II 114th CONGRESS 2d Session S. 3334 IN THE SENATE OF THE UNITED STATES September 15, 2016 Mr. Flake (for himself, Mr. McCain , and Mr. Heller ) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources A BILL To establish a procedure for resolving claims to certain rights-of-way.

1. Short title This Act may be cited as the Historic Routes Preservation Act . 2. Purpose The purpose of this Act is to achieve judicial and administrative efficiency for, and to reduce the costs typically associated with, resolving right-of-way claims under R.S. 2477 by— (1) reducing the burden on Federal courts by establishing administrative procedures and evidentiary standards for the processing of R.S. 2477 right-of-way claims; and (2) establishing— (A) a deadline for filing R.S. 2477 right-of-way claims; (B) mandatory procedures for considering and acting on the R.S. 2477 right-of-way claims; and (C) uniform legal and evidentiary standards of proof of public acceptance of R.S. 2477 right-of-way claims. 3. Definitions 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 public meeting pursuant to notice that declares all right, title, and claim to a R.S. 2477 right-of-way is relinquished. (2) Acceptance or accepted The terms acceptance and accepted mean— (A) a positive or affirmative action by a State or county governmental authority on or before October 21, 1976, including— (i) a formal resolution or declaration of ownership; or (ii) the inclusion of a highway in an official road map; (B) the construction, improvement, or maintenance of a highway by a State or county governmental authority on or before October 21, 1976; or (C) the continuous use of a highway by the public for a period of not fewer than 5 consecutive years ending on a date that is on or before October 21, 1976. (3) Claim The term claim means the assertion of public acceptance of a R.S. 2477 right-of-way filed under section 4(a). (4) Claimant The term claimant means any State, county, political subdivision or agency of a State, company, or other person asserting the public acceptance of a right-of-way under R.S. 2477. (5) Construction The term construction means the physical activity reasonably necessary, advisable, or desirable to allow continuous public use over a highway according to the intended mode of travel or transportation, which may be established by the use of any tools or equipment, or other means, including mere usage. (6) Continuous public use The term continuous public use means the uninterrupted use of a highway by the public for passage as often as generally regarded by the public to be convenient or necessary depending on the character of the land and the nature of the use. (7) Disclaimer and relinquishment The term disclaimer and relinquishment means any type of deed or equivalent document in a form suitable for recordation that is approved and issued by the Secretary disclaiming and relinquishing the interest of the Federal Government in a R.S. 2477 right-of-way. (8) Evidence The term evidence means any testimony, object, or document described in section 5 that would be reliable, authentic, probative, and persuasive in Federal district court under the Federal Rules of Evidence that are in effect on the date of enactment of this Act. (9) 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, or non-motorized or motorized vehicle. (10) Improvement The term improvement means— (A) the widening of a highway; (B) the horizontal or vertical realignment of a highway; (C) the installation (as distinguished from cleaning, repair, or replacement in kind) of a bridge, culvert, or other drainage structure or conduit; or (D) any significant change in the surface composition of a highway. (11) Maintenance The term maintenance means the preservation of an existing highway, including— (A) the physical upkeep of the highway; (B) the repair of wear or damage to the highway from natural or other causes; (C) the restoration of the shape of the highway; and (D) the gradation of the highway or other measures to ensure that the shape of the highway permits drainage. (12) Public land The term public land means land— (A) that is owned, controlled by, or subject to the jurisdiction of the Federal Government for the benefit of the public; and (B) that was not reserved on the date on which a R.S. 2477 right-of-way grant was accepted. (13) Public or public user (A) In general The terms public or public user mean all natural persons, including Federal lessees, permitees, licensees, invitees, and any other natural person that holds an authorization to enter or use public land. (B) Exceptions The terms public or public user do not include any Federal agent or employee acting within the scope of the employment of the Federal agency or employee. (14) R.S. 2477 The term R.S. 2477 means section 2477 of the Revised Statutes ( 43 U.S.C. 932 ) repealed by section 706 of the Federal Land Policy and Management Act of 1976 ( Public Law 94–579 ; 90 Stat. 2793). (15) R.S. 2477 right-of-way The term R.S. 2477 right-of-way 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. (16) Reserved (A) In general The term reserved means action by the Secretary, before the earlier of a R.S. 2477 right-of-way acceptance or October 21, 1976— (i) to withdraw land from the public domain; (ii) to make the land unavailable for appropriation under public land laws; and (iii) to dedicate the land by the United States to a specific public purpose, such as a park, military establishment, wilderness area, tribal land, or Federal enclave, that does not rely on a R.S. 2477 right-of-way for the public purpose. (B) Exclusion The term reserved does not apply to an action of the Secretary with respect to the designation of a wilderness study area, an area of critical environmental concern, or land with wilderness characteristics. (17) Scope The term scope means the established width of a R.S. 2477 right-of-way as of the date of acceptance, including the area needed to meet the public convenience or safety or the exigencies of increased travel based on the traditional use of a highway (including permissible improvements, realignments, or relocation), and is not limited to the disturbed surface of the highway. (18) Secretary The term Secretary means the Secretary with management jurisdiction over land owned or controlled by the United States on which a R.S. 2477 right-of-way is claimed to be located. 4. Filing of claim (a) In general During the 25-year period beginning on the date of enactment of this Act, a claimant asserting the public acceptance of a right-of-way granted under R.S. 2477 may file a claim under this section. (b) Form; contents (1) Form Not later than 30 days after the date of enactment of this Act, the Secretary shall establish a form to be used by claimants for filing claims under this section. (2) Contents A claim filed under subsection (a) shall include— (A) evidence supporting the claim; and (B) proof of notice or attempted notice by the claimant under subsection (d). (c) Place of filing A claimant shall file a claim in the appropriate State or regional location designated by the Secretary for the filing of claims under this section. (d) Notice (1) In general A claimant shall provide notice of the right-of-way claim by— (A) at least once per week during the 2-week period immediately preceding the filing of the claim, publishing in a newspaper authorized to publish public notice under the laws of the State in which the longest lineal part of the claimed R.S. 2477 right-of-way is located, a general summary of the claim, including the location and general description of the claimed R.S. 2477 right-of-way; and (B) not later than 30 days after the date on which the claim is filed, providing, or reasonably attempting to provide, written notice of the claim to all owners of land contiguous to the boundary of the claimed right-of-way. (2) Attempted notice The reasonable attempt of a claimant to provide written notice under paragraph (1)(B) shall be considered to be sufficient notice under this subsection if the claimant files with Secretary verification of the reasonable attempt under written oath or affirmation. (e) Effect of failure To meet filing deadline or requirements If a claimant fails to comply with the requirements of— (1) subsection (a), the failure shall be considered to be an automatic irrevocable abandonment of any R.S. 2477 right-of-way claim; or (2) subsection (b), (c), or (d), the claim filed by the claimant shall not be processed until the date on which the failure to comply with those subsections is cured. (f) Statue of limitations Except as provided in subsection (a), any statute of limitations for documenting the R.S. 2477 right-of-way is waived. 5. Evidence and final decision (a) Burden of proof 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. (b) Presumptions (1) In general 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— (A) 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 (B) all 3 types of evidence described in subparagraphs (A) through (C) of subsection (c)(2), in the case of demonstrating scope and acceptance before October 21, 1976. (2) Copies 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. (3) Hearsay Hearsay contained in a document or otherwise provided shall be considered reliable, admissible, and probative for the purposes of this Act. (4) Grant withdrawal 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. (c) Description of categories of evidence For the purposes of actions under this Act, there are 2 categories of evidence that shall be considered: (1) Category 1 Category 1 evidence consists of each of the following types of evidence: (A) 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. (B) 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. (C) 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. (2) Category 2 Category 2 evidence consists of each of the following types of evidence: (A) Historical records (other than the records included under paragraph (1)(C)), including original documents, authenticated copies, facsimiles, and computer-transmitted images reliably showing evidence of construction (including tools used, if any), location (including dimensions), fixtures, and other structures, or maintenance by a State or local government of the R.S. 2477 right-of-way. (B) Written 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 of the R.S. 2477 right-of-way. (C) 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. (d) Determination of abandonment (1) In general 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. (2) Failure to make determination 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. (3) Final agency action 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. (e) Disclaimer and relinquishment required (1) In general Subject to subsection (d), not later than 120 days after the date on which evidence to establish 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. (2) Form 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. (3) Recording The disclaimer and relinquishment under paragraph (1) shall— (A) be recorded in the public land records under the jurisdiction of the Secretary; and (B) conclusively establish the title of the claimant to use the R.S. 2477 right-of-way. (4) Review The document delivered by, and any actions of, the Secretary under paragraph (1)— (A) shall only be subject to review as provided in section 6; and (B) shall not be subject to— (i) quiet title proceedings under section 6(d) or any other provision of law; or (ii) any other judicial or administrative de novo or on the record reviews, claims, actions, or proceedings. (5) Federal register notice of final agency action 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. 6. Judicial review (a) Jurisdiction (1) Filing Subject to section 5(e), any case or controversy arising under this Act shall be filed in the district court of the United States for the judicial district in which the longest lineal segment of the claimed R.S. 2477 right-of-way is located. (2) Exclusive jurisdiction A district court described in paragraph (1) shall have the exclusive jurisdiction to decide the case or controversy on the record regarding the claimed R.S. 2477 right-of-way, subject only to appeal or review on the record by a court with appropriate Federal appellate jurisdiction. (b) Filing Any action initiated under subsection (a) shall be filed not later than 30 days after the the date of publication under section 5(e)(5). (c) Prior adjudication not affected Nothing in this Act affects a final settlement or final judgment in any court of competent jurisdiction before the date of enactment of this Act in which the United States was a party in determining rights to a R.S. 2477 right-of-way. (d) Actions to quiet title unaffected (1) In general Subject to this section and section 5, Federal court actions to quiet R.S. 2477 titles that involve R.S. 2477 claims previously filed under this Act in which a disclaimer and relinquishment are pending or have been issued are null and void. (2) Allowable actions Any quiet title action not prohibited under paragraph (1) shall be filed during or before the date described in section 4(a). 7. Applicable law and time extensions (a) Application of State and Federal law (1) In general This Act shall apply with respect to conclusively establishing the acceptance, scope, validity, or abandonment of a R.S. 2477 right-of-way. (2) Preemption In the case of any inconsistency or conflict between the provisions of this Act and State law, this Act shall apply in determining the acceptance, scope, validity, and abandonment of a R.S. 2477 right-of-way. (b) Extension The Secretary shall grant a one-time extension of a deadline established by this Act, for a maximum period of 1 year, for good cause, if the claimant submits to the Secretary, not later than 30 days before the date on which the deadline expires, a written request for the extension signed by the claimant under oath or affirmation. 8. Implementation required (a) In general Subject to section 4(e)— (1) not later than 90 days after the date of enactment of this Act, the Secretary shall complete all policies, procedures, delegations, forms, and any other action necessary to implement this Act; and (2) on the completion of the actions described in paragraph (1), begin processing claims under this Act. (b) Injunction; liability The duties and obligations of, or failure to perform by, the Secretary under this section— (1) are enforceable by injunction or restraining order; and (2) may result in official and personal civil liability. 9. Effect; applicability (a) Effect on other laws Nothing in this Act affects or modifies— (1) title V of the Federal Land Policy and Management Act of 1976 ( 43 U.S.C. 1761 et seq. ); or (2) title XI of the Alaska National Interest Lands Conservation Act ( 16 U.S.C. 3161 et seq. ). (b) Excluded land Nothing in this Act applies to or affects— (1) the use of Department of Defense land or land with respect to which the Department of Defense shares control or jurisdiction; (2) land that is not owned by the United States; or (3) land within the outer boundary of— (A) a unit of the National Park System; or (B) a component of the National Wilderness Preservation System. 10. Repeal of restrictions on regulations Section 108 of the Department of the Interior and Related Agencies Appropriations Act, 1997 ( Public Law 104–208 ; 110 Stat. 3009–200) is repealed.