I 
110TH CONGRESS 
1ST SESSION 
H. R. 308 
To clarify congressional intent with respect to the nature of rights-of-way 
granted and accepted under former section 2477 of the Revised Statutes, 
and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
JANUARY 5, 2007 
Mr. PEARCE introduced the following bill; which was referred to the 
Committee on Natural Resources 
A BILL 
To clarify congressional intent with respect to the nature 
of rights-of-way granted and accepted under former sec-
tion 2477 of the Revised Statutes, and for other pur-
poses. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE, FINDINGS, PURPOSES. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘R.S. 2477 Rights-Of-Way Recognition Act’’. 
(b) FINDINGS.—Congress finds the following: 
(1) Prior to its repeal by section 706 of the 
Federal Land Policy and Management Act of 1976 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00001
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
(43 U.S.C. 1701 et seq.), section 2477 of the Re-
vised Statutes of the United States (43 U.S.C. 932) 
provided a perpetual grant of a ‘‘right of way for the 
construction of highways over public lands, not re-
served for public uses’’. 
(2) The Federal Land Policy and Management 
Act of 1976 protects R.S. 2477 rights-of-way in ex-
istence on October 21, 1976, the date on which R.S. 
2477 was repealed. 
(3) The R.S. 2477 grant was accepted by estab-
lishing a public highway in any manner recognized 
under State law. 
(4) State law, rather than Federal agency rules 
or regulations, controls how a highway is established 
for purposes of R.S. 2477 rights-of-way. 
(5) Coal and other mineral withdrawal lands 
are ‘‘public lands, not reserved for public uses’’ for 
purposes of R.S. 2477 rights-of-way. 
(6) Federal agencies may not issue rules or reg-
ulations, or adjudicate controversies, relating to R.S. 
2477 rights-of-way. 
(7) State and local governments should consult 
with Federal agencies before beginning road im-
provement projects, but no such consultation is re-
quired for routine maintenance projects, and any 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00002
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
disagreement arising from any such consultation 
should be resolved by courts of law rather than by 
Federal agencies. 
(8) Congress should acknowledge R.S. 2477 
rights-of-way for routes shown in 1976–86 era offi-
cial governmental maps. 
(c) PURPOSES.—The purposes of this Act are— 
(1) to clarify congressional intent with respect 
to the nature of R.S. 2477 rights-of-way in a man-
ner consistent with the findings set forth in sub-
section (b); 
(2) to establish protocols for appropriate Fed-
eral agencies with respect to maintenance, repairs, 
and improvements of R.S. 2477 highways; and 
(3) to acknowledge, recognize, and disclaim all 
right, title, and interest in and to R.S. 2477 rights- 
of-way for roads, streets, highways, and trails across 
Federal land, not reserved for public uses, as re-
corded in timely official governmental maps and sup-
plemented where appropriate by official govern-
mental aerial photographs. 
SEC. 2. DEFINITIONS. 
In this Act, the following definitions apply: 
(1) The term ‘‘R.S. 2477’’ means section 2477 
of the Revised Statutes (43 U.S.C. 932). 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00003
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
(2) The term ‘‘highway’’ means any route over 
which the general public has a right of passage and 
includes any kind of route used for public travel, 
such as a road for motorized vehicles, carriage way, 
navigable river, trail, or footpath. 
(3) The term ‘‘R.S. 2477 highway’’ means a 
highway for which an R.S. 2477 right-of-way exists. 
(4) The term ‘‘R.S. 2477 right-of-way’’ means 
a right-of-way for a highway over Federal lands, not 
reserved for public uses, established by acts on the 
ground sufficient under applicable State law to es-
tablish a highway and thus accept the R.S. 2477 
right-of-way grant. 
(5) The term ‘‘applicable State law’’ means the 
common and statutory laws of the State or territory 
in which a purported R.S. 2477 highway or segment 
thereof is located. 
(6) The term ‘‘public lands’’ means all public 
domain lands that have been owned by the United 
States. 
(7) The term ‘‘public lands, not reserved for 
public uses’’ means— 
(A) any public lands currently under the 
ownership of the United States other than trib-
al lands, national forest reserves, national 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00004
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
parks, national recreation areas, national monu-
ments, congressional wilderness, national wild 
and scenic river system lands, congressionally 
designated wildlife refuge areas, and congres-
sionally designated wilderness study areas; and 
(B) any public lands ever owned by the 
United States before the land was disposed of 
or before the land became tribal lands, national 
forest reserves, national parks, national recre-
ation areas, national monuments, congressional 
wilderness, national wild and scenic river sys-
tem lands, congressionally designated wildlife 
refuge areas, and congressionally designated 
wilderness study areas. 
(8) The term ‘‘appropriate Federal agency’’ 
means the Federal land management agency with 
primary responsibility to manage and administer the 
public land over which a purported R.S. 2477 high-
way or segment thereof is located. 
(9) The term ‘‘official governmental aerial pho-
tograph’’ means any air-to-ground photographic 
image or copy thereof, created by or for, or main-
tained as part of the records of, any department, di-
vision, service, office, bureau, or other agency of the 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00005
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
Federal government or of any State, county, munic-
ipal, or other local government. 
(10) The term ‘‘official governmental map’’ 
means any highway map, tourist map, topographical 
map, plat map, quadrangle, survey map, transpor-
tation map, land use map, general land office map, 
township or grid map or any other map issued by or 
for, or maintained as part of the records of, any de-
partment, division, service, office, or other agency of 
the Federal government or of any State, county, mu-
nicipal, or other local government. 
SEC. 3. CLARIFICATION OF CONGRESSIONAL INTENT WITH 
RESPECT TO THE NATURE OF R.S. 2477 
RIGHTS-OF-WAY. 
Congress makes the following clarifications: 
(1) Prior to its repeal on October 21, 1976, 
R.S. 2477 constituted an unequivocal grant of free 
rights-of-way over public lands not reserved for pub-
lic uses. 
(2) Legal title to an R.S. 2477 right-of-way 
could pass to a State or local government without 
Federal land management agency knowledge, in-
volvement, action, or approval of any kind. 
(3) At the time R.S. 2477 was enacted, Con-
gress incorporated applicable State law regarding 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00006
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
the establishment of highways, and applicable State 
laws established the terms of acceptance for R.S. 
2477 rights-of-way grants. 
(4) Acts on the part of the public, at any time 
prior to October 21, 1976, or the date on which the 
subject land may have been reserved for public uses, 
whichever date is earlier, that were sufficient to cre-
ate a public highway under applicable State law 
caused legal title to an R.S. 2477 right-of-way to 
pass to the respective State and county in which 
such highway was located. 
(5) The applicable laws of each State govern 
the resolution of issues relating to the validity and 
scope of R.S. 2477 rights-of-way, including— 
(A) what constitutes a highway and its es-
sential characteristics; 
(B) what actions are required to establish 
a public highway; 
(C) the length of time of public use, if any, 
necessary to establish a public highway and re-
sulting R.S. 2477 right-of-way; 
(D) the necessity of mechanical construc-
tion to establish a pubic highway and resulting 
R.S. 2477 right-of-way; and 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00007
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
(E) the sufficiency of public construction 
alone without proof of a certain number of 
years of continuous public use to establish a 
public highway and resulting R.S. 2477 right- 
of-way. 
(6) R.S. 2477 applied retroactively to validate 
rights-of-way established prior to the enactment of 
the statute in 1866. 
(7) A highway initially constructed by the Fed-
eral Government became an R.S. 2477 right-of-way 
upon the occurrence of acts on the part of the pub-
lic, at any time prior to October 21, 1976, or the 
date on which the subject land may have been re-
served for public uses, whichever date is earlier, that 
were sufficient to create a public highway under ap-
plicable State law. 
(8) At the time R.S. 2477 was enacted, Con-
gress incorporated the common law regarding what 
constitutes a public highway and its essential char-
acteristics. 
(9) The common law concept of a highway rec-
ognizes that any route over which the general public 
has a right of passage, such as a carriage way, navi-
gable river, or footpath, is a ‘‘highway’’. 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00008
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
(10) Unless specifically provided otherwise by 
applicable State law, a road need not be mechani-
cally constructed in order to establish acceptance of 
an R.S. 2477 right-of-way grant. 
(11) For purposes of establishing an R.S. 2477 
right-of-way, the term ‘‘construction’’ means any one 
of the ways authorized by the laws of the State in 
which the subject land is located, including— 
(A) the minimum construction necessary to 
enable the intended public use of the route, 
such as the moving of boulders, clearing of un-
derbrush and trees, or digging of occasional 
crude dugways; 
(B) actions to build, erect, form, or create 
the route; and 
(C) the forming of the route by repeated 
use and traffic, without a mechanical means of 
construction. 
(12) For purposes of establishing an R.S. 2477 
right-of-way, applicable State law shall determine 
whether proof of construction alone is sufficient 
without proof of continuous public use. Nothing in 
R.S. 2477 is intended to, or shall be construed to, 
prohibit the establishment of an R.S. 2477 right-of- 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00009
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
way under State law upon mere proof of construc-
tion without proof of continuous public use. 
(13) For purposes of establishing an R.S. 2477 
right-of-way, the nature, extent, and degree of con-
tinuous public use necessary to satisfy any State-law 
public continuous use requirements, and the nature, 
extent, and degree of ‘‘construction’’ activities nec-
essary to satisfy any State-law construction require-
ments, are questions to be determined under applica-
ble State law. 
(14) Unless applicable State law provides to the 
contrary, nothing in R.S. 2477 is intended to, or 
shall be construed to, require that roads lead to a 
definite destination or terminus in order to qualify 
as a ‘‘highway’’ for purposes of an R.S. 2477 right- 
of-way grant. 
(15) For purposes of R.S. 2477, the term ‘‘pub-
lic lands, not reserved for public uses’’ includes— 
(A) land subject to the Act entitled ‘‘An 
Act for the protection of surface rights of 
entrymen’’, approved March 3, 1909 (Chapter 
270, 35 Stat. 844; 30 U.S.C. 81); 
(B) land subject to the Act entitled ‘‘An 
Act to provide for agricultural entries on coal 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00010
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
lands’’, approved June 22, 1910 (Chapter 318, 
36 Stat. 583; 30 U.S.C. 83 et seq.); 
(C) land subject to the Act of June 25, 
1910, commonly known as the Pickett Act 
(Chapter 421, 36 Stat. 847; 43 U.S.C. 141 et 
seq.); 
(D) land subject to any coal withdrawal 
made pursuant to the congressional Acts de-
scribed in subparagraphs (A), (B), and (C); 
(E) land withdrawn under Executive Order 
6910, issued November 26, 1934; and 
(F) any other land ‘‘withdrawn’’ but not 
‘‘reserved’’, and land ‘‘reserved’’ but not ‘‘re-
served for public uses’’. 
(16) Any executive branch administrative rule 
or regulation pertaining to the recognition, manage-
ment, validity, or scope of an R.S. 2477 right-of-way 
is prohibited. 
(17) Congress has not delegated to any Federal 
land management agency, or to any other agency in 
the executive branch, primary jurisdiction or other 
authority to adjudicate, formally or informally, any 
claims, disputes, cases, or controversies regarding 
the validity or scope of R.S. 2477 rights-of-way. 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00011
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
Such claims, disputes, cases, and controversies shall 
be adjudicated only through the courts. 
(18) Nothing in this Act is intended nor shall 
be construed to prohibit a Federal land management 
agency from making non-binding determinations of 
validity and scope of R.S. 2477 rights-of-way, if 
such determinations are made solely— 
(A) for the agency’s own internal purposes 
without any intent to be binding or final agency 
actions; and 
(B) for limited purposes such as internal 
planning decisions regarding land use, or in de-
termining the agency’s position in court litiga-
tion. 
(19) Any such Federal land management agen-
cy determination shall not be— 
(A) subject to the requirements of the Na-
tional Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.); 
(B) construed to be a binding agency de-
termination; or 
(C) given any deference or respect in court 
proceedings to adjudicate issues of validity or 
scope of R.S. 2477 rights-of-way, other than 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00012
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
deference to the persuasiveness of that deter-
mination. 
SEC. 4. PROTOCOLS WITH RESPECT TO MAINTENANCE, RE-
PAIRS, AND IMPROVEMENTS OF R.S. 2477 
HIGHWAYS. 
The following protocols apply with respect to mainte-
nance, repairs, and improvements of R.S. 2477 highways: 
(1) Federal agencies shall not require State or 
local governments to consult with or obtain permis-
sion from any Federal land management agency 
prior to performing routine maintenance and repair 
on R.S. 2477 rights-of-way routes, as long as State 
and local governments act within the scope of the 
right-of-way and such maintenance and repair pre-
serves the existing condition of the route. For pur-
poses of this paragraph, ‘‘routine repair and mainte-
nance’’ includes preservation of an existing road, 
physical upkeep, repair of wear or damage from nat-
ural or other causes, maintenance of the shape of 
the road, grading or blading to preserve the char-
acter of the road in accordance with prior practice, 
maintenance to ensure proper drainage, and any 
other activities necessary to preserve the status quo. 
(2) Subject to the consultation requirements 
specified in paragraph (3), Federal land manage-
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00013
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
ment agencies shall permit improvements by a State 
or local government to an R.S. 2477 right-of-way 
route, beyond routine maintenance and repair, if 
such improvements are reasonable and necessary for 
the type of use to which the route was put prior to 
October 21, 1976, or the date on which the subject 
land may have been reserved for public uses, which-
ever date is earlier. Federal agencies shall not re-
quire State and local governments to maintain an 
R.S. 2477 right-of-way route in precisely the same 
condition it was on October 21, 1976, or the date 
on which the subject land may have been reserved 
for public uses, whichever date is earlier, but shall 
permit those improvements which are reasonably 
necessary to meet the exigencies of increased travel 
so long as they are done in light of traditional uses 
to which the right of way was put as of October 21, 
1976, or the date on which the subject land may 
have been reserved for public uses, whichever date is 
earlier, as determined pursuant to State law. 
(3)(A) For proposed improvements to an R.S. 
2477 right-of-way route that go beyond routine 
maintenance and repair, the appropriate Federal 
agency shall require State and local governments to 
consult with the agency before allowing such im-
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00014
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
provement projects to proceed. Examples of improve-
ment projects that go beyond routine maintenance 
and repair are the following: widening of a road; 
horizontal or vertical realignment; installation of 
bridges, culverts, and other drainage structures; sig-
nificant change in surface composition; and grading 
or blading for the first time. The appropriate Fed-
eral agency shall require State and local govern-
ments to advise the agency of the proposed improve-
ment sufficiently in advance of the proposed im-
provement project to afford the Federal agency a 
fair opportunity to perform its duties, including the 
following: 
(i) To determine whether the proposed im-
provement is fair and reasonable in light of the 
traditional uses of the right-of-way as of Octo-
ber 21, 1976, or the date on which the subject 
land may have been reserved for public uses, 
whichever date is earlier. 
(ii) To study potential effects and deter-
mine if the proposed action would impair or de-
grade the surrounding lands. 
(iii) To determine whether modifications in 
the proposed improvement plans should be 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00015
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
made to protect the surrounding lands and pro-
pose those modifications, if appropriate. 
(iv) To perform the duties described in this 
subparagraph in a timely and expeditious man-
ner, and refrain from using agency authority, 
either by delay or unreasonable disapproval, to 
impair the rights of the R.S. 2477 right-of-way 
holder. 
(B) In the event of a disagreement over the 
proposed improvement project after the consultation 
process described in subparagraph (A), the appro-
priate Federal agency shall resort to the courts for 
resolution of the disagreement before allowing the 
State or local government to proceed with the 
project. The decision of the court shall govern 
whether and on what terms the improvement project 
may proceed. 
(C) No Federal agency action carried out while 
performing the duties set forth in subparagraph (A) 
constitutes a binding agency determination deserving 
of any deference or respect in court proceedings to 
adjudicate issues of validity or scope of an R.S. 
2477 right-of-way, other than deference to the per-
suasiveness of that determination. 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00016
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
(D) For all proposed improvement projects 
within the scope of an R.S. 2477 right-of-way, as 
understood on October 21, 1976, or the date on 
which the subject land may have been reserved for 
public uses, whichever such date is earlier, and as 
determined under applicable State law, Federal 
agency action carried out while performing the du-
ties set forth in subparagraph (A) shall not be sub-
ject to the requirements of the National Environ-
mental Policy Act of 1969 (42 U.S.C. 4321 et seq.). 
SEC. 5. ACKNOWLEDGMENT AND RECOGNITION OF VALID-
ITY OF CERTAIN R.S. 2477 RIGHTS-OF-WAY RE-
CORDED IN OFFICIAL GOVERNMENTAL MAPS 
AND 
AERIAL 
PHOTOGRAPHS, 
AND 
DIS-
CLAIMER OF ALL RIGHT, TITLE, AND INTER-
EST WITH RESPECT THERETO. 
Without limiting the ability of States and counties to 
assert, claim, and pursue legal recourse with respect to 
other possible R.S. 2477 public rights-of-way claims as 
provided by law, Congress hereby acknowledges, confirms, 
recognizes, and forever disclaims, in favor of the respective 
State and county of location, as joint tenants, the fol-
lowing as having heretofore validly vested under R.S. 
2477: 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00017
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
(1) PRE–OCTOBER
21, 1976, GOVERNMENTAL 
TRANSPORTATION MAPS.—A public right-of-way over 
Federal land (or any Federal-land portion of a pub-
lic right-of-way over both Federal and non-Federal 
land) for each and every highway shown on any offi-
cial governmental map that was published on or be-
fore October 21, 1976, excepting those portions that 
run over Federal land already reserved for public 
uses before the date on which the relevant govern-
mental map issued. For purposes of R.S. 2477 and 
this paragraph, lands subject to withdrawal under 
the Acts described in sections 3(15)(A), 3(15)(B), 
and 3(15)(C), or subject to any other subsurface 
mineral and energy withdrawal, do not constitute 
‘‘Federal land already reserved for public uses’’. 
(2) OFFICIAL
GOVERNMENTAL
MAPS
PUB-
LISHED BETWEEN OCTOBER 21, 1976, AND OCTOBER 
21, 1986.—A public right-of-way over Federal land 
(or any Federal-land portion of a public right-of-way 
that crosses over both Federal and non-Federal 
land) for each and every highway shown on any offi-
cial governmental map that was published between 
October 21, 1976, and October 21, 1986, excepting 
those portions that run over Federal land already re-
served for public uses before the date on which the 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00018
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
relevant government map issued; Provided, that the 
given road, street, highway, or trail also appears in 
an official governmental aerial photograph taken on 
or before October 21, 1976, or the date on which the 
subject land may have been reserved for public uses, 
whichever date is earlier, in which case the form, lo-
cation, and scope of the right-of-way illustrated in 
the aerial photograph shall control the extent of the 
right-of-way acknowledged, confirmed, recognized, 
and disclaimed herein. For purposes of R.S. 2477 
and this paragraph, lands subject to withdrawal 
under the Acts described in sections 3(15)(A), 
3(15)(B), and 3(15)(C), or subject to any other sub-
surface mineral and energy withdrawal, do not con-
stitute ‘‘Federal land already reserved for public 
uses’’. 
SEC. 6. RELATIONSHIP TO THE FEDERAL LAND POLICY 
AND MANAGEMENT ACT OF 1976 AND THE 
ALASKA NATIONAL INTEREST LANDS CON-
SERVATION ACT. 
Nothing in this Act is intended to, or shall be con-
strued to, affect, change, alter, or modify title V of the 
Federal Land Policy and Management Act of 1976 (43 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00019
Fmt 6652
Sfmt 6201
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS
U.S.C. 1761 et seq.) or title XI of the Alaska National 
Interest Lands Conservation Act (16 U.S.C. 3161 et seq.). 
Æ 
VerDate Aug 31 2005 
05:24 Jan 09, 2007
Jkt 059200
PO 00000
Frm 00020
Fmt 6652
Sfmt 6301
E:\BILLS\H308.IH
H308
ccoleman on PROD1PC71 with BILLS