I 
114TH CONGRESS 
2D SESSION 
H. R. 4313 
To establish a procedure for resolving claims to certain rights-of-way. 
IN THE HOUSE OF REPRESENTATIVES 
JANUARY 5, 2016 
Mr. COOK (for himself, Mrs. KIRKPATRICK, Mr. GOSAR, Mr. STEWART, and 
Mr. TIPTON) 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. 
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, AND PURPOSE. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘Historic Routes Preservation Act’’. 
(b) FINDINGS.—Congress finds the following: 
(1) The Act of July 26, 1866 (43 U.S.C. 932), 
provided for an open-ended grant of ‘‘the right of 
way for the construction of highways over public 
lands, not reserved for public use.’’. 
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(2) The purpose of that Act was to encourage 
the opening, expansion, settlement, use and develop-
ment of the American West. Rights-of-way estab-
lished by use over land in the public domain are not 
terminated or abandoned by subsequent Federal 
grants of the property underlying the rights-of-way 
and Federal attempts to reacquire the rights-of-way 
or reservation by the Federal Government. Instead, 
all rights-of-way accepted before October 21, 1976, 
continue as easements that can be used by the pub-
lic. 
(3) 
Unlike 
rights-of-way 
granted 
under 
FLPMA, the grant of R.S. 2477 rights-of-way was 
complete on its face, and no formalities, such as no-
tice, entry, license, lease, application, deed, patent, 
hearing, or formal public written or oral acceptance 
were required to establish public rights-of-way under 
R.S. 2477. That law simply required some limited 
degree of construction activity on the land necessary 
or advisable to enable passage over it or mere public 
usage for some undefined amount of time. 
(4) When early R.S. 2477 right-of-way grants 
were made and accepted, the United States had no 
laws or regulations governing the establishment or 
use of roads and rights-of-way; so the territories, 
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then the States, provided early interpretive guidance 
on the action the ‘‘use’’ or ‘‘construction activity’’— 
necessary to accept and establish the scope of those 
rights-of-way. 
(5) Some rights-of-way established under R.S. 
2477 were easily identified, including thoroughfares 
that connected settlements, towns and trade centers, 
postal routes, routes for inter-territory commerce, 
and the like. But the rights-of-way for lesser known, 
or lesser used, rights-of-way (perhaps established as 
single-person trails, horse trails, mining trails, fur 
trade routes, wagon routes, and other similar or 
lesser uses) have been more difficult to identify; and 
special interest organizations, business and govern-
ment have argued for various interpretations regard-
ing the establishment, acceptance and scope of R.S. 
2477 rights-of-way. Those disputes have often re-
sulted in unsuccessful settlement negotiations and 
expensive time-consuming litigation to establish R.S. 
2477 rights-of-way. 
(6) After decades of lawsuits, case-by-case ne-
gotiations, law review articles, expert commentary, 
and various issued and reissued government policies 
and procedures on point, there is still no consistent 
definition or agreement regarding what evidence or 
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action is required to establish a R.S. 2477 right-of- 
way, whether State or Federal law governs R.S. 
2477 grants, and what the scope of R.S. 2477 
rights-of-way are today. The uncertainty may be 
due, in substantial part, to the fact that rights cre-
ated by past laws, such as R.S. 2477, are generally 
interpreted according to the understanding of termi-
nology at the time of passage: The historic meaning 
of the statutory language as determined with ref-
erence to the surrounding environment and events of 
the day. 
(7) Although court decisions have provided 
much of the guidance in quieting title to rights-of- 
way under R.S. 2477, they have often incorporated 
differing State law to define the acceptance and 
scope of R.S. 2477 rights-of-way, resulting in incon-
sistent outcomes under similar facts. There is still 
sentiment, apparent from comments by Federal par-
ties in R.S. 2477 litigation, that interpretation and 
application of R.S. 2477 should be left exclusively to 
the Federal Government. 
(8) Apparently intending to bring some cer-
tainty to R.S. 2477 right-of-way claims, in 1988 
Secretary of the Interior Hodel established a De-
partment of the Interior policy that would verify 
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(11) Apparently in response to Secretary 
Babbitt’s strict policy, Congress enacted a tem-
porary moratorium, followed by section 108 of the 
Omnibus Consolidated Appropriations Act, 1997, 
which states, in part, that ‘‘No final rule or regula-
tion of any agency of the Federal Government per-
taining to the recognition, management, or validity 
of a right-of-way pursuant to Revised Statute 2477 
(43 U.S.C. 932) shall take effect unless expressly 
authorized by an Act of Congress subsequent to the 
date of enactment of this Act.’’. That law has been 
determined to be permanent. 
(12) Uncertainty leading to litigation and other 
expensive forms of dispute resolution regarding pub-
lic acceptance and right to use R.S. 2477 rights-of- 
way has persisted for more than 100 years. Al-
though Congress in the early 1990s received a report 
from the Department of the Interior suggesting a 
Federal administrative process was necessary to for-
mally recognize validly accepted R.S. 2477 rights-of- 
way, that process has not been implemented and 
there is limited, inconsistent action by Federal ad-
ministrative agencies and departments to determine 
whether a R.S. 2477 grant has been accepted by the 
public, thus indicating an apparent preference by the 
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Federal Government to have the courts decide R.S. 
2477 claims. 
(13) It is in the best interest of the public and 
government to establish consistent, clear and conclu-
sive direction to timely evaluate and officially recog-
nize valid R.S. 2477 claims, to provide a legislative 
framework for objectively achieving those ends with-
in clearly limited timeframes and with minimal exec-
utive and administrative involvement, and to mini-
mize costs and delays typically associated with liti-
gating R.S. 2477 claims. 
(c) PURPOSE.—The purpose of this Act is to achieve 
judicial and administrative efficiency, and to reduce costs 
typically associated with resolving R.S. 2477 right-of-way 
claims by establishing a deadline for filing those claims, 
establishing mandatory procedures for considering and 
acting on those claims, and requiring Federal administra-
tive action to finally resolve those claims. 
SEC. 2. DEFINITIONS. 
As used in this Act: 
(1) ABANDON OR ABANDONMENT.—The terms 
‘‘abandon’’ and ‘‘abandonment’’ mean normal action 
by the governing body of a claimant taken at a pub-
lic meeting pursuant to notice that declares all right, 
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title and claim to any right-of-way or right-of-way 
grant under R.S. 2477 is relinquished. 
(2) ACCEPTANCE
OR
ACCEPTED.—The terms 
‘‘acceptance’’ and ‘‘accepted’’ mean the construction 
and continuous public use for passage over a R.S. 
2477 right-of-way. 
(3) AUTHORITY
OR
AUTHORIZED
OFFICER.— 
The terms ‘‘Authority’’ and ‘‘Authorized Officer’’ 
mean the Secretary’s designee in the Federal depart-
ment, agency, enclave, reservation or installation 
under the Secretary’s jurisdiction. 
(4) CLAIM.—The term ‘‘claim’’ means the writ-
ten document required under section 3, in form es-
tablished by the Secretary, Authority or Authorized 
Officer, which shall be made available for use by any 
claimant not later than 30 days after the effective 
date of this Act. 
(5) CLAIMANT.—The term ‘‘claimant’’ means 
any person, including a State, State political subdivi-
sion, city, town, county, government parish, com-
pany, or individual, asserting the existence and pub-
lic acceptance of a right-of-way under R.S. 2477. 
(6) CONSTRUCTION.—The term ‘‘construction’’ 
means the physical activity reasonably necessary, ad-
visable or desirable to allow continuous public use 
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over a highway according to the intended mode of 
travel or transportation. Maintenance activities or 
the use of any tools or equipment may, but are not 
required to, establish construction. 
(7) CONTINUOUS PUBLIC USE.—The term ‘‘con-
tinuous public use’’ means the use by the public for 
passage as often as generally regarded by the public 
to be convenient or necessary, during any length of 
time, whether continuous, sporadic, interrupted or 
discontinued, and as the character or location of the 
use has changed from October, 1866, to October 21, 
1976, to meet the exigencies of increased travel in 
light of the traditional passage uses. 
(8) DAY.—The term ‘‘day’’ means 24-hour pe-
riod immediately following 12 o’clock midnight in 
the time zone where the longest lineal part of the 
claimed R.S. 2477 right-of-way is located, excluding 
official Federal holidays. 
(9) EVIDENCE.—The term ‘‘evidence’’ means 
any item under section 4 that would be reliable, au-
thentic, probative and persuasive in Federal District 
Court civil litigation under the Federal Rules of Evi-
dence that are operative on the effective date of this 
Act. 
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(10) FLPMA.—The term ‘‘FLPMA’’ means 
Federal Land Policy and Management Act of 1976 
(43 U.S.C. 1701 et seq.). 
(11) HIGHWAY.—The term ‘‘highway’’ means 
any road, way or other land surface route of travel 
that the public has the right of use for passage, 
whether by carriage, animal, foot, non-motorized or 
motorized vehicle. 
(12) PUBLIC.—The term ‘‘public’’ means peo-
ple, population, or community as a whole. 
(13) PUBLIC LANDS.—The term ‘‘public lands’’ 
means land that is owned, controlled by, or subject 
to the jurisdiction of the Federal Government for the 
benefit of the public and not reserved at the time 
that the right-of-way was created. 
(14) R.S. 2477
RIGHT-OF-WAY
GRANT.—The 
term ‘‘R.S. 2477 right-of-way grant’’ means an 
open-ended grant or dedication of land by the 
United States for rights-of-way allowing public use 
and passage, which could be accepted by construc-
tion or continuous public use before October 21, 
1976. 
(15) R.S. 2477.—The term ‘‘R.S. 2477’’ means 
that part of ‘‘An Act Granting the Right-of-Way to 
Ditch and Canal Owners Over the Public Lands and 
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for Other Purposes,’’ commonly called the Mining 
Act of 1866 (the Act of July 26, 1866, ch. 262, sec-
tion 8, 14, statutes 251, 253; 43 U.S.C. 932), stat-
ing ‘‘And be it further enacted, that the right of way 
for the construction of highways over public lands, 
not reserved for public uses, is hereby granted,’’ as 
that law continued in full force and effect until Oc-
tober 21, 1976. 
(16) RELINQUISHMENT AND DISCLAIMER.—The 
terms ‘‘relinquishment’’ and ‘‘disclaimer’’ mean any 
type of deed or equivalent document in form suitable 
for recordation, approved and issued by the Sec-
retary, Authority, or Authorized Officer, disclaiming 
and relinquishing the interest of the Federal Govern-
ment in a R.S. 2477 right-of-way that has been ac-
cepted pursuant to the provisions of this Act, and 
which documents the right of public passage over 
and within that right-of-way. 
(17) RESERVE OR RESERVED.—The terms ‘‘re-
serve’’ and ‘‘reserved’’— 
(A) mean action by the United States to 
withdraw land from the public domain and 
make it unavailable for appropriation under 
Federal public land laws, which requires dedica-
tion of that land by the United States to a par-
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ticular public use, such as a park, forest, mili-
tary establishment, national monument, wilder-
ness area, Federal enclave, wildlife refuge, 
water diversion or impoundment, or government 
power generation, and such withdrawal, dedica-
tion, and use for the dedicated purpose occurs 
before the earlier of the R.S. 2477 right-of-way 
acceptance or October 21, 1976; and 
(B) do not include Wilderness Study Areas 
and Areas of Critical Environmental Concern. 
(18) SCOPE.—The term ‘‘scope’’ means estab-
lished public use of the R.S. 2477 right-of-way as 
necessarily improved, expanded, realigned or relo-
cated before October 21, 1976, to meet the public 
convenience, safety, or exigencies of increased travel 
in light of its traditional right-of-way uses. Permis-
sible improvements, expansion, realignment or relo-
cation is determined according to the section 2(k) 
highway standards of the State where the longest 
lineal part of the right-of-way is located; or in the 
absence of such standards, ten feet on each side of 
the survey center line, subject to reduction according 
to the historic right-of-way width for the R.S. 2477 
right-of-way traditional uses as of the date of ac-
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ceptance, and necessarily expanded according to the 
first sentence of this paragraph. 
(19) 
SECRETARY.—The 
term 
‘‘Secretary’’ 
means the Secretary of the Federal department hav-
ing management jurisdiction over land owned or con-
trolled by the United States upon which a R.S. 2477 
right-of-way is claimed to be located. 
SEC. 3. PROCEDURE. 
(a) CLAIM AND LIMITATION OF ACTION.—A claimant 
asserting public acceptance of a right-of-way granted pur-
suant to R.S. 2477 must file a claim, which shall include 
supporting evidence and proof of the notice and reasonably 
attempted notice under subsection (c), within the 25-year 
period that shall commence to run on the next business 
day following the effective date of this Act. 
(b) PLACE OF FILING.— 
(1) GENERALLY.—Except as provided by para-
graph (2), the claim must be filed at the State or 
regional location as designated by the Secretary. 
(2) DEFENSE
LAND.—If the land underlying 
the claimed R.S. 2477 right-of-way is subject to the 
ownership or control of the United States Depart-
ment of Defense, evidence supporting the claim shall 
be filed with the commanding officer of the military 
installation or office having ownership or control of 
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the underlying land, or at such other location as des-
ignated by the Secretary. 
(c) NOTICE.—Claimant shall provide notice of the 
R.S. 2477 right-of-way claim by publishing a general sum-
mary of the claim, including the location and general de-
scription of the claimed R.S. 2477 right-of-way, in a news-
paper authorized to publish public notice under the laws 
of the State where the longest lineal part of the claimed 
R.S. 2477 right-of-way is located, once per week for the 
two consecutive weeks immediately preceding the filing of 
the claim. Within the four consecutive weeks immediately 
following the filing of the claim, claimant shall additionally 
provide, or reasonably attempt to provide, written notice 
of the claim to all record owners of land underlying the 
claimed R.S. 2477 right-of-way, except the Federal Gov-
ernment, and to all owners of land contiguous to each edge 
of that claimed right-of-way. Claimant’s reasonable at-
tempt to provide such written notice is sufficient addi-
tional notice under this subsection if claimant verifies the 
reasonable attempt under claimant’s written oath or affir-
mation to that effect filed with the Secretary where the 
claim is filed. 
(d) ABANDONMENT.—Failure to comply with sub-
sections (a), (b), and (c) is, on the first day following the 
time period in subsection (a), an automatic irrevocable 
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abandonment of any R.S. 2477 right-of-way that has not 
been established by final judgment in a court of competent 
jurisdiction or final enforceable settlement agreement be-
tween claimant and the United States. The continuance 
authorized by section 6(b) shall not apply to this sub-
section. 
(e) STATUE OF LIMITATIONS.—Any statute of limita-
tions for documenting the right-of-way after such reserva-
tion is hereby waived except as provided in subsection (a). 
SEC. 4. EVIDENCE AND FINAL DECISION. 
(a) BURDEN OF PROOF.—Claimant shall establish 
acceptance by a preponderance of the evidence. 
(b) PRESUMPTIONS.— 
(1) ACCEPTANCE CONCLUSIVELY AND FINALLY 
ESTABLISHED.—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 affirma-
tion by claimant attesting to its authenticity and ac-
curacy, of— 
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(A) at least one type of evidence related to 
that right-of-way selected from subsection 
(c)(1); or 
(B) at least one type of evidence selected 
from each of two subparagraphs in subsection 
(c)(2) showing scope and acceptance before Oc-
tober 21, 1976. 
(2) COPIES AND HEARSAY IN DOCUMENTS.— 
Copies may be used as evidence in place of original 
documents if they are accompanied by a written dec-
laration, under oath by a custodian, owner, or au-
thor, 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. 
(3) GRANT WITHDRAWAL.—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. 
(c) CATEGORIES OF EVIDENCE.—For the purposes of 
actions under this Act, the following rules apply to cat-
egories of evidence: 
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(1)(A) 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 sur-
veys 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. 
(B) Maps, plats, maintenance records including 
actual or estimated costs, photographs, GIS or glob-
al positioning data, or other computer-generated im-
ages showing the location of the R.S. 2477 right-of- 
way, prepared, made, edited, kept, or relied on, gen-
erally 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. 
(C) 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, 
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and territorial records, such as records of the United 
States Departments of the Interior, Agriculture, or 
Defense, Bureau of Land Management, Forest Serv-
ice, Natural Resources Conservation Service, Soil 
Conservation Service, Government Land office, Fed-
eral Centers or Enclaves, the Smithsonian Institu-
tion and Library of Congress. 
(2)(A) Historical records, other than those in-
cluded under subsection (c)(3), including original 
documents, authenticated copies, facsimiles, and 
computer-transmitted images reliably showing evi-
dence of construction (including tools used, if any), 
location (including dimensions), fixtures and other 
structures, or maintenance by a State or local gov-
ernment of the R.S. 2477 right-of-way under consid-
eration. 
(B) 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. 
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(C) 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. 
(d) DETERMINATION OF ABANDONMENT.—Not later 
than 30 days after a R.S. 2477 right-of-way is conclusively 
established as accepted pursuant to this section, the Sec-
retary, Authority, or Authorized Officer shall determine, 
in writing, whether that right-of-way has been previously 
abandoned by claimant. Failure to make such written de-
termination 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. 
(e) 
DISCLAIMER
AND
RELINQUISHMENT
RE-
QUIRED.—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 
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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 dis-
claimer 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 re-
linquishment shall be in form to allow recording in State 
and local real estate records. 
(f) FEDERAL REGISTER NOTICE OF FINAL AGENCY 
ACTION.—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 sub-
section. 
(g) REQUIREMENT TO TIMELY RECORD CENTERLINE 
SURVEY.—A centerline survey of the R.S. 2477 right-of- 
way disclaimed and relinquished by the United States pur-
suant 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). 
(h) ABANDONMENT.—Failure by claimant to com-
plete and file a centerline survey as required by subsection 
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