I 116th CONGRESS 2d Session H. R. 8798 IN THE HOUSE OF REPRESENTATIVES November 20, 2020 Mr. Cook introduced the following bill; which was referred to the Committee on Natural Resources A BILL To establish a procedure for resolving claims to certain rights-of-way, and for other purposes.

1. Short title (a) Short title This Act may be cited as the Historic Routes Preservation Act . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title. Sec. 2. Purpose. Sec. 3. Definitions. Sec. 4. Filing of claim. Sec. 5. Evidence and final decision. Sec. 6. Judicial review. Sec. 7. Applicable law and time extensions. Sec. 8. Implementation required. Sec. 9. Effect; applicability. Sec. 10. Repeal of restrictions on regulations. 2. Purpose The purpose of this Act is to preserve historical access to the public lands by achieving 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 authorizing administrative procedures and establishing evidentiary standards for the processing of R.S. 2477 right-of-way claims; (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 Federal R.S. 2477 right-of-way grants; (3) recognizing and protecting valid existing rights; and (4) requiring that any actions by a successful claimant improving, upgrading or expanding an R.S. 2477 right-of-way are conditioned upon consultation with the Secretary. 3. Definitions In this Act: (1) Abandon or abandonment The terms abandon and abandonment mean formal action by the governing body of a claimant taken at a public meeting pursuant to notice that declares all of claimant’s right, title, and claim to a R.S. 2477 right-of-way is relinquished. (2) Acceptance or accepted The terms acceptance and accepted mean acts on the part of a claimant sufficient to manifest an intent to accept the open congressional offer under R.S. 2477 right-of-way, including— (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 of, or responsibility for maintaining, a highway; or (ii) the inclusion of a highway in an official map that reflects such ownership or maintenance responsibility; (B) the construction, improvement, repair or maintenance of a highway by a State or county governmental authority, or private party 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 title to an R.S. 2477 right-of-way filed under section 4(a)(1). (4) Claimant The term claimant means any State, county, political subdivision or agency of a State, corporation or other person asserting title to a right-of-way under R.S. 2477. (5) Construction The term construction means the physical activity reasonably necessary, advisable, or desirable to allow safe, 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 road and the nature of the use and does not require a determination of frequency of use. Continuous public use includes use that may be interrupted by events of nature or seasonal 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 or relinquishing any ownership interest of the Federal Government in an R.S. 2477 right-of-way, including a deed or equivalent document issued under section 315 of the Federal Land Policy and Management Act of 1976 ( 43 U.S.C. 1745 ), or section (e) of the Federal Quiet Title Act ( 28 U.S.C. 2409a ). A disclaimer issued by the Secretary is valid without judicial adjudication. (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 the enactment of this Act. (9) Highway The term highway means any road, way, right-of-way, or other land surface route of travel over which 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 is distinguished from ordinary maintenance and repair and includes— (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 upgrade in the surface composition of a highway. (11) Maintenance The term maintenance means the preservation of an existing highway, including but not limited to— (A) the physical upkeep of the highway; (B) the repair or replacement of wear or damage to the highway, including to bridges, culverts, or other drainage structures or conduits, from natural or other causes; (C) the restoration of the shape or path of the highway; and (D) the gradation of the highway or other measures to ensure that the shape of the highway permits drainage or safe passage over the highway by the public. (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 other, specific public purpose 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 authorized or otherwise allowed to enter or use public land, and includes Federal lessees, permittees, licensees, and invitees. (B) Exceptions The terms public or public user do not include any Federal agent or employee acting within the scope of their agency or employment. (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 a public right-of-way allowing public use and passage, which could be accepted by a claimant on or before October 21, 1976. (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 or otherwise permit an R.S. 2477 right-of-way for the specific public purpose. (B) Clarification 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, lands not formally designated by Congress as wilderness, or lands with wilderness characteristics. (17) Scope (A) The term scope — (i) means the width of a R.S. 2477 right-of-way as of October 21, 1976, including the area reasonable and necessary to meet the public convenience or safety (including maintenance, repair and realignment) or the exigencies of increased travel, based on the traditional uses of a highway; and (ii) is not limited to the disturbed surface of the highway. (B) For the purposes of this definition, the right-of-way condition of a road that has been open for at least the previous 5 years shall be used as a rebuttable presumption of what is reasonable and necessary. (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 A claimant of a right-of-way granted under R.S. 2477 may file a claim under this section. (b) Administrative claim after filing claim under title 28 (1) In general A claimant is deemed to have filed a claim under paragraph (1) if, before the date of the enactment of this Act, the claimant— (A) filed a notice of an intent to file suit with respect to a claim asserting the public acceptance of a right-of-way granted under R.S. 2477 under section 2409a(m) of title 28, United States Code; or (B) filed suit with respect to a claim asserting the public acceptance of a right-of-way granted under R.S. 2477 under section 2409a(m) of title 28, United States Code. (2) Pending court action If a claimant is deemed to have filed a claim under paragraph (1) with respect to a previously filed claim asserting the public acceptance of a right-of-way granted under R.S. 2477 under section 2409a(m) of title 28, United States Code, any suit filed by or on behalf of the claimant with respect to public acceptance of the right-of-way shall, except as to the preservation of evidence, be held in abeyance pending final determination under this Act and shall be dismissed without prejudice when acceptance of the right-of-way is finally determined under this Act, and all challenges thereto have been exhausted. (c) Form; contents (1) Form Not later than 30 days after the date of the 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)(1) shall include— (A) a center line description, or other verified survey meeting generally accepted standards and procedures, clearly showing the location, route, direction, beginning and end points and length, together with an average width of the claimed R.S. 2477 right-of-way as of a date certain; (B) evidence demonstrating the acceptance and scope of the claimed R.S. 2477 right-of-way; and (C) proof of notice or attempted notice by the claimant under subsection (e). (d) 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. (e) Notice (1) In general Except as provided in paragraph (3), 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. (3) Exception Notwithstanding paragraph (1), a claimant shall be considered to have given sufficient notice under this subsection if the claimant has filed a notice of an intent to file suit, or has filed suit, with respect to the claimed R.S. 2477 right-of-way under section 2409a(m) of title 28, United States Code, on or before the date of the enactment of this Act. (f) 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. (g) Statute of limitations Except as provided in subsection (a)(1), any statute of limitations for asserting title to an R.S. 2477 right-of-way under this section 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) Evidence (1) In general Acceptance 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 one item of evidence from among the categories of evidence described in subsection (c)(1); or (B) at least two items of evidence from among the categories of evidence described in subparagraphs (A) or (B) of subsection (c)(2). (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 that establishes that the United States reserved the land as herein defined underlying the claimed R.S. 2477 right-of-way before acceptance conclusively establishes withdrawal of the Federal grant and defeats the claim. (c) Description of categories of evidence For the purposes of processing claims under this Act, the following categories of evidence shall be considered: (1) Category 1 Category 1 evidence consists of the following types of evidence: (A) Official minutes, resolutions, declarations, or written agreements of a State or county governmental body reflecting or otherwise memorializing a positive or affirmative action by a State or county governmental body accepting a claimed R.S. 2477 right-of-way prior to October 21, 1976. (B) 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 that show that the right-of-way was accepted by a State or county governmental authority prior to October 21, 1976. (C) Maps, plats, maintenance records (including actual or estimated costs of maintenance), photographs, or other computer-generated images demonstrating that the claimed R.S. 2477 right-of-way was regularly maintained by a State or county governmental authority or private individual prior to October 21, 1976. (D) Written or transcribed oral statements given under oath before a notary public, court reporter, judge or any other government official authorized by law to administer oaths or otherwise authenticated stating that the right-of-way was regularly maintained by a State or local government or private individual prior to October 21, 1976. (2) Category 2 Category 2 evidence consists the following types of evidence: (A) In addition to the records described in paragraph (1)(B) and(C), other historical records including original documents, authenticated copies, facsimiles, and computer-transmitted images (including aerial photographs, topographical maps, and government road maps), reliably showing evidence of public usage of a R.S. 2477 right-of-way before October 21, 1976. (B) Written or transcribed oral 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 by public usage of the R.S. 2477 right-of-way before October 21, 1976. (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 by the claimant only in accordance with section 6. (e) Disclaimer and relinquishment required (1) In general Not later than 180 days after the date on which evidence establishing acceptance of 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) Improvement consultation The disclaimer and relinquishment shall clearly state that any future improvement of an R.S. 2477 right-of-way is conditioned upon consultation with the Secretary. (4) 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 the R.S. 2477 right-of-way. (5) Review The document delivered by, and any actions of, the Secretary under paragraph (1)— (A) shall be subject to review only as provided in section 6; and (B) shall not be subject to— (i) quiet title proceedings under any other provision of law; or (ii) any other judicial or administrative de novo or on the record reviews, claims, actions, or proceedings. (6) 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 If a claimant seeks to appeal the denial by the Secretary of a claimed R.S. 2477 right-of-way under this Act, the claimant shall file an appeal of the denial 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 appeal on the record before the Secretary 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 120 days after the date on which the Secretary provides written notice to the claimant of the denial by the Secretary of the claimed R.S. 2477 right-of-way. (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 the enactment of this Act in which the United States was a party in determining rights to a R.S. 2477 right-of-way. 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 1-time extension of up to 180 days for any 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 Not later than 90 days after the date of the enactment of this Act, the Secretary shall complete all policies, procedures, delegations, forms, and any other action necessary to implement this Act and, on the completion of the actions described in paragraph (1), begin processing claims under this Act. (b) Injunction; liability The duties and obligations of 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; (3) land held in trust by the Secretary of the Interior for any Indian Tribe; or (4) land within the boundary of— (A) a National Park (to exclude lands other than National Parks which are under the jurisdiction or administration of the National Park Service); or (B) a congressionally designated National Wilderness Area. (c) Effect on claims This Act and the procedures and process implemented under this Act— (1) shall apply to— (A) claims filed pursuant to this Act after the date of the enactment of this Act; and (B) claims filed before the date of the enactment of this Act for which a final determination has not been issued and which have been converted by claimant for processing under the provisions of this Act by filing the claim under section 4; and (2) shall not affect the ability of a claimant to file or maintain a suit with respect to the claimed R.S. 2477 right-of-way under section 2409a(m) of title 28, United States Code, if the claimant has not filed a claim under section 4 regarding that R.S. 2477 right-of-way. 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.