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Proposed federal legislation - rights-of-way for public use

Resolution on public lands rights-of-way
The Board of County Commissioners passed a resolution regarding the preservation of historic routes granted by R.S. 2477. The resolution supports a federal act Garfield County proposes, which would require federal administrative action on claims for public land access and establish deadlines and mandatory procedures for settling claims.


Garfield County Board of County Commissioners Chair John Martin and County Attorney Frank Hutfless are presenting a proposed federal act to the U.S. Secretary of the Interior and the National Association of Counties in early March. The act would serve to preserve thousands of miles of rights-of-way for public use throughout the United States, including hundreds of miles in Garfield County.

Proposed act


H.R. (or S.) _________

To establish a procedure for resolving claims to rights-of-way under the Revised Statutes, Section 2477 (R.S. 2477), which was previously codified as Title 43, Section 932, United States Code, and which was repealed by Section 706 of the Federal Land Policy and Management Act of 1976 (Public Law 94-579; 90 Statutes 2793).

Date _______ of ________ introduced the following bill, which was referred to the Committee on ___________

To establish a procedure for resolving claims to rights-of-way under the Revised Statutes, Section 2477 (R.S. 2477), which was previously codified as Title 43, Section 932, United States Code, and which was repealed by Section 706 of the Federal Land Policy and Management Act of 1976 ("FLPMA," Public Law 94-579; 90 Statutes 2793).

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

(a) SHORT TITLE. -- This Act may be cited as the "Historic Routes Preservation Act of 2013."

(b) FINDINGS. -- Congress finds the following:

     (1) By the Act of July 26, 1866, Ch. 262, §8 (14 Stat. 251, 253, codified at 43 U.S.C. §932), Congress passed an open-ended grant of "the right of way for the construction of highways over public lands, not reserved for public use." 43 U.S.C. §932 is commonly called Revised Statute §2477 or R.S. 2477. It was repealed by section 706 of the Federal Land Policy Management Act of 1976 ("FLPMA": Public Law 94-579, 90 Stat. 2793).

     (2) The purpose of R.S. 2477 was to encourage the opening, expansion, settlement, use and development of the American West. R.S. 2477 rights-of-way established by use over land in the public domain are not terminated or abandoned by subsequent federal grants of the property underlying the right-of-way, federal attempts to re-acquire the rights-of-way, or reservation by the federal government subsequent to the R.S. 2477 rights-of-way being accepted by public use. Instead, all rights-of-way accepted prior to October 21, 1976, continue as easements that can be used by the public today.

     (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 notice, 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, 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 government have argued for various interpretations regarding the establishment, acceptance and scope of R.S. 2477 rights-of-way. Those disputes have often resulted 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 negotiations, 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 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 created by past laws, such as R.S. 2477, are generally interpreted according to the understanding of terminology at the time of passage:  the historic meaning of the statutory language as determined with reference 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 inconsistent outcomes under similar facts. There is still sentiment, apparent from comments by federal parties 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 certainty to R.S. 2477 right-of-way claims, in 1988 Secretary of the Interior Hodel established a Department of the Interior policy that would verify R.S. 2477 rights-of-way and allow the Department to record them in Department land records if: 1) they were not reserved public lands at the time they were put into public use; 2) there was some minimal "construction" to enable public passage, such as clearing vegetation or removing obstructions; and 3) the R.S. 2477 route was open to public use by pedestrians, pack animal, wagons or motorized vehicles. Nevertheless, the policy did not authorize the Department of the Interior to adjudicate applications for R.S. 2477 rights-of-way.

     (9) A more restrictive approach evolved under Secretary of the Interior Babbitt that, among other restrictions, substantially limited motorized vehicle access to federal lands and required more than mere "use" to establish "construction" necessary to accept a R.S. 2477 right-of-way grant. Accordingly, the Federal Bureau of Land Management (the BLM) was required to determine whether "construction" equivalent to building road structures had occurred in those instances where a R.S. 2477 right-of-way was claimed. See, for example, 59 Fed. Reg. 39216, Aug. 1, 1994.

     (10) Apparently in response to Secretary Babbitt's strict policy, Congress enacted a temporary moratorium, followed by Section 108 of the Omnibus Interior Appropriations Act of 1997, which states in part that "No final rule or regulation of any agency of the federal government pertaining to the recognition, management, or validity of a right-of-way pursuant to [R.S. 2477] 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. See, General Accounting Office Letter of General Counsel, GAO , B-277719, at 1 (Aug. 20, 1997).

     (11) Uncertainty leading to litigation and other expensive forms of dispute resolution regarding public acceptance and right to use R.S. 2477 rights-of-way has persisted for more than 100 years. Although Congress in the early 1990's received a report from the Department of the Interior suggesting a federal administrative process was necessary to formally recognize validly accepted R.S. 2477 rights-of-way, that process has not been implemented and there is limited, inconsistent action by federal administrative agencies and  departments to determine whether a R.S. 2477 grant has been accepted by the public, thus indicating an apparent preference by the federal government to have the courts decide R.S. 2477 claims.

     (12) It is in the best interest of the public and government to establish consistent, clear and conclusive direction to timely evaluate and officially recognize valid R.S. 2477 claims, to provide a legislative framework for objectively achieving those ends within clearly limited timeframes and with minimal executive and administrative involvement, and to minimize costs and delays typically associated with litigating R.S. 2477 claims.

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 administrative action to finally resolve those claims.

As used in this Act, terms have the following meanings:
(a) ABANDON OR ABANDONMENT -- Formal action by the governing body of a claimant taken at a public meeting pursuant to notice that declares all right, title and claim to any right-of-way or right-of-way grant under R.S. 2477 is relinquished.

(b) ACCEPTANCE OR ACCEPTED -- The construction and continuous public use for passage over a R.S. 2477 right-of-way.

(c) AUTHORITY OR AUTHORIZED OFFICER -- The Secretary's designee in the federal department, agency, enclave, reservation or installation under the Secretary's jurisdiction.

(d) CLAIM -- The written document required under Section 3 of this Act, in form established by the Secretary, Authority or Authorized Officer, which shall be made available for use by any claimant within thirty days following the effective date of this Act.

(e) CLAIMANT -- A state, state political subdivision, city, town, county or government parish asserting the existence and public acceptance of a right-of-way under R.S. 2477.

(f) CONSTRUCTION -- Physical activity reasonably necessary, advisable or desirable to allow continuous public use 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.

(g) CONTINUOUS PUBLIC USE -- 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.

(h) DAY(S) -- The twenty-four hour period immediately following twelve 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.

(i) EVIDENCE -- Any item under Section 4 that would be reliable, authentic, probative and persuasive in Federal District Court civil litigation under the Federal Rules of Evidence that are operative on the effective date of this Act.

(j) FLPMA -- The Federal Land Policy and Management Act of 1976 (Public Law 94-579, 90 Stat. 2743, 43 U.S.C. 1701 et seq., effective October 21, 1976).

(k) HIGHWAY OR HIGHWAYS -- Any road, way or other land surface route of travel that the public at large has the right of use for passage, whether by carriage, animal, foot, non-motorized vehicle or motorized vehicle.

(l) PUBLIC -- The people, population or community as a whole.

(m) PUBLIC LANDS -- Land that is owned, controlled by, or subject to the jurisdiction of the United States Government for the benefit of the public and not reserved.

(n) R.S. 2477 RIGHT-OF-WAY GRANT -- 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 construction or continuous public use prior to October 21, 1976.

(o) R.S. 2477 -- That part of "An Act Granting the Right-of-Way to Ditch and Canal Owners Over the Public Lands and for Other Purposes," commonly called the Mining Act of 1866 (the Act of July 26, 1866, ch. 262, §8, 14 Statutes 251, 253; 43 U.S.C. §932), stating "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 October 21, 1976.

(p) RELINQUISHMENT AND DISCLAIMER -- Any type of deed or equivalent document in form suitable for recordation, approved and issued by the Secretary, Authority, or Authorized Officer, disclaiming and relinquishing the interest of the federal government in a R.S. 2477 right-of-way that has been accepted pursuant to the provisions of this Act, and which documents the right of public passage over and within that right-of-way.

(q) RESERVE OR RESERVED -- Action by the United States to withdraw land from the public domain and make it unavailable for appropriation under federal public land laws, including dedication of that land by the United States to a particular use, such as, without limitation, a park, forest, military establishment, national monument, wilderness area, federal enclave, wildlife refuge, water diversion, impoundment, or government power generation, and such withdrawal, dedication, and use for the dedicated purpose occurs prior to the earlier of the R.S. 2477 right-of-way acceptance or October 21, 1976.

(r) SCOPE -- The established public use of the R.S. 2477 right-of-way prior to October 21, 1976, as necessarily improved, expanded, realigned or relocated to meet the public convenience, safety, or exigencies of increased travel in light of its traditional right-of-way uses. Permissible improvements, expansion, realignment or relocation 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, according to reasonable and necessary standards) in light of the R.S. 2477 right-of-way traditional uses as of October 21, 1976.

(s) SECRETARY -- The Secretary of the federal department having management jurisdiction over land owned or controlled by the United States upon which a R.S. 2477 right -of-way is claimed to be located.

(a) CLAIM AND LIMITATION OF ACTION. -- A claimant asserting public acceptance of a right-of-way granted pursuant to R.S. 2477 must file a claim, which shall include supporting evidence and proof of the notice and reasonably attempted notice under subsection 3(c), within the twenty-five year period that shall commence to run on the next business day following the effective date of this Act.

     (1) GENERALLY. --Except as provided by subsection 3(b)(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 Department of Defense, evidence supporting the claim shall be filed with the commanding officer of the military installation or office having ownership or control of the underlying land, or at such other location as designated by the Secretary.

(c) NOTICE. -- Claimant shall provide Notice of the R.S. 2477 right-of-way claim by publishing a general summary of the claim, including the location and general description of the claimed R.S. 2477 right-of-way, in a newspaper 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 government, and to all owners of land contiguous to each edge of that claimed right-of-way. Claimant's reasonable attempt to provide such written notice is sufficient additional notice under this subsection if claimant verifies the reasonable attempt under claimant's written oath or affirmation to that effect filed with the Secretary where the claim is filed.

(d) ABANDONMENT. -- Failure to comply with subsection 3(a), (b) and (c) is, on the first day following the time period in subsection 3(a), an automatic irrevocable 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 between the Claimant and the United States. The continuance authorized by subsection 6(b) shall not apply to this subsection 3(d).


(a) BURDEN OF PROOF. -- Claimant shall establish acceptance by a preponderance of the evidence.


     (1) ACCEPTANCE CONCLUSIVELY AND FINALLY ESTABLISHED. -- Unless the land underlying the claimed R.S. 2477 right-of-way was reserved prior to the earlier of acceptance, or October 21, 1976, acceptance, including continuous public use, location, construction and scope of the R.S. 2477 right-of-way, is conclusively verified, proven and established upon filing, under oath or affirmation by claimant attesting to its authenticity and accuracy, at least one type of evidence related to that right-of-way selected from either subsection 4(c)(1), 4(c)(2), or 4(c)(3); or at least one type of evidence selected from each of two subsections 4(c)(4), 4(c)(5) and 4(c)(6) showing scope and acceptance prior to October 21, 1976. Copies may be used as evidence in place of original documents if they are accompanied by a written declaration, under oath by a custodian, owner, or author, 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 purposed of this Act.

      (2) GRANT WITHDRAWAL. -- Evidence produced by the United States that established the United States reserved the land underlying the alleged R.S. 2477 right-of-way conclusively establishes withdrawal of the federal grant for that right-of-way prior to its acceptance.


     (1) 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 surveys prior to 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 prior to October 21, 1976..

      (2) Maps, plats, maintenance records including actual or estimated costs, photographs, GIS or global positioning data, or other computer-generated image(s) 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 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.

      (3) 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 and territorial records, such as, without limitation, records of the United States Bureau of Land Management, Forest Service, Natural Resources Conservation Service, Soil Conservation Service, Government Land office, Federal Centers or Enclaves, the Smithsonian Institution and Library of Congress.

     (4) Historical records, other than those included under subsection (c)(3), 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 under consideration.

      (5) Written statements by at least two 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 knowledge of the facts that establish acceptance of the R.S. 2477 right-of-way under consideration.

     (6) 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. -- Within thirty days after a R.S. 2477 right-of-way is conclusively established as accepted pursuant to this Section 4, the Secretary, Authority or Authorized Officer shall determine, in writing, whether that right-of-way has been previously abandoned. Failure to make such written determination within that thirty 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 4(d) shall be a final agency action, subject to appeal as provided by Section 5.

(e) DISCLAIMER AND RELINQUISHMENT REQUIRED. -- Subject to subsection 4(d), within sixty days after the evidence to establish a R.S. 2477 right-of-way has been filed pursuant to this Section 4, 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 the R.S. 2477 right-of-way, which document and actions under this Act shall only be subject to review as provided by Section 5(a), and shall not be subject to quiet title proceedings under Section 5(d) or otherwise, or subject to any other judicial or administrative de novo, or on the record, reviews, claims, actions or proceedings. The disclaimer 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 relinquishment 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 final agency action under subsection 4(e) shall be published once in the Federal Register no later than thirty days after the delivery occurs as specified by that subsection.

(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 pursuant to this Act shall be completed and filed by claimant with the Secretary, Authority or Authorized Officer within the time specified by Section 3(a).

(h) ABANDONMENT. -- Failure by the claimant to complete and file a centerline survey as required by subsection 4(g) shall be an abandonment and relinquishment of any and all rights to the R.S. 2477 right-of-way for which the Relinquishment was issued.

(a) JURISDICTION. -- Subject to subsection 4(e), any case or controversy arising under this Act shall be filed in the United States District Court located in the District within which the longest lineal segment of the claimed R.S. 2477 right-of-way is located, which federal Court shall have exclusive jurisdiction to decide the case or controversy regarding that claimed R.S. 2477 right-of-way on the record, subject only to appeal or review on the record under federal appellate court jurisdiction.

(b) LIMITATION OF ACTION. -- Cases shall be filed in the court specified by subsection 5(a) not later than thirty days after the period specified by subsection (4)(f).

(c) PRIOR ADJUDICATION UNAFFECTED. -- A final settlement, or final judgment in any court of competent jurisdiction, where the United States was a party in determining rights to a R.S. 2477 right-of-way prior to the effective date of this Act shall not be affected by this Act.

(d) ACTIONS TO QUIET TITLE UNAFFECTED. -- Subject to the provisions of subsections 4(e) and 5(a), including the expiration of time periods specified therein, this Act shall apply to prohibit federal court actions to quiet R.S. 2477 titles that involve R.S. 2477 claims previously filed under this Act, where a disclaimer and relinquishment are pending or have been issued. Any quiet title action not prohibited by this paragraph must be filed on or before the date specified by Section 3(a).

(a) APPLICATION OF STATE AND FEDERAL LAW. -- This Act shall apply to conclusively establish the acceptance, scope, validity, and abandonment of a R.S. 2477 right-of-way. From and after the date of enactment, the provisions of this Act will be supreme, preempt and control any inconsistency or conflict between provisions of this Act and state law in determining the acceptance, scope, validity and abandonment of a R.S. 2477 right-of-way.

(b) Any deadline established by this Act may be extended one time, for a maximum of three hundred sixty-five days, for good cause stated in writing signed by claimant under oath or affirmation and delivered to the Secretary, Authority or Authorized Officer at least thirty days prior to the deadline to be continued.


Subject to subsection 2(d), within ninety days after the effective date of this Act, the Secretary, Authority and Authorized Officer shall have completed all policies, procedures, delegations, forms and any other action necessary to implement the provisions of this Act and begin processing claims immediately thereafter. The duties and obligations of, or failure to perform by, the Secretary, Authority and Authorized Officer within the scope of this Section 7 is enforceable by injunction, restraining order and official and personal civil liability -- all pursuant to action in any Federal District Court.

Nothing in this Act is intended, or shall be construed, to affect, change, alter, or modify title V of FLPMA or Title XI of the Alaska National Interest Lands Conservation Act (16 U.S.C. 3161 et seq.).

Frank Hutfless
County Attorney
108 8th Street, Suite 219
Glenwood Springs, CO 81601

970-945-9150 | phone
970-384-5005 | fax

Garfield County Administration
108 8th Street, Suite 101
Glenwood Springs, CO  81601

970-945-5004 | phone
970-945-7785 | fax

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