 (B) For the purposes of this definition, the 22 right-of-way condition of a road that has been 23 open for at least the previous 5 years shall be 24 VerDate Sep 11 2014 22:09 Nov 30, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H8798.IH H8798 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 8798 IH used as a rebuttable presumption of what is 1 reasonable and necessary. 2 (18) SECRETARY.—The term ‘‘Secretary’’ 3 means the Secretary with management jurisdiction 4 over land owned or controlled by the United States 5 on which a R.S. 2477 right-of-way is claimed to be 6 located. 7 SEC. 4. FILING OF CLAIM. 8 (a) IN GENERAL.—A claimant of a right-of-way 9 granted under R.S. 2477 may file a claim under this sec- 10 tion. 11 (b) ADMINISTRATIVE CLAIM AFTER FILING CLAIM 12 UNDER TITLE 28.— 13 (1) IN GENERAL.—A claimant is deemed to 14 have filed a claim under paragraph (1) if, before the 15 date of the enactment of this Act, the claimant— 16 (A) filed a notice of an intent to file suit 17 with respect to a claim asserting the public ac- 18 ceptance of a right-of-way granted under R.S. 19 2477 under section 2409a(m) of title 28, 20 United States Code; or 21 (B) filed suit with respect to a claim as- 22 serting the public acceptance of a right-of-way 23 granted under R.S. 2477 under section 24 2409a(m) of title 28, United States Code. 25 VerDate Sep 11 2014 22:09 Nov 30, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H8798.IH H8798 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 8798 IH (2) PENDING COURT ACTION.—If a claimant is 1 deemed to have filed a claim under paragraph (1) 2 with respect to a previously filed claim asserting the 3 public acceptance of a right-of-way granted under 4 R.S. 2477 under section 2409a(m) of title 28, 5 United States Code, any suit filed by or on behalf 6 of the claimant with respect to public acceptance of 7 the right-of-way shall, except as to the preservation 8 of evidence, be held in abeyance pending final deter- 9 mination under this Act and shall be dismissed with- 10 out prejudice when acceptance of the right-of-way is 11 finally determined under this Act, and all challenges 12 thereto have been exhausted. 13 (c) FORM; CONTENTS.— 14 (1) FORM.—Not later than 30 days after the 15 date of the enactment of this Act, the Secretary 16 shall establish a form to be used by claimants for fil- 17 ing claims under this section. 18 (2) CONTENTS.—A claim filed under subsection 19 (a)(1) shall include— 20 (A) a center line description, or other 21 verified survey meeting generally accepted 22 standards and procedures, clearly showing the 23 location, route, direction, beginning and end 24 points and length, together with an average 25 VerDate Sep 11 2014 22:09 Nov 30, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H8798.IH H8798 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 8798 IH width of the claimed R.S. 2477 right-of-way as 1 of a date certain; 2 (B) evidence demonstrating the acceptance 3 and scope of the claimed R.S. 2477 right-of- 4 way; and 5 (C) proof of notice or attempted notice by 6 the claimant under subsection (e). 7 (d) PLACE OF FILING.—A claimant shall file a claim 8 in the appropriate State or regional location designated 9 by the Secretary for the filing of claims under this section. 10 (e) NOTICE.— 11 (1) IN GENERAL.—Except as provided in para- 12 graph (3), a claimant shall provide notice of the 13 right-of-way claim by— 14 (A) at least once per week during the 2- 15 week period immediately preceding the filing of 16 the claim, publishing in a newspaper authorized 17 to publish public notice under the laws of the 18 State in which the longest lineal part of the 19 claimed R.S. 2477 right-of-way is located, a 20 general summary of the claim, including the lo- 21 cation and general description of the claimed 22 R.S. 2477 right-of-way; and 23 (B) not later than 30 days after the date 24 on which the claim is filed, providing, or rea- 25 VerDate Sep 11 2014 22:09 Nov 30, 2020 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H8798.IH H8798 kjohnson on DSK79L0C42PROD with BILLS 13 •HR 8798 IH sonably attempting to provide, [Text truncated for display. 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