I 

108TH CONGRESS 

1ST SESSION H. R. 1639

To provide a means of resolving claims regarding the continued existence 

of rights-of-way under former section 2477 of the Revised Statutes, 

which was repealed by the Federal Land Policy and Management Act 

of 1976. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 3, 2003

Mr. UDALL of Colorado introduced the following bill; which was referred to 

the Committee on Resources 

A BILL

To provide a means of resolving claims regarding the continued existence of rights-of-way under former section 2477 

of the Revised Statutes, which was repealed by the Federal Land Policy and Management Act of 1976.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE, FINDINGS, AND PURPOSE. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘R.S. 2477 Rights-of-Way Act of 2003’’. 

6 (b) FINDINGS.—Congress finds the following: 

7 (1) In 1866, to assist in the opening of the west 

8 for resource development and settlement, Congress 
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1 enacted a law that granted rights-of-way for the con2 struction of highways across public land not reserved 

3 for public uses. That law was later included in the 

4 Revised Statutes as section 2477 and thus became 

5 popularly known as R.S. 2477. 

6 (2) Section 706 of the Federal Land Policy and 

7 Management Act of 1976 repealed R.S. 2477, but 

8 did not terminate valid rights-of-way existing on the 

9 date of the enactment of the Act. 

10 (3) R.S. 2477 did not require notifying the 

11 Federal Government regarding utilization of specific 

12 grants of highway rights-of-way or documentation in 

13 the public land records regarding claims for such 

14 grants. Therefore, the number and location of 

15 claimed highway rights-of-way under R.S. 2477 are 

16 unknown. However, it is estimated that potential 

17 claims for such rights-of-way could involve thou18 sands of square miles of Federal lands, including 

19 lands now included in the National Forest System, 

20 National Park System, National Wildlife Refuge 

21 System, and National Wilderness Preservation Sys22 tem. 

23 (4) Historically, highway rights-of-way estab24 lished under R.S. 2477 did not present many prob25 lems to Federal land managers because the existence 
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1 of highways constructed on such rights-of-way was 

2 obvious and unquestioned. In recent years, con3 troversies have arisen as to whether certain claimed 

4 routes are valid highway rights-of-way under R.S. 

5 2477. This causes uncertainty both for parties 

6 claiming to possess a property interest in such 

7 routes and for the agencies responsible for managing 

8 Federal lands. 

9 (5) Controversies related to claims under R.S. 

10 2477 have been exacerbated by the absence of uni11 form Federal standards for review of such claims 

12 and by court decisions that have failed to provide 

13 consistent guidance. In addition, some recent State 

14 laws, including laws adopted after the repeal of R.S. 

15 2477, are inconsistent with the statutory require16 ments. To address these problems, in 1992, Con17 gress directed the Secretary of the Interior to study 

18 the history, impacts, and status of R.S. 2477 rights19 of-way, study alternatives to such rights-of-way, and 

20 make recommendations for assessing claims for such 

21 rights-of-way. 

22 (6) Pursuant to this directive, officials of the 

23 Department of the Interior consulted with interested 

24 parties in the public land States and held public 

25 hearings in Alaska, California, Idaho, Oregon, Mon-
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1 tana, Nevada, and Utah. In addition, the Depart2 ment received and reviewed more than 4,000 pages 

3 of written comments. 

4 (7) In June, 1993, the Department of the Inte5 rior released the report of the results of its study to 

6 Congress. The report highlighted the need for a 

7 process whereby validly accepted rights-of-way could 

8 be recognized and administered consistently and 

9 fairly and recommended establishment of a uniform 

10 administrative procedure and standards for deter11 mining within a specified period which claimed 

12 rights-of-way were validly accepted under the R.S. 

13 2477 grant from the Federal Government. 

14 (8) It is in the interest of both claimants and 

15 Federal land managers to provide consistent, coher16 ent guidance regarding evaluation and timely resolu17 tion of claims for rights-of-way based on R.S. 2477. 

18 (c) PURPOSE.—The purpose of this Act is to establish 

19 a deadline for filing of claims for highway rights-of-way 

20 under R.S. 2477 and to provide a process for consider21 ation and resolution of such claims. 

22 SEC. 2. DEFINITIONS. 

23 In this Act: 

24 (1) The term ‘‘abandonment’’ means an inten25 tional relinquishment of a right, title, or claim to a 
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1 right-of-way pursuant to R.S. 2477, which may be 

2 inferred from a preponderance of the evidence show3 ing—

4 (A) the absence of continued public use of 

5 the right-of-way for highway purposes on and 

6 after the latest available date; 

7 (B) the failure of the claimant to perform 

8 lawful routine maintenance on the right-of-way 

9 since the latest available date; or 

10 (C) other conduct by the claimant incon11 sistent with the use of the right-of-way by high12 way traffic. 

13 (2) The term ‘‘appropriate Federal agency’’ 

14 means any Federal agency having management ju15 risdiction over lands owned or controlled by the 

16 United States upon which a R.S. 2477 right-of-way 

17 is claimed to exist. 

18 (3) The term ‘‘authorized officer’’ means—

19 (A) the Secretary of the Federal Depart20 ment having management jurisdiction over 

21 lands owned or controlled by the United States 

22 upon which the longest lineal portion of a R.S. 

23 2477 right-of-way is claimed to exist or that 

24 Secretary’s designee in the Federal agency hav25 ing management jurisdiction over such lands; or 
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1 (B) with respect to a claim involving 

2 former Federal lands, the Secretary of the Inte3 rior or that Secretary’s designee. 

4 (4) The term ‘‘claim’’ means the appropriate 

5 documentation filed under section 3 asserting the ex6 istence of, and a property interest in, a right-of-way 

7 pursuant to R.S. 2477. 

8 (5) The term ‘‘claimant’’ means any State, po9 litical subdivision of a State, or any other person as10 serting the existence and validity of a right-of-way 

11 pursuant to R.S. 2477, except a person who, as of 

12 the date of enactment of this Act, was barred from 

13 bringing a civil action against the United States 

14 under section 2409a of title 28, United States Code, 

15 to adjudicate the title to the relevant lands. 

16 (6) The term ‘‘conservation system unit’’ 

17 means—

18 (A) a unit of the National Park System; 

19 (B) a unit of the National Wildlife Refuge 

20 System; 

21 (C) a component of the National Wild and 

22 Scenic Rivers System; 

23 (D) a component of the National Trails 

24 System; 
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1 (E) a component of the National Wilder2 ness Preservation System; 

3 (F) a National Monument; or 

4 (G) any part of the National Landscape 

5 Conservation System. 

6 (7) The term ‘‘construction’’ means an inten7 tional physical act or series of intentional physical 

8 acts that were intended to prepare, and that accom9 plished preparation of, a highway by a durable, ob10 servable, physical modification of the land along the 

11 entire claimed route to facilitate the safe and effi12 cient passage of four-wheeled highway vehicles. 

13 (8) The term ‘‘former Federal lands’’ means 

14 lands title to which has passed from the United 

15 States to another owner. 

16 (9) The term ‘‘highway’’ means a thoroughfare 

17 along a specific identified route that, prior to the 

18 latest available date, was used by the public, without 

19 discrimination against any individual or group, for 

20 the passage of four-wheeled highway vehicles car21 rying people or goods from one inhabited place to 

22 another inhabited place. 

23 (10) The term ‘‘inventoried roadless area’’ 

24 means one of the areas identified in the set of inven25 toried roadless areas maps contained in the Forest 
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1 Service Roadless Areas Conservation, Final Environ2 mental Impact Statement, Volume 2, dated Novem3 ber 2000. 

4 (11) The term ‘‘latest available date’’ means 

5 the latest date on which a right-of-way pursuant to 

6 R.S. 2477 could have been acquired, which shall be 

7 prior to—

8 (A) October 21, 1976, in the case of lands 

9 that were unreserved public lands as of that 

10 date; or 

11 (B) the date the public lands were reserved 

12 for public uses (such as date of withdrawal 

13 from entry or designation of public use by stat14 ute, Presidential Proclamation or Executive 

15 Order, Secretarial Order, or administrative de16 cision) in the case of public lands reserved for 

17 public uses before October 21, 1976. 

18 (12) The terms ‘‘public lands not reserved for 

19 public uses’’ and ‘‘unreserved public lands’’ means 

20 lands owned by the United States that were avail21 able and open to the public under various public 

22 land laws that provided for disposition to the public, 

23 but lands that had not yet been set aside, dedicated, 

24 withdrawn, reserved, settled, preempted, entered, ap-
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1 propriated, or disposed of, or on which claims had 

2 not been located. 

3 (13) The term ‘‘R.S. 2477’’ means section 2477 

4 of the Revised Statutes, which was codified as sec5 tion 932 of title 43, United States Code, prior to its 

6 repeal by section 706 of the Federal Land Policy 

7 and Management Act of 1976 (Public Law 94–579; 

8 90 Stat. 2793). 

9 (14) The term ‘‘wilderness study area’’ means 

10 Federal land identified as having wilderness charac11 teristics in a land and resources management plan 

12 for a unit of the National Forest System or public 

13 lands being managed pursuant to the Federal Land 

14 Policy and Management Act of 1976 (43 U.S.C. 

15 1701 et seq.) so as not to impair their suitability for 

16 preservation as wilderness through inclusion in the 

17 National Wilderness Preservation System. 

18 SEC. 3. FILING OF CLAIM FOR DETERMINATION OF VALID19 ITY OF R.S. 2477 RIGHT-OF-WAY. 

20 (a) OPPORTUNITY TO FILE CLAIM.—During the 

21 four-year period beginning on the date of the enactment 

22 of this Act, a claimant asserting the existence and validity 

23 of a right-of-way pursuant to R.S. 2477 across lands 

24 owned or controlled by the United States or former Fed-
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1 eral lands may file a claim to that effect pursuant to this 

2 section. 

3 (b) PLACE OF FILING.—

4 (1) GENERAL RULE.—A claimant shall file the 

5 claim in the State or regional office of each appro6 priate Federal agency having management jurisdic7 tion over lands upon which the R.S. 2477 right-of8 way is claimed to exist. 

9 (2) DEFENSE LANDS.—In the case of a claimed 

10 R.S. 2477 right-of-way across lands owned or con11 trolled by the Department of Defense, the claim 

12 shall be filed with the commanding officer of the 

13 military installation having real property account14 ability for such lands. 

15 (3) FORMER FEDERAL LANDS.—In the case of 

16 a claim involving former Federal lands, the claim 

17 shall be filed with the relevant State office of the 

18 Bureau of Land Management and a notice of the 

19 claim shall be provided to the current owner of 

20 record of the lands. 

21 (c) EFFECT OF FAILURE TO MEET FILING DEAD22 LINE OR REQUIREMENTS.—

23 (1) ABANDONMENT.—The failure of a claimant 

24 to timely file a claim under subsection (a) or with 

25 the appropriate Federal agencies under subsection 
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1 (b) shall be deemed to constitute an abandonment 

2 and a relinquishment of any rights purported to 

3 have been acquired under R.S. 2477 related to that 

4 claim. 

5 (2) DETERMINATION AND NOTIFICATION.—If 

6 the authorized officer determines that a claimant 

7 has not met the filing deadline or the other filing re8 quirements, the authorized officer shall notify the 

9 claimant and all other parties of record in writing 

10 and shall notify each appropriate Federal agency 

11 that no further action on the claim is required. The 

12 determination of the authorized officer shall con13 stitute final agency action, subject to review in the 

14 United States District Court for the District of Co15 lumbia or the United States District Court in the 

16 district within which the longest lineal portion of the 

17 claimed R.S. 2477 right-of-way lies. 

18 (3) FILING.—Any action initiated in district 

19 court pursuant to paragraph (2) shall be filed not 

20 later than three years after the date of the written 

21 notice to the claimant from the authorized officer. 

22 (4) LIMITED JUDICIAL REVIEW.—Judicial re23 view of a determination of an authorized officer 

24 under paragraph (2) shall be limited to a review of 

25 the administrative record. 
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1 (d) COORDINATION AMONG APPROPRIATE FEDERAL

2 AGENCIES.—In the review and processing of a valid claim 

3 under section 4, the authorized officer shall be responsible 

4 for coordinating with each appropriate Federal agency 

5 subject to the claim. 

6 (e) LIMITATION.—Except with regard to a claim filed 

7 pursuant to this Act during the period specified in sub8 section (a), no officer, agency, or court of the United 

9 States shall take any action to affirm the validity of any 

10 assertion that any person or entity other than the United 

11 States has a property interest in a right-of-way pursuant 

12 to R.S. 2477. 

13 SEC. 4. ADMINISTRATIVE DETERMINATION OF VALIDITY OF 

14 R.S. 2477 RIGHT-OF-WAY CLAIM. 

15 (a) BURDEN OF PROOF.—

16 (1) BURDEN ON CLAIMANT.—A claimant shall 

17 have the burden to prove that the grant of a right18 of-way pursuant to R.S. 2477 was validly accepted 

19 and not abandoned. 

20 (2) PRESUMPTION.—Any claim or portion of a 

21 claim involving lands that, as of the filing of the 

22 claim, are within a conservation system unit, an 

23 inventoried roadless area, or a wilderness study area 

24 or are former Federal lands shall be presumed to 

25 have been abandoned on the date on which the lands 
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1 became part of the conservation unit or inventoried 

2 roadless area, became subject to management as a 

3 wilderness study area, or became former Federal 

4 lands (whichever applies) unless the claiment estab5 lishes, by clear and convincing evidence, that routine 

6 lawful maintenance and use of the lands for highway 

7 purposes on and after that date were so open and 

8 notorious that management of such lands by the 

9 United States or the transfer of ownership by the 

10 United States was intended to be subject to continu11 ation of the use of the lands for highway purposes. 

12 (b) CONTENTS OF CLAIM.—A claim shall contain suf13 ficient information to permit the authorized officer to de14 termine whether each element of R.S. 2477 was met. At 

15 a minimum, the claim shall contain the following: 

16 (1) The name, affiliation, address, phone num17 ber (and facsimile number if available) of the claim18 ant. 

19 (2) The names, affiliations, addresses, phone 

20 numbers (and facsimile numbers if available) of all 

21 persons or entities with property interests in land 

22 over which the claimed R.S. 2477 right-of-way lies. 

23 (3) Proof of notification of the claim to all such 

24 persons and entities. 
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1 (4) Identification of the entity that would have 

2 a property interest in the claimed R.S. 2477 right3 of-way. 

4 (5) A description of the highway on which the 

5 claim is based, including identification of the high6 way on an official State or local map, if available, 

7 the name and number of the highway, if available, 

8 beginning and ending points, a center-line survey 

9 conducted in accordance with the Bureau of Land 

10 Management Manual of Surveying Instructions 

11 (1973), type of surface, and width. 

12 (6) Evidence of construction of the highway, in13 cluding evidence of use of tools and of expenditures 

14 for highway construction. 

15 (7) Evidence that the claimed route is a high16 way, including evidence of routine maintenance by a 

17 State or local government public highway manage18 ment agency and of public vehicular use. 

19 (8) A statement of whether any photographs, 

20 profiles, constructions, as-built or similar detail 

21 maps or diagrams of the right-of-way, are available 

22 and, if so, where such material may be viewed or 

23 copies obtained. 

24 (9) If the right-of-way has been the subject of 

25 a prior judicial or administrative determination, the 
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1 case or file identification number, the results of the 

2 last action taken, and the dates thereof. 

3 (c) REVIEW OF CLAIM.—

4 (1) REVIEW BY AUTHORIZED OFFICER.—The 

5 authorized officer shall review the evidence sub6 mitted by a claimant to determine whether a claim 

7 of a R.S. 2477 right-of-way contains sufficient evi8 dence to prove construction and use of a highway 

9 over unreserved public lands prior to the latest avail10 able date. 

11 (2) DETERMINATIONS.—If the authorized offi12 cer determines that a claim contains sufficient evi13 dence to prove construction and use of a highway 

14 over unreserved public lands prior to the latest avail15 able date, the authorized officer shall determine 

16 whether the R.S. 2477 right-of-way was subject to 

17 abandonment by the claimant. 

18 (d) CONSULTATION.—

19 (1) IN GENERAL.—In conducting the review of 

20 a claim under subsection (c), the authorized officer 

21 shall consult with the appropriate Federal Agencies, 

22 as well as States and Tribal governments (and in 

23 the case of Alaska, Native Corporations, as defined 

24 in section 3 of the Alaska Native Claims Settlement 
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1 Act (43 U.S.C. 1602)) that own or control lands af2 fected by the claimed R.S. 2477 right-of-way. 

3 (2) NONSTATE CLAIMS.—In conducting the re4 view of a claim brought by a claimant other than a 

5 State or political subdivision thereof, the authorized 

6 officer shall consult with each State and political 

7 subdivision thereof within which lands affected by 

8 the claim are located. 

9 (e) DRAFT ADMINISTRATIVE DETERMINATION.—

10 (1) PREPARATION OF DRAFT.—After review of 

11 all the evidence submitted with respect to a claim, 

12 review of Bureau of Land Management official pub13 lic land records, consultation under subsection (d), 

14 and concurrence by the appropriate Federal agen15 cies, the authorized officer shall prepare a draft ad16 ministrative determination regarding the claim. 

17 (2) PROPOSED FINDINGS.—The draft adminis18 trative determination shall include proposed findings 

19 regarding the following: 

20 (A) Whether the grant of the right-of-way 

21 pursuant to R.S. 2477 over public lands not re22 served for public uses was validly accepted prior 

23 to the latest available date. 

24 (B) If the grant of the R.S. 2477 right-of25 way over public lands not reserved for public 
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1 uses was validly accepted prior to the latest 

2 available date, whether the R.S. 2477 right-of3 way was subject to abandonment by the claim4 ant. 

5 (C) If the grant of the R.S. 2477 right-of6 way over public lands not reserved for public 

7 uses was validly accepted prior to the latest 

8 available date and was not subject to abandon9 ment, a description of the accepted right-of10 way, including its width, type of surface, and 

11 the route between the beginning and ending 

12 points of the right-of-way, as of the latest avail13 able date. 

14 (3) SUBMISSION.—The authorized officer shall 

15 submit the draft administrative determination to the 

16 claimant and publish a notice of the draft adminis17 trative determination in a newspaper of general dis18 tribution in the vicinity of the claim and in the Fed19 eral Register. The notice shall request public com20 ment only on the draft administrative determination. 

21 The public comment period shall last for a minimum 

22 of 60 days. 

23 (f) FINAL ADMINISTRATIVE DETERMINATION.—

24 (1) REVIEW, CONSULTATION, AND PREPARA25 TION.—Within one year after the date of publication 
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1 of the notice of the draft administrative determina2 tion in the Federal Register, the authorized officer 

3 shall review the public comment, if any, and shall 

4 consult with each appropriate Federal agency. Upon 

5 concurrence by each appropriate Federal agency, the 

6 authorized officer shall prepare the final administra7 tive determination. 

8 (2) FINDINGS.—The final administrative deter9 mination shall include the same findings required 

10 under subsection (e)(2). 

11 (3) SUBMISSION.—The authorized officer shall 

12 submit the final administrative determination to the 

13 claimant and publish a notice of the final adminis14 trative determination in the Federal Register. 

15 (g) FINAL AGENCY ACTION; REVIEW.—

16 (1) AVAILABILITY OF JUDICIAL REVIEW.—A 

17 final administrative determination made pursuant to 

18 subsection (f) shall constitute final agency action 

19 subject to review in the United States District Court 

20 for the District of Columbia or the United States 

21 District Court in the district within which the long22 est lineal portion of the claimed R.S. 2477 right-of23 way lies. 

24 (2) FILING.—Any action initiated in district 

25 court pursuant to paragraph (1) shall be filed not 
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1 later than three years after the date of the publica2 tion in the Federal Register of the notice of the final 

3 administrative determination. 

4 (3) LIMITED JUDICIAL REVIEW.—Judicial re5 view of a final administrative determination shall be 

6 limited to a review of the administrative record. 

7 (4) ELECTION TO ACQUIRE.—If judicial review 

8 of an administrative determination results in a de9 termination that the grant of a right-of-way pursu10 ant to R.S. 2477 was validly accepted and not aban11 doned, the United States nevertheless may retain 

12 such exclusive possession or control of the lands tra13 versed by such right-of-way or any part thereof as 

14 it may elect, upon payment to the claimant of an 

15 amount the district court in the same action deter16 mines to be just compensation for such exclusive 

17 possession or control. 

18 (h) RECORDING REQUIREMENTS REGARDING VALID

19 R.S. 2477 RIGHT-OF-WAY.—

20 (1) SURVEY AND FILING.—Within five years 

21 after the date of publication in the Federal Register 

22 of a final administrative determination recognizing a 

23 valid R.S. 2477 right-of-way, the claimant shall file 

24 the center-line survey of such right-of-way with the 
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1 State office of the Bureau of Land Management and 

2 with the appropriate land records of the State. 

3 (2) ABANDONMENT.—The failure of any claim4 ant to complete a center-line survey and to file such 

5 survey with the Bureau of Land Management within 

6 the time period specified in paragraph (1) shall be 

7 deemed to constitute an abandonment and a relin8 quishment of any rights purported to have been ac9 quired under R.S. 2477. 

10 (i) OPTION TO ACQUIRE.—If, within the period speci11 fied in subsection (h)(1), a center-line survey is filed for 

12 a right-of-way across lands owned or controlled by the 

13 United States, the authorized officer, on behalf of the 

14 United States, may elect to retain such exclusive posses15 sion or control of the lands traversed by such right-of-way 

16 or any part thereof as the authorized officer may elect, 

17 upon payment by the United States to the claimant of an 

18 amount the United States District Court for the district 

19 within which the longest lineal portion of the lands in20 volved are located determines to be just compensation for 

21 such exclusive possession or control. 

22 SEC. 5. LAW GOVERNING ADMINISTRATIVE DETERMINA23 TIONS. 

24 (a) RELATIONSHIP OF FEDERAL AND STATE LAW.—

25 In making an administrative determination of whether the 
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1 grant of a right-of-way pursuant to R.S. 2477 over unre2 served public lands was validly accepted prior to the latest 

3 available date, and in determining the scope of any right4 of-way so validly accepted, the authorized officer shall 

5 apply Federal law and the law of the State in which the 

6 claimed right-of-way is located, and which was in effect 

7 on the latest available date, to the extent that such State 

8 law is consistent with Federal law. 

9 (b) EFFECT OF PRIOR ADJUDICATIONS.—If the va10 lidity of any portion of a claimed R.S. 2477 right-of-way 

11 across lands owned or controlled by the United States has 

12 been adjudicated by a court of competent jurisdiction be13 fore the date of the enactment of this Act in a matter 

14 in which the United States was a party, the authorized 

15 officer shall recognize such adjudication. 

16 SEC. 6. RELATIONSHIP TO FEDERAL LAND POLICY AND 

17 MANAGEMENT ACT OF 1976 AND ALASKA NA18 TIONAL INTEREST LANDS CONSERVATION 

19 ACT. 

20 Nothing in this Act is intended to, or shall be con21 structed to, affect, change, alter, or modify title V of the 

22 Federal Land Policy and Management Act of 1976 (43 

23 U.S.C. 1761 et seq.) or title XI of the Alaska National 

24 Interest Lands Conservation Act (16 U.S.C. 3161 et seq.).

Æ