[Federal Register Volume 59, Number 146 (Monday, August 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18622]
[[Page Unknown]]
[Federal Register: August 1, 1994]
_______________________________________________________________________
Part IX
Department of the Interior
_______________________________________________________________________
Office of the Secretary
43 CFR Part 39
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Bureau of Land Management
43 CFR Part 2820
_______________________________________________________________________
National Park Service
36 CFR Part 14
_______________________________________________________________________
Fish and Wildlife Service
50 CFR Part 29
Revised Statute 2477, Rights-of-Way; Proposed Rules
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 39
RIN 1090-AA44
Revised Statute 2477 Rights-of-Way
AGENCIES: Bureau of Land Management, National Park Service, Fish and
Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would implement the Secretary of the
Interior's June 1, 1993, recommendation to Congress that the Department
of the Interior (Department) promulgate regulations addressing rights-
of-way pursuant to Revised Statute (R.S.) 2477 across lands now
administered by the Bureau of Land Management, the National Park
Service, and the U.S. Fish and Wildlife Service. R.S. 2477--a provision
adopted by Congress in 1866 that granted a right-of-way for the
construction of highways across public land not reserved for public
uses--was repealed in 1976, but valid existing rights-of-way were not
terminated.
There is not currently in place any formal administrative process
by which those who claim R.S. 2477 rights-of-way can have the
Department make binding determinations of their existence and validity.
Furthermore, inconsistent court interpretations and incomplete guidance
from the Department over the years have done little to elucidate the
nature of the rights acquired. This proposed rule is intended to
clarify the meaning of the statute and provide a workable
administrative process and standards for recognizing valid claims.
DATES: Comments must be submitted in writing by September 30, 1994.
Comments received after this date may not be considered in the
decision-making process on the issuance of the final rule.
ADDRESSES: Comments on these proposed regulations should be sent to:
U.S. Department of the Interior, Main Interior Building, 1849 C Street,
N.W., room 5555, Washington, DC 20240. All comments received will be
available for public review in room 5555 at the above address between
the hours of 7:45 a.m. to 4:15 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT: Bureau of Land Management: Ron
Montagna, (202) 452-7782, or Ted D. Stephenson, (801) 539-4100.
National Park Service: Dennis Burnett, (202) 208-7675. U.S. Fish and
Wildlife Service: Duncan Brown, (703) 358-1744.
SUPPLEMENTARY INFORMATION:
Background
R.S. 2477 states simply: ``The right-of-way for the construction of
highways over public lands, not reserved for public uses, is hereby
granted.'' Originally, the grant was Section 8 of ``An Act Granting
Right of Way To Ditch and Canal Owners Over The Public Lands, and For
Other Purposes,'' also known as the Mining Act of 1866. In 1873 Section
8 was codified as Section 2477 of the Revised Statutes, hence the
reference as R.S. 2477. In 1938 the statute was recodified as 43 U.S.C.
932. On October 21, 1976, R.S. 2477 was repealed by the Federal Land
Policy and Management Act of 1976 (FLPMA). Public Law 94-579, Section
706(a), 90 Stat. 2744, 2793 (1976). FLPMA did not terminate valid
rights-of-way existing on the date of its approval. Section 509(a), 90
Stat. 2781, 43 U.S.C. 1769; Section 701(a), 90 Stat. 2786, 43 U.S.C.
1701 note.
Although this more than a century-and-a-quarter-old provision was
repealed nearly 18 years ago, interpreting it today remains important,
because valid rights-of-way existing at repeal were not terminated. In
recent years, there has been growing controversy, concentrated in two
Western States, over whether specific claimed access routes ought to be
considered ``highways'' that were ``constructed'' pursuant to R.S.
2477, and if so, the extent of the rights thus obtained. This
controversy stems in large part from the lack of specificity in the
statutory language, which has helped create unrealistic expectations in
interested local and State governments, environmental and wilderness
protection groups, and other Federal land users. In addition, the
language of R.S. 2477 causes uncertainty and potential conflict for
Federal land managers charged with managing and protecting Federal
lands according to current environmental and land use laws.
For several years both Congress and the Department have given
attention to the problems posed by R.S. 2477. Most recently, in the
Conference Report on the Fiscal Year 1993 Appropriations Bill for
Interior and Related Agencies (September 24, 1992), Congress directed
the Department of the Interior to study the history, impacts, status,
and alternatives to R.S. 2477 and to prepare a report that provided
sound recommendations for assessing the validity of claims. On June 1,
1993, the Secretary of the Interior submitted to Congress the United
States Department of the Interior Report to Congress on R.S. 2477: The
History and Management of R.S. 2477 Rights-of-Way Claims on Federal and
Other Lands (Report). In the Report, the Secretary informed Congress
that the Department of the Interior (DOI) would promulgate regulations
to address these ongoing concerns.
During preparation of the Report, the Department obtained public
participation in two stages. Preliminary scoping meetings were held in
December 1992 and January 1993 in eight western cities. Over 4,000
pages of public comments were received and reviewed. These comments
were instrumental in preparing a March 1993 draft of the Report, which
was circulated to approximately 4,000 interested parties. Seven
additional public meetings were held to solicit comments on the draft.
Approximately 1,000 pages of further comments were provided to the
Department. All public input received in this process was considered in
preparation of this proposed rule.
Need for the Regulations
Thousands of miles of highways have been constructed across the
public domain, including many existing State and county highways in the
Western United States, under the authorization of R.S. 2477 and similar
provisions. Rights-of-way validly acquired pursuant to R.S. 2477 are
historic and important means of access to and across Federal lands for
local citizens, recreationists, and Federal land managers performing
official duties.
Historically, these rights-of-way have not presented many problems
to land managers, because in general their existence is obvious and
unquestioned. However, in some locales in recent years, competing ideas
about the purposes for which Federal lands should be managed have
mirrored competing interpretations of what the R.S. 2477 statute
granted. Some State and county governments, intent on maintaining a
road infrastructure for their citizens and providing for economic
development, have turned to R.S. 2477 as a guarantee of access across
and to Federal lands, believing it to provide simpler and less
restrictive access than other Federal laws. There are some proponents
of unlimited and unregulated access to Federal lands who view R.S. 2477
as a mechanism on which they believe they can rely to circumvent the
protective requirements of current environmental and land use law and
to authorize the present expansion of footpaths and animal trails into
highways. Some environmental groups view R.S. 2477 with alarm,
believing it to have been resurrected so long after its repeal as a
weapon to defeat the designation of existing and potential wilderness
areas (which are roadless by definition). These widely varying views
have created controversy and exacerbated management problems for both
holders of the rights-of-way and Federal land managers.
In the current situation, it is difficult for Federal land
managers, local governments, and public land users to know which right-
of-way claims are valid and where they lie. These proposed regulations
are intended to clarify the provision in its historic context and to
provide a formal administrative process--as an alternative to
potentially expensive and lengthy judicial proceedings--by which
validly acquired rights-of-way will be recognized and regulated.
R.S. 2477 has been the subject of inconsistent interpretations. The
statutory terms ``highway,'' ``construction,'' and ``public lands not
reserved for public uses'' have not been defined completely or
consistently, resulting in uncertainty for all parties about the exact
nature and extent of the grant. In the absence of uniform Federal
guidance, court decisions--sometimes applying widely varying State
laws--have also failed to provide consistent or complete
interpretations. Some recent State laws, including some adopted after
the repeal of R.S. 2477, employ overly broad definitions or are
otherwise inconsistent with the statutory requirements.
Federal land managers need consistent, coherent guidance on how to
apply this provision and how to manage its potential conflicts with
other existing laws. State and local governments and public land users
need greater certainty. This proposed rule would clarify the legal
meaning of these terms so that validly acquired rights-of-way can be
recognized and regulated consistently and fairly.
In most cases, records do not exist documenting the existence of
rights-of-way. Highways constructed pursuant to R.S.2477 did not
require any specific, formal approval from the Federal government, so
they were not generally recorded on the public land records. A Federal
regulation published in 1980 requested claim holders to notify the
Bureau of Land Management (BLM) of the existence of claims, but it also
expressly said that the filing or failing to file a claim would have no
legal effect. 43 CFR 2802.5(b) (1980). The response elicited by this
request was therefore incomplete.
This uncertainty can cloud the title of Federal, State, local,
private, and Indian or Alaska Native lands with possible unrecorded
restrictions and interfere with the ability of property owners and land
managers to manage or plan for uses of the land. The uncertainty also
leaves claimants with undefined and unrecorded rights and the potential
for confusion in trying to use or enforce those rights.
The ability of Federal agencies to meet their statutory obligations
is compromised if claims are not identified with finality. For example,
land use planning to provide for orderly and responsible decisionmaking
on Federal lands is adversely affected if previously unnoticed or
unused R.S. 2477 rights-of-way can be claimed for an indefinite period.
Federal land managing agencies are required by existing laws to prepare
long-term land use planning documents that identify and analyze the
condition of the land, current and future uses, current and future
environmental protection measures, and other measures to establish an
appropriate management scheme. Preparation of these land use plans,
whether they are General Management Plans prepared for each unit of the
National Park Service or Resource Management Plans prepared for BLM
lands, is a lengthy, complex process designed to meet existing legal
requirements, the needs of the public, and the resource.
This rule intends to establish a process to determine which claims
to rights-of-way were validly acquired, by requiring the filing of a
claim within specified time periods. Besides offering a way to have
rights validated without pursuing court actions, finalizing claims
within a set time period will give claimants more security, because as
time passes it will become increasingly difficult to determine which
rights-of-way were validly acquired. After the locations of claimed
rights-of-way are known, Federal land managing agencies will be better
able to plan for and manage the Federal lands.
R.S. 2477 and Other Means of Access to and Across Federal Lands
Although R.S. 2477 was repealed in 1976, other methods exist of
obtaining access to or across Federal lands. There are, in fact,
several provisions and means of obtaining access across Federal lands
other than R.S. 2477. If a right-of-way under R.S. 2477 is determined
not to exist, or to be limited in scope, access may still be obtained
under, and consistent with, these other laws allowing access.
Most access across public lands is accomplished informally under
the privilege of casual use (defined at 43 CFR part 2800), without the
necessity of special permission. Refuge and park visitors or public
land users travel under the terms of casual use or other implied rights
that do not require a right-of-way permit or other authorization.
Reasonable access is generally made available to persons engaged in
valid uses of the public lands such as mining claims, mineral leasing,
livestock grazing, and others. Provisions of the Alaska National
Interest Lands Conservation Act (ANILCA) provide for reasonable access
across Federal lands to inholdings including those within National
Forests and within blocks of public land managed by BLM.
Rights-of-way for roads or other access can be applied for under
several other provisions of existing Federal law such as Title V of
FLPMA. Access is sometimes obtained also through reciprocal road
agreements between a Federal agency and parties seeking access across
Federal land. This authority is found at 43 CFR 2801.1-2.
For rights-of-way in Alaska, Congress has provided certain special
provisions. These include public easements across selected Native
corporation lands pursuant to Section 17(b) of the Alaska Native Claims
Settlement Act (ANCSA) and the Transportation and Utility Corridor
system process under Title XI of ANILCA.
Regulation of Valid R.S. 2477 Rights-of-Way
Congress enacted R.S. 2477 during a period when the Federal
Government was promoting settlement of the West. In the same era and in
the same manner, Congress granted rights-of-way for numerous purposes,
perhaps most commonly for the construction of railroads. R.S. 2477 was
part of an Act that granted other types of rights-of-way and certain
mining rights. Later recodified along with other rights-of-way
provisions, this simple statute had a very specific purpose, limited by
its own terms, to authorize the construction of highways across the
public domain. There is no legislative history elaborating on Congress'
intent in passing this provision.
With the passage of FLPMA, Congress determined that lands managed
by the Bureau of Land Management should be retained in public ownership
and managed according to the principles of multiple use and sustained
yield, while preventing unnecessary or undue degradation of the lands.
43 U.S.C. 1732(a),(b). FLPMA also sets forth a process for areas to be
reviewed and designated as Wilderness Study Areas (WSA) while Congress
considers inclusion of these areas in the National Wilderness
Preservation System. Section 603(c) of FLPMA requires that these areas
are to be managed under FLPMA and ``other applicable law'' in a manner
that will preserve the suitability for designation as wilderness and to
prevent unnecessary or undue degradation and to provide environmental
protection. 43 U.S.C. 1732(c).
In addition to providing for new management standards, FLPMA
repealed R.S. 2477 and numerous other similar provisions, and provided
a new, consolidated process for the granting and management of rights-
of-way over Bureau of Land Management lands (and National Forest
lands). Public Law 94-579, Section 706(a), 90 Stat. 2744, 2793 (1976);
FLPMA, Title V, 43 U.S.C. 1761-1771. FLPMA neither terminated existing
rights-of-way, nor exempted them from regulation under its standards.
Public Law 94-579, Section 701(a), 90 Stat. 2786, 43 U.S.C. 1701 note.
See also, Sierra Club v. Hodel, 848 F.2d 1068, 1086-1088 (10th Cir.
1988) (valid existing R.S. 2477 right-of-way can be regulated by BLM to
prevent unnecessary and undue degradation).
Similarly, when Congress passed laws creating the National Park
System and the National Wildlife Refuge System, it imposed new, more
protective management standards on these categories of Federal land and
directed the Department to uphold these standards. When most parks or
refuges were created, pre-existing rights including rights-of-way
usually were not terminated, but became subject to the new management
regime. For example, the courts have interpreted the authority of the
National Park Service to include regulation of pre-existing R.S. 2477
rights-of-way across National Parks. United States v. Vogler, 859 F.2d
638 (9th Cir. 1988), cert. denied, 488 U.S. 1006 (1989).
R.S. 2477 must be read against these requirements. While existing
rights pursuant to R.S. 2477 were not terminated, their preservation
did not provide prospective, unrestricted authority to create or
improve highways without regard for the purposes of these land
management systems, or other environmental and resource protection
laws. That is, rights-of-way validly acquired pursuant to R.S. 2477
remain subject to regulation under the Federal laws that govern the
underlying and adjacent Federal lands. An Advance Notice of Proposed
Rulemaking, published separately today, announces that the Department
is considering whether and how to promulgate specific regulations to
address the management of R.S. 2477 rights-of-way.
Role of State and Federal Law
The relationship between State and Federal law is important both
for determining whether a right-of-way was validly acquired and for
determining the scope of a right-of-way. The proposed rule states that
Federal law controls interpretation of the offer made by R.S. 2477, but
that claimants are required also to comply with State law, which
therefore may further condition the acceptance of a right-of-way or
define its scope. A claimant cannot, however, accept under State law
something that was not offered by Federal law.
The interplay between State and Federal law has created some
confusion, which this proposed rule is intended to eliminate. The rule
would continue to recognize the role of State law, to the extent that
State law is consistent with the baseline requirements of Federal law.
The Department is authorized to recognize only those interests in the
Federal lands that have been established in accordance with the
directions of Congress. It cannot recognize highways purported to be
established under State laws that do not meet the minimal Federal
statutory requirements, written into R.S. 2477, for construction of a
highway over unreserved public lands.
This position was articulated as early as 1898. Secretary C.N.
Bliss reviewed an Order of the Board of County Commissioners of Douglas
County, Washington, which declared that with respect to R.S. 2477, all
section lines in the county would be the center lines or side lines of
highways that would be hereby declared to be 60 feet in width.
Observing that the county's order ``embodies the manifestation of a
marked and novel liberality on the part of the county authorities in
dealing with the public land,'' the Secretary affirmed the decision of
the General Land Office that such State action could not validly accept
the R.S. 2477 grant. The Secretary's decision provides guidance on the
appropriate interpretation of these issues still before the Department
nearly one hundred years later:
There is no showing of either a present or a future necessity
for these roads or that any of them have been actually constructed,
or that their construction and maintenance is practicable. Whatever
may be scope of the statute under consideration it certainly was not
intended to grant a right of way over public lands in advance of an
apparent necessity therefor, or on the mere suggestion that at some
future time such roads may be needed.
26 I.D. 446, at 447 (1898).
As this decision illustrates, R.S. 2477 was intended to convey a
right-of-way for highway purposes upon actual construction, and not
merely upon the suggestion that a State or local government might need
a highway in a suggested location at a later time.
The Department has referred to State law to fill in gaps in the
terms of R.S. 2477. See 43 CFR 244.55 (1939); BLM Manual, Rel. 2-229.
This is consistent with the approach taken by Federal courts, which
have recognized that while the scope of a grant of Federal lands is a
question of Federal law, and that any doubt as to the scope of the
grant under R.S. 2477 must be resolved in favor of the Government, the
Department may properly look to State law to determine the scope of a
right-of-way. See, e.g., United States v. Gates of the Mountains
Lakeshore Homes, 732 F.2d 1411, 1413 (9th Cir. 1984); Sierra Club v.
Hodel, 848 F.2d 1068 (10th Cir. 1988).
When R.S. 2477 was repealed, the ability to acquire new rights
under its auspices was also revoked. Therefore, provisions of State
laws that authorize the ``establishing'' of highways without the
requirements that there be actual construction of a highway over
unreserved public lands, or provisions that authorize expansion of the
scope of a right-of-way vested as of the repeal of the statute (or the
reservation of the land, whichever was earlier) conflict with Federal
law and may not be utilized.
When the Department makes a determination concerning the
acquisition or scope of a right-of-way under these regulations, it will
refer to State law as appropriate. The pertinent State law is that
which was in effect at the time of the repeal of R.S. 2477 or at the
time of the reservation of the land, whichever came first. All rights
that could have been acquired must have been acquired prior to that
date. Subsequent revisions of State law cannot expand these rights.
While this proposed rule was in preparation, a panel of the Ninth
Circuit Court of Appeals issued a decision in the case of Schultz v.
Department of the Army, 92-35197, 92-35580, 1993 U.S. App. Lexis 31037,
(9th Cir., Nov. 30, 1993). The panel decision took a somewhat more
lenient view of the criteria for establishing a valid R.S. 2477 right-
of-way than does this proposed rule. The Federal Government believes
the panel decision is not consistent with congressional intent or
practice under the statute, and the United States is seeking a
rehearing of the panel's decision before the full Ninth Circuit Court
of Appeals. The Department will, of course, take any final decision in
the case into account in moving forward with a final rule.
The Department specifically requests comments on the foregoing
interpretation of the relationship between State and Federal law as
applied to R.S. 2477.
Structure and Objective of the Proposed Rule
This proposed regulation is the first of two proposed parts. This
part outlines a process for determining which rights-of-way were
validly acquired. The second part, published separately today as an
Advance Notice of Proposed Rulemaking, will outline options the
Department is considering for determining how validly acquired rights-
of-way will be managed on Department of the Interior lands.
This proposed rule aims to: define key terms of the statute,
provide a process for assertion of claims for rights-of-ways, establish
an administrative procedure for the orderly and timely processing of
claims, establish a process for input from the public prior to the
administrative determination of a claim, and provide an appeal process
for any adversely affected party. The proposed regulations that will
implement these objectives are proposed jointly by the Bureau of Land
Management, the National Park Service, and the U.S. Fish and Wildlife
Service in this rulemaking action and will be codified at 43 CFR part
39.
As indicated in an Advance Notice of Proposed Rulemaking, published
separately today, the Department is also considering whether and how to
manage rights-of-way determined to be validly acquired under these
provisions. The Bureau of Land Management, the National Park Service,
and the U.S. Fish and Wildlife Service are each considering the need
for regulations to govern the management of R.S. 2477 rights-of-way
found to be validly acquired, consistent with the legal requirements
that govern the adjacent and underlying Federal lands. Separate
management regulations for each agency may be necessary because each
has different statutory authority and management standards.
Applicability of the Regulations
These regulations would apply to all lands managed by the Bureau of
Land Management, the National Park Service, and the U.S. Fish and
Wildlife Service. Federal lands under the administrative jurisdiction
of other bureaus in the Department of the Interior or other Federal
agencies would not be affected by these regulations.
These regulations are intended to create a process by which R.S.
2477 right-of-way claims can be systematically filed and reviewed to
determine whether the elements of the R.S. 2477 statute were met. In
order for the Department to recognize that a right-of-way exists
pursuant to R.S. 2477, a highway had to have been constructed when the
public land it traverses was not reserved, or prior to the repeal of
R.S. 2477, whichever was earlier.
The process provided in the proposed rule is not an application
process for new rights-of-way, and the Department cannot grant new
rights through these provisions. Rather, it is a process for formal
recognition by the Department of rights-of-way that were validly
acquired pursuant to R.S. 2477 prior to its repeal and the enactment of
FLPMA. The Department's recognition that a right-of-way was validly
acquired will improve manageability and convenience for the holder of
the right-of-way and the Federal land manager.
The proposed rule would establish specific filing requirements and
a specific process to facilitate efficient processing of claims. The
implementing Federal officials will work with claimants to comply with
these requirements. Failure to follow the process as outlined will
delay processing and may result in an administrative denial of the
claim. An administrative denial of a claim can be appealed to the
Director of the appropriate agency, and if the desired relief is not
received, to an appropriate Federal court.
R.S. 2477 rights-of-way that cross private or Indian or Alaska
Native lands are not governed or affected by these regulations. The
Department does not intend to make administrative determinations of
claims for rights-of-way that cross lands that are now in State,
private, Indian, or Alaska Native ownership or under the jurisdiction
of another Federal agency.
Section by Section Analysis
Section 39.1 Purpose
This section would state the purposes of the rule.
Section 39.2 Authority
This section would provide citations to the general authorities of
the Secretary of the Interior, and to the specific authorities of the
National Park Service, Bureau of Land Management, and U.S. Fish and
Wildlife Service to manage the Federal lands.
Section 39.3 Definitions
This section would define the statutory terms of R.S. 2477 and
other key terms in these regulations.
Paragraph (a) Administrative Determination: The decision made by
the authorized officer after consideration of the evidence would be
called the administrative determination. It will include a finding of
whether the right-of-way was validly acquired, and if so, describe its
scope. If a claimant has received a judicial determination that a
right-of-way was validly acquired, the administrative determination
will describe any aspects of the right-of-way not decided by the court,
including, if applicable, its scope.
Paragraph (b) Authorized Officer: Claimants would file their claims
with an authorized officer. The authorized officer is the State
Director of the Bureau of Land Management, or the Regional Director of
the Fish and Wildlife Service, or the Regional Director of the National
Park Service, who has jurisdiction over the Federal land over which a
claim pursuant to R.S. 2477 lies. The rule proposes that State or
Regional Directors be authorized to delegate this responsibility.
Paragraph (c) Claim: This term would be defined as the filing of
documentation that asserts the existence and scope of a right-of-way
pursuant to R.S. 2477 across lands managed by the Department of the
Interior. Claims must contain information sufficient to allow the
authorized officer to evaluate the validity of the claim and/or to
describe its scope.
Paragraph (d) Claimant: The term claimant would be defined as any
person or entity asserting the existence of and a property interest in
a right-of-way pursuant to R.S. 2477 across lands managed by the
Department of the Interior under these regulations or in any court
action. The Department presumes that all claimants will be State or
local government agencies with authority for public highway management.
However, there may be rare cases in which a private citizen constructed
and operates a highway (that meets all other requirements) in such a
manner as to have validly acquired a right-of-way pursuant to R.S.
2477. The Department will consider such claims, unless they are
precluded by State law, but will require that these same standards be
met. The Department specifically requests comments on whether and how,
in any case of a private claim, State or local agencies with
jurisdiction over highways in the area should be notified, consulted,
and involved in the determination of validity.
Paragraph (e) Construction: In interpreting R.S. 2477, ordinary
rules of statutory construction dictate that every word in the statute
be given effect. See Sutherland, Statutory Construction, Fourth
Edition, Section 46.01, (1984). Construction is an important term: it
is the act required to be performed in order to complete the right-of-
way grant. R.S. 2477 granted a right-of-way upon the construction of a
highway, not the dedication or planning or designing of a highway.
Prior to its repeal, new construction for highway purposes could
complete acceptance of new or additional rights-of-way, so long as the
land remained unreserved at the time of construction.
The definition in the proposed regulations would recognize that
standards of highway construction technology changed between the time
when R.S. 2477 was passed and when it was repealed. The definition also
recognizes that Congress intended in R.S. 2477 to authorize a specific
activity--the construction of highways--and did not intend, and would
not have needed, to authorize less durable forms of access. The
proposed rule, therefore, would require that intentional physical acts
be performed with the achieved purpose of preparing a durable,
observable, physical modification of land and that this modification be
suitable for highway traffic.
Where a path or trail was created initially by the mere passage of
vehicles, the construction requirement is met only if the path or trail
has been subsequently maintained by acts that meet the requirements of
construction, before the latest available date (defined below).
Construction of a highway cannot be accomplished solely by any of the
following activities: continual passage over a surface that has not
previously been intentionally constructed, even if the continual
passage eventually creates a defined route; clearing of vegetation; or
removal of large rocks. The Department specifically requests comments
on this definition, including the requirements to show intentional
acts, durable and observable physical modifications of land, and a link
to highway traffic.
Paragraph (f) Highway: R.S. 2477 authorized the construction of
highways, not railroads or canals or other types of access. When R.S.
2477 was enacted, a highway was understood to mean an open public road
that served public travel or commerce needs or connected places between
which people or goods traveled. Congress presumably authorized the
construction of highways to make it possible for vehicles, including
wagons, to travel them. There is no legislative history to suggest that
Congress meant to authorize the construction of highways for private
uses, for foot traffic, or for a road that did not provide needed
access from one public destination to another.
The Department specifically requests comments on this definition,
including the requirements to show current use, vehicular use, public
use, and the connection between places made possible by the
construction of the highway. The Department also requests comments on
whether any of these terms needs further definition. The Department is
considering whether to require a more specific showing that a right-of-
way that once existed, but is no longer used, has not been abandoned
and requests comments on this issue.
This definition of highway would not rule out the later adoption of
a private road by a public entity, prior to repeal of the statute (or
reservation of the land if this was earlier) in order to establish the
right-of-way under the authority of R.S. 2477. The Department does not
intend to require that all rights-of-way run from city to city; as long
as the route connects identifiable places to which the public travels,
it may meet this requirement. The Department therefore interprets the
term highway to mean a thoroughfare that is currently and was, prior to
the latest available date, used by the public without discrimination
against any individual or group for passage of vehicles carrying people
or goods from place to place. State law that was in effect on the
latest available date may place additional limits on what kind of
thoroughfare can be considered a highway in that State--claimants are
also required to comply with these limits.
Paragraph (g) Holder: The term holder means someone whose claim of
a right-of-way pursuant to R.S. 2477 has been determined to be valid
under these regulations or by a Federal court in an appropriate case
(see definition of Judicial Determination).
Paragraph (h) Improvement: The proposal divides all maintenance or
construction activities that might take place on a claimed right-of-way
into two categories: improvements and routine maintenance (which is
defined separately). Improvements are considered any of these
activities that expand the scope of the right-of-way; routine
maintenance activities are any activities within that scope.
Improvements may include activities such as paving a dirt road,
widening a right-of-way, clearing vegetation from outside the scope of
the right-of-way, removing materials from adjacent Federal lands,
realignment, or new occupation of Federal land for any purpose. The
Department does not interpret the R.S. 2477 savings provision to
authorize improvements that expand the scope of the right-of-way as it
existed on the latest available date. The Department requests comments
on these issues, including comments on how specific the regulations
should be on these points.
Paragraph (i) Judicial Determination: The term judicial
determination means a decision by a United States Federal court holding
that someone validly acquired a right-of-way pursuant to R.S. 2477. The
Department of the Interior will not give binding effect to State court
determinations on the validity of rights-of-way pursuant to R.S. 2477
unless the United States was a party to those cases (which was rarely
if ever the case). However, if a claimant has received a State court
determination that a right-of-way was validly acquired pursuant to R.S.
2477, it is evidence that the authorized officer will consider in
making his or her administrative determination.
Paragraph (j) Latest Available Date: This is the latest date on
which a party could have acquired a right-of-way pursuant to R.S. 2477.
The latest available date is the earliest of (1) the date of repeal of
R.S. 2477 (October 21, 1976) in the case of public lands that were
unreserved as of that date, or (2) the date the public lands were
reserved for public uses (such as the date of reservation of the lands
to create a National Park), because at that point the land was no
longer ``not reserved for public use.''
Paragraph (k) Maintenance: Maintenance is defined in this section
as recurring or periodic actions that repair and prevent damage to the
right-of-way surface and keep the right-of-way surface suitable for
travel by the intended vehicles. This term is included in order to
provide descriptions of the usual, periodic kinds of activities that
are conducted on public highways and must be read along with the terms
``improvements'' and ``routine maintenance,'' both of which are defined
separately. Maintenance activities may include: grading, planking,
graveling, asphalting, surfacing, cuts and fills, preparation of
drainage ditches, curbing, or installation of culverts. The Department
requests comments on these issues.
Paragraph (l) Public Lands Not Reserved for Public Uses: This term
is used in R.S. 2477 and means lands owned by the United States that
were available and open to the public under various public land laws
that provided for disposition to the public, but that had not been set
aside, withdrawn, reserved, dedicated, settled, preempted, entered,
appropriated, disposed of, located, or otherwise reserved. These are
now commonly referred to as ``unreserved public lands.'' Lands can be
reserved by an Act of Congress, Presidential Proclamation or Executive
Order, Secretarial Order, or other classification action.
These proposed regulations would not apply to reserved Federal
lands, acquired Federal lands, privately held lands, or lands held in
fee by Indian tribes or by individual Indians or Alaska Natives.
Paragraph (m) Public Land Records: This term refers to the records
of the Bureau of Land Management and the Bureau's predecessor agency,
the General Land Office. These records are relevant even where the
claimed R.S. 2477 right-of-way crosses lands managed by the National
Park Service or the U.S. Fish and Wildlife Service. This is because the
right-of-way must have been acquired prior to the land being withdrawn
or reserved as a National Park or Wildlife Refuge, that is, when the
lands were managed by the Bureau of Land Management or its predecessor
agency.
Paragraph (n) Routine maintenance: This term would be defined as
maintenance activities that are within the scope of the right-of-way as
it existed on the latest available date. Activity that expands the
scope is considered an ``improvement.'' Routine maintenance may include
activities such as grading, or repairing potholes or existing culverts,
and other minor, necessary activities that do not alter the character
of the right-of-way or affect Federal lands. Routine maintenance
probably would not include activities such as paving a dirt road,
widening the right-of-way, clearing vegetation outside the scope of the
right-of-way, removing material from adjacent Federal lands,
realignment, or new occupation of Federal land for any purposes. The
Department requests comments on these issues.
Paragraph (o) Scope: Until the repeal of R.S. 2477 (or the
reservation of the land, if earlier), claimants could acquire new
rights-of-way or expand the scope of already acquired rights-of-way by
constructing additional highways or by widening, realigning, or
otherwise expanding an existing highway. After the latest available
date, however, no new rights under R.S. 2477 could be acquired. New
rights-of-way and new uses of Federal land require authorization under
FLPMA or other statutory authorities. The scope of the right-of-way
that the holder validly acquired is that which was actually in use for
public highway purposes at the latest available date. Where State law,
as of the latest available date, further limits the scope of a right-
of-way, these limits also apply. The Department specifically requests
comments on its interpretation of scope, including whether or when it
is necessary or useful for the Department to provide, as part of its
Administrative Determination, a written description of scope and, if
so, what parameters should be used to describe it.
The authorized officer will generally look to the current condition
of the right-of-way as evidence of the validly acquired scope. Any
future expansions of scope or creation of new rights-of-way would need
to be authorized under other available statutory provisions, such as
Title V of FLPMA. Some expansion of scope may have occurred after the
repeal of R.S. 2477 in 1976 (or reservation of the land if earlier) on
some rights-of-way. Generally, the Department does not intend to treat
these activities as trespass, unless neither the courts nor the
Department approved the expansion and significant public values are
threatened by the expansion. In some cases, Department officials and
Federal courts authorized expansion of the scope of a particular right-
of-way and these authorizations will be upheld.
Paragraph (p) Secretary: This term means the Secretary of the
Interior.
Section 39.4 Recognition of a Validly Acquired Grant
This section would provide that the Department will recognize
Federal court decisions, and decisions of the authorized officer under
these regulations, that a right-of-way was validly acquired. All
parties that already have obtained judicial determinations that they
hold a right-of-way pursuant to R.S. 2477 must file a copy of the
judicial determination with the authorized officer. This will allow the
Department to maintain current, accurate records and to manage the
right-of-way appropriately. Any issues that are not resolved in the
judicial determination, including the scope of a right-of-way, will be
determined by the authorized officer under these regulations.
This section further provides that the Department will recognize
the scope of a right-of-way when it is described by either a Federal
court or the authorized officer. Where a claimant has received a
judicial determination of validity, but the court does not provide a
specific description of its scope, the holder must file a claim to gain
recognition of the scope.
Section 39.5 Interests Granted and Retained by the United States
This section would enumerate the limited interests that were
granted and acquired under R.S. 2477. The Department is considering
whether these regulations should authorize the U.S. to receive a
conveyance of an R.S. 2477 right-of-way from a claimant or holder,
consistent with applicable law and subject to appropriate terms and
conditions. Such conveyances may be mutually beneficial in cases where
a State or county does not want to retain the legal and financial
liability for an R.S. 2477 right-of-way, but the right-of-way provides
important public access to or across Federal lands. The Department
specifically requests comments on this issue.
Section 39.6 Filing Process for Administrative Determination
Paragraph (a) Requirement to File a Claim. Claimants would be
required to file a request for an administrative determination of the
validity and/or scope of each R.S. 2477 claim within 2 years after the
effective date of the final rule. By requiring claimants to file their
claims by this date, the agency will then have a record of all
potential rights-of-way, and will be able to consider this information
in land use planning and other management decisions. The Department
specifically requests comments on the length of the filing period.
The proposed regulations require claimants to file a claim for a
right-of-way pursuant to R.S. 2477 in all cases, even if they
previously filed a map with the Bureau of Land Management showing the
location of highways constructed under the authority of R.S. 2477, as
requested by 43 CFR 2802.5(b). That regulation specifically states that
the submission of the maps is not conclusive evidence of the existence
of the rights-of-way.
Paragraph (b) Determination of the Appropriate Office. If the claim
crosses lands managed by only one agency, the claimant should file in
the appropriate Regional or State office of that agency. However, where
right-of-way claims cross lands managed by more than one agency, the
proposed rule would direct the claimant to the office where the claim
should be filed. For the convenience of claimants and the Department,
claims for a single right-of-way should not be segmented by filing a
claim for a portion of a right-of-way in a particular office, for any
reason.
Paragraph (c) Information Required in the Claim. A claim would be
required to include sufficient information to demonstrate to the
authorized officer that each element of R.S. 2477 and each requirement
of these regulations has been met, and to determine the scope of a
claimed or judicially determined right-of-way. By requiring that
standard information be provided for all claims and allowing the
authorized officer to determine the sufficiency of each point, the
Department believes it is establishing a process that will be fair and
consistent as well as flexible enough to allow for differences in
record-keeping.
Claimants would be required to provide general historic and
descriptive information and any additional documentation necessary to
demonstrate that a claimed right-of-way was validly acquired, including
proof of construction of a highway across public lands not reserved for
public uses, as those terms are herein defined. In order to facilitate
speedy processing, provide manageable standards for authorized
officers, and to make documenting a claim easier for claimants, this
section sets forth some specific types of proof, including numerous
kinds of public records, that are most likely to make these
demonstrations. Obvious claims will be easily documented and easily
approved. Although some evidence of each point is required, the
authorized officer will weigh the evidence produced as a whole in
making the requisite determination. Less obvious claims can be
documented using numerous kinds or combinations of evidence, and can be
approved if the evidence shows that the elements of R.S. 2477 and these
regulations are met.
If the authorized officer believes that more information is needed
in order to make a fair and informed decision, the claimant may be
asked to provide additional information. If a claimant has already
received a judicial determination that an R.S. 2477 right-of-way has
been validly acquired, the claim should include a copy of that
determination, along with any other information necessary for an
administrative determination of any issues not determined by the court.
The claimant is required to provide evidence of actual construction
(see definition of Construction). The proposed regulations illustrate
the kinds of information that are likely to meet the requirement. The
claimant is also required to provide sufficient evidence that the
claimed right-of-way meets the definition of highway and was
constructed across public lands not reserved for public uses at the
time of the construction.
The Department specifically requests comments on these
requirements, whether they are sufficiently flexible, specific, and
predictable, and on the amount of discretion provided to authorized
officers.
Section 39.7 Effect of Failure to File a Claim
The rule would require claimants to file claims within 2 years
after the effective date of the final rule. The failure to file a claim
by that date would be deemed to constitute a relinquishment of any
rights purported to have been acquired under R.S. 2477. Any claims
filed after that date would not be accepted or processed. A refusal to
process a claim submitted after this date would be final agency action.
A filing deadline is necessary to enable the land managing agencies
to approach land use planning and other management issues with complete
information, and to provide certainty to public land users and those
whose title may be affected by such claims. Earlier requests for this
information not accompanied by a filing deadline did not elicit
significant responses. Anyone who fails to file a claim within this
period, but who wishes to assert the existence of a right-of-way, can
seek authorization for the use of the right-of-way under other existing
statutory authority, such as Title V of FLPMA, 43 U.S.C. 1761-1771.
The process in the proposed rule would provide claimants with a
reasonable method of obtaining an administrative determination of their
claims without undertaking the expense and time of litigation. Some
claimants may find the existing procedures under the Title V of FLPMA,
or other statutory authorities, to be a more familiar and speedy
process for resolving their right-of-way claims.
This section also provides that these regulations, from their
effective date, shall serve as notice for purposes of the Quiet Title
Act that the United States asserts an adverse interest in all purported
R.S. 2477 rights-of-way that cross Federal lands. This will start the
clock running on the applicable twelve year statute of limitations
period for filing a quiet title action in Federal court. This provision
is not intended to provide any additional time to a claimant if any
prior notice has already been given of an adverse Federal claim, or
otherwise affect any prior notice that might have been given of an
adverse Federal claim.
The net effect of the proposal is that claimants will have two
years from the date of final regulations to file claims with the
Department for administrative determinations of the claims and twelve
years from the date of final regulations to file suit in Federal court
to establish their rights. After these two periods lapse, all unfiled
claims would be extinguished.
The Department specifically requests comments on these provisions,
including on its legal authority to require claimants to follow this
administrative process.
Section 39.8 Processing of the R.S. 2477 Claim
Paragraph (a) Additional Information. This section would set out
the procedure that the authorized officer will follow in processing the
claim. The authorized officer will review the information submitted
with the claim to determine its sufficiency. Where the authorized
officer determines that additional information is necessary, the
claimant will be notified in writing and afforded an opportunity to
furnish the information. The Department is considering whether to
require that such additional information be supplied within a specific
amount of time, such as 60 days, and specifically requests comments on
this issue.
Failure of a claimant to make reasonable and timely efforts to
respond to a request for additional information would be deemed to
constitute a relinquishment of any rights purported to have been
acquired under R.S. 2477. The Department's decision not to process an
incomplete claim will constitute final agency action.
Paragraph (b) Consultation with other Federal agencies. If the
claimed right-of-way also crosses lands that are under the jurisdiction
of other Federal agencies (including agencies that are not within the
Interior Department, such as the U.S. Forest Service or the Department
of Defense), the authorized officer will consult with the other
agencies. In addition, if the claimed right-of-way abuts lands managed
by other agencies, the authorized officer will consult with these
agencies. This consultation will allow the other agencies to offer
input and information to the authorized officer.
Paragraph (c) Consultation with the Bureau of Indian Affairs. This
proposed provision details the circumstances in which the authorized
officer will consult with the appropriate office of the Bureau of
Indian Affairs (BIA). The purpose of this consultation is to provide
BIA with the opportunity to contact persons or Indian tribes affected
by these claims. The Department specifically requests comments on
whether this process provides sufficient notice to Indians and Alaska
Natives about right-of-way claims that may affect their lands.
Paragraph (d) Public Notification of Filing of the Claim. The
authorized officer will notify the public that a claim has been filed
by publishing a notice in a newspaper once a week for three consecutive
weeks. The notice will be published in a local newspaper that is
distributed in the area of the claim. The paragraph specifies the
information that will be included in the notice. The authorized officer
will receive public comments for at least 30 days beginning after the
last notice has appeared in the paper. The Department specifically
requests comments on the sufficiency of this procedure and the utility
and cost-effectiveness of other public notification procedures.
Paragraph (e) Disqualification of the Claim. There are some
situations in which the authorized officer will not process the claim.
If a Federal court or a Department of the Interior agency has
previously made a determination that a right-of-way is not a valid
right-of-way pursuant to R.S. 2477, then the authorized officer will
not substitute his or her decision for the previous judgment of the
court or decision by the agency. A claimant may not make multiple
claims or shop for a different result in different offices. The
Department specifically requests comments on whether other types of
Congressional or administrative determinations, such as the designation
of Wilderness Areas or Wilderness Study Areas, should automatically
disqualify a claim from consideration in the Department's
administrative process proposed by these regulations.
Paragraph (f) Review of the Claim. This paragraph directs the
authorized officer to review the claim and determine whether the
evidence is sufficient to establish that the claimed right-of-way was
validly acquired. The authorized officer has some discretion to account
for differences in record-keeping processes and to examine the overall
claim for sufficiency. The Department specifically requests comments on
the standards by which authorized officers will evaluate claims.
Paragraph (g) Administrative Determination: After review of the
information submitted by the claimant, review of the Bureau of Land
Management official public land records for the area in question,
consultation with affected Federal agencies, and consideration of
public comment, the authorized officer will prepare an administrative
determination.
The administrative determination will not be final until the
authorized officer obtains the concurrence of the authorized officers
of the other Department of the Interior land managing agencies (the
Bureau of Land Management, the National Park Service, and the U.S. Fish
and Wildlife Service) that have jurisdiction over lands crossed by the
claim. For example, if a claim of a right-of-way crosses both Park
Service and Bureau of Land Management lands, the authorized officer is
the Regional Director of the National Park Service or his or her
designee. Before the Regional Director makes a final administrative
determination of the claim that crosses Park Service and Bureau of Land
Management lands, he or she will consult with and obtain the
concurrence of the Bureau of Land Management authorized officer.
Concurrence of other Federal agencies is not required. Having such
``one stop shopping'' should make the process simpler and faster for
the claimants, and ensure that all appropriate information for a
particular claim is available for the authorized officer's
consideration.
The authorized officer will address issues raised during the public
review and comment period, and determine whether to recognize an R.S.
2477 right-of-way and, if so, its scope. The Department requests
comment on whether or when it is necessary or useful to provide, as
part of an Administrative Determination, a written description of scope
and, if so, what parameters should be used to describe it.
Paragraph (h) Public Notification of Administrative Determination.
The authorized officer will publish a notice in a newspaper of general
distribution in the vicinity of the claim and in the Federal Register.
The notice will alert the public to the results of and reasons for the
determination. A copy of the administrative determination will be sent
to the claimant. The Department specifically requests comments on the
sufficiency and utility of these procedures and the utility and cost-
effectiveness of other public notification procedures.
Section 39.9 Appeals Procedure From Administrative Determinations
The proposed regulations allow any interested party, including the
claimant, State or local governments, and other public land users to
appeal the administrative determination to the Director of the Bureau
or Service. This will allow for efficient processing of appeals and
uniformity in the decisions. Appeals are required to be in writing and
must be submitted to the Director within 30 days of the decision's
publication. The decision of the authorized officer will take effect 30
days after its publication in the Federal Register, unless the decision
is properly appealed to the Director during that time.
The Director of the appropriate Bureau or Service will consider the
official files of the authorized officer and any evidence submitted to
the authorized officer by any interested party. The Director may ask
the parties or the authorized officer for additional information and
may provide for a hearing. If the claim involves land managed by more
than one Department of the Interior land managing agency, the Director
will consult with and obtain the concurrence of the Director of the
other agency or agencies before making a final decision on the appeal.
The Department specifically requests comments on whether a
different type of appeals process should be considered; for example,
whether a hearing should be required or allowed if requested, whether
appeals should be sent to a hearing board or other bureau official
rather than a bureau director, whether decisions should be effective
immediately or await action on any administrative appeal, and whether
appeals should be limited to parties that participate in the
determination of a claim.
Section 39.10 Interim Activity
This section would provide guidance on the activities that
claimants can engage in before a final administrative determination is
issued or while any administrative appeal is pending. The Department
will allow interim activities on all rights-of-way that are currently
maintained by claimants, in accordance with these regulations, until
final agency determinations are made. The Department specifically
requests comments on whether these procedures will provide a workable
framework for necessary activities of claimants while adequately
protecting public resources.
The principal authors of this proposed rule are Ted D. Stephenson,
Chief, Branch of Lands and Minerals Operations, Utah State Office, Ted
G. Bingham, Deputy State Director for Operations, Arizona State Office,
Sue A. Wolf, Chief, Branch of Lands, Alaska State Office, Bill Wiegand,
Idaho State Office, and Ron Montagna, Realty Specialist, Division of
Lands, Washington Office, assisted by the staff of the Division of
Legislation and Regulatory Management, all of the BLM; Tony Sisto,
Ranger, Ranger Activities Division of the National Park Service; Duncan
Brown, Counselor to the Division of Refuges, U.S. Fish and Wildlife
Service; and Karen Mouritsen, Barry Roth, Renee Stone, and Ruth Ann
Storey from the Office of the Solicitor.
It is hereby determined that this proposed rule does not constitute
a major Federal action significantly affecting the quality of the human
environment, and that no detailed statement pursuant to Section
102(2)(C) of the National Environmental Policy Act of 1969 (NEPA) (42
U.S.C. 4332(2)(C)) is required. The Bureau of Land Management has
determined that this proposed rule would not create environmental
impacts. No critical element of the human environment would be affected
because the proposed rule would merely establish a process for
determining whether claimed rights-of-way across Federal lands were
validly acquired pursuant to R.S. 2477. No new rights-of-way would be
authorized under the proposed rule. The Department would use these
regulations to determine, in individual situations, whether valid
existing rights-of-way exist under a law repealed eighteen years ago.
If such rights are determined to exist under these regulations, they
will be subject to regulation under other laws, and NEPA is applicable
to these processes.
This rule has been reviewed under Executive Order 12866.
The Department has determined under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.) that the proposed rule will not have a
significant economic impact on a substantial number of small entities.
The rule principally affects governmental entities that own and operate
public highway rights-of-way that cross Federal land.
The Department certifies that this proposed rule does not represent
a governmental action capable of interference with constitutionally
protected property rights. There would be no taking of private property
by this rule. The entities principally affected by the rule are public
in nature and the only proceedings authorized by the proposal are
assessments of whether valid rights exist. Therefore, as required by
Executive Order 12630, the Department of the Interior has determined
that the proposed rule would not cause a taking of private property.
The Department has certified to the Office of Management and Budget
that this proposed rule meets the applicable standards provided in
section 1(a) and 2(b)(2) of Executive Order 12788.
The information collection requirements contained in this rule have
been submitted to the Office of Management and Budget for approval as
required by 44 U.S.C. 3501 et seq. The collection of this information
will not be required until it has been approved by the Office of
Management and Budget. The information would be collected to permit the
authorized officer to determine the validity and scope of rights-of-way
claimed to have been acquired under R.S. 2477. The information would be
used to make this determination.
Public reporting burden for this information is estimated to
average ________ hours per response, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding this burden estimate
or any other aspect of this collection of information, including
suggestions for reducing the burden, to the Information Collection
Clearance Officer (873), Bureau of Land Management, 1849 C Street,
N.W., Washington, DC 20240, or the Service Information Collection
Officer, U.S. Fish and Wildlife Service, MS-224 ARLSQ, 1849 C Street,
N.W., Washington, D.C. 20240, or Chief, Management Analysis and Control
Branch, Management Services Division, National Park Service, P.O. Box
37127, Washington, D.C. 20013-7127, and the Office of Management and
Budget, Paperwork Reduction Project, 1004-xxxx, Washington, DC 20503.
List of Subjects in 43 CFR Part 39
Highways and roads, Public lands--rights-of-way, Reporting and
record-keeping requirements.
For the reasons set forth in the preamble, and under the
authorities stated below, subtitle A of title 43 is proposed to be
amended by adding a new part 39 to read as follows:
PART 39--REVISED STATUTE 2477 RIGHTS-OF-WAY
Sec.
39.1 Purpose.
39.2 Applicability and authority.
39.3 Definitions.
39.4 Recognition of a validly acquired right-of-way.
39.5 Interests granted and retained by the United States.
39.6 Filing process for administrative determination.
39.7 Effect of failure to file a claim.
39.8 Processing of claims.
39.9 Appeals procedure from administrative determinations.
39.10 Interim activity.
39.11 Information collection. [Reserved]
Authority: 43 U.S.C. 1201, 1733 and 1740.
Sec. 39.1 Purpose.
The purposes of the regulations in this part are to:
(a) Establish procedures for the orderly and timely processing of
claims for rights-of-way pursuant to R.S. 2477 over lands managed by
the Bureau of Land Management, National Park Service, and U.S. Fish and
Wildlife Service;
(b) Define key terms;
(c) Establish public notice and appeal processes of claims for
rights-of-way pursuant to R.S. 2477; and
(d) Provide for the use of rights-of-way validly acquired pursuant
to R.S. 2477, consistent with the management of adjacent and underlying
Federal lands.
Sec. 39.2 Applicability and authority.
The regulations in this part apply to right-of-ways claimed
pursuant to R.S. 2477 on Federal lands administered by the Bureau of
Land Management, National Park Service, and U.S. Fish and Wildlife
Service, all land managing agencies under the U.S. Department of the
Interior. R.S. 2477, Section 8 of the Act of July 26, 1866, 43 U.S.C.
932, granted a right-of-way for the construction of highways on public
lands not reserved for public uses. R.S. 2477 was repealed by Section
706(a) of the Federal Land Policy and Management Act of 1976 (FLPMA),
43 U.S.C. 1701-1784. Existing rights-of-way were not terminated. 43
U.S.C. 1769(a). FLPMA created a new process for the issuance of rights-
of-way to provide access to and across Bureau of Land Management and
U.S. Forest Service lands. 43 U.S.C. 1761-1771.
(a) Department of the Interior. The Secretary of the Interior has
broad authority to promulgate regulations for the management of
Department of the Interior lands pursuant to 43 U.S.C. 1201 and 1457.
(b) Bureau of Land Management. Sections 302(b) and 310 of the
Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C.
1732(b) and 1740, authorize the Bureau of Land Management to promulgate
regulations to prevent unnecessary or undue degradation of lands
managed by the Bureau of Land Management and to implement the purposes
of FLPMA and other public land laws. Section 603(c), 43 U.S.C. 1782(c),
requires the Secretary of the Interior to manage wilderness study
areas, by regulation or otherwise, to prevent unnecessary or undue
degradation and to prevent impairment of wilderness characteristics.
(c) U.S. Fish and Wildlife Service. 16 U.S.C. 668dd authorizes the
Secretary, acting through the Director of the U.S. Fish and Wildlife
Service, to issue regulations relating to public use of any area within
the National Wildlife Refuge System. In addition, 16 U.S.C. 460k-3
authorizes the Secretary to issue regulations relating to public use of
national wildlife refuges, game ranges, national fish hatcheries, and
other conservation areas administered by the Department for fish and
wildlife purposes. With respect to any unit of the National Refuge
System located in Alaska, the Alaska National Interest Lands
Conservation Act (ANILCA) requires the Secretary to prescribe
regulations to ensure that activities carried out under any use or
easement granted ``under any authority'' are compatible with the
purposes for which the refuge was established. ANILCA, Section 304(b),
Pub. L. 96-487, 94 Stat. 2371, 2395 (1980).
(d) National Park Service. The National Park Service Organic Act,
16 U.S.C. 1-4, provides that the purpose of the National Park Service
is to conserve the scenery and the natural and historic objects and the
wildlife therein and to provide for the enjoyment of the same in such
manner and by such means as will leave them unimpaired for the
enjoyment of future generations. The Secretary has specific authority
to make rules and regulations in furtherance of these purposes. 16
U.S.C. 3.
Sec. 39.3 Definitions.
The following definitions apply to this part:
(a) Administrative determination means the decision issued by an
authorized officer under this part that determines the validity and/or
scope of a claim of a right-of-way pursuant to R.S. 2477.
(b) Authorized officer means the State Director of the Bureau of
Land Management, or the Regional Director of the U.S. Fish and Wildlife
Service, or the Regional Director of the National Park Service, or
their respective designee, with jurisdiction over the Federal land over
which a claim pursuant to R.S. 2477 lies.
(c) Claim means the filing of appropriate documentation under this
part asserting the existence of and a property interest in a right-of-
way pursuant to R.S. 2477 across lands managed by the Department of the
Interior. Claim also means the filing of appropriate documentation
under this part showing that a judicial determination has been made of
the existence of a right-of-way pursuant to R.S. 2477 across lands
managed by the Department of the Interior and asserting any rights not
expressly recognized in the judicial determination.
(d) Claimant means any person or governmental entity that asserts
the existence of and a property interest in a right-of-way pursuant to
R.S. 2477 across lands managed by the Department of the Interior under
this part or in any Federal court action. Where State law, in effect on
the latest available date, further limits the class of persons who may
own or operate highways, these limits also apply.
(e) Construction means an intentional physical act or series of
intentional physical acts that were intended to, and that accomplished,
preparation of a durable, observable, physical modification of land for
use by highway traffic. Where State law, in effect on the latest
available date, further limits the definition of construction, these
limits also apply.
(f) Highway means a thoroughfare that is currently and was prior to
the latest available date used by the public, without discrimination
against any individual or group, for the passage of vehicles carrying
people or goods from place to place. Where State law, in effect on the
latest available date, further limits the definition of highway, these
limits also apply.
(g) Holder means a claimant who has received an administrative or
judicial determination that its claim to a right-of-way pursuant to
R.S. 2477 is valid.
(h) Improvement means any maintenance or construction activity that
expands the scope of the right-of-way.
(i) Judicial determination means a decision by a United States
District or Territorial court, or higher United States Federal court,
that holds that a claimant holds a right-of-way pursuant to R.S. 2477.
(j) Latest available date means the latest date on which a right-
of-way pursuant to R.S. 2477 could have been acquired, which shall be
prior to:
(1) October 21, 1976, in the case of lands that were unreserved
public lands as of that date; or
(2) The date the public lands were reserved for public uses (such
as the date of withdrawal from entry or designation of public use by
statute, Presidential Proclamation or Executive Order, Secretarial
Order, or administrative decision) in the case of public lands reserved
for public uses before October 21, 1976.
(k) Maintenance means recurring or periodic actions that repair or
prevent damage to an existing right-of-way surface and keep an existing
right-of-way surface suitable for travel by the intended vehicles.
(l) Public Lands Not Reserved for Public Uses or Unreserved Public
Lands means lands owned by the United States that were available and
open to the public under various public land laws that provided for
disposition to the public, but that had not yet been set aside,
dedicated, withdrawn, reserved, settled, preempted, entered,
appropriated, disposed of, located, or otherwise reserved.
(1) The terms ``public lands not reserved for public uses'' and
``unreserved public lands'' do not include:
(i) Lands that were set aside, dedicated for specific purposes,
withdrawn, or otherwise reserved from disposition under the public land
laws by an Act of Congress, Presidential Proclamation or Executive
Order, Secretarial Order, or classification actions authorized by
statute that specified that the land would be used for a specific
purpose or that prevented certain uses;
(ii) Lands that were settled, preempted, entered, appropriated,
disposed of, located, or otherwise reserved to private parties or
States under the public land laws or mining laws;
(iii) Lands that were owned by the United States, disposed of to a
private party, and later reacquired by the United States (unless
expressly re-opened prior to the latest available date);
(iv) Lands that were acquired by the United States from a party
other than a foreign sovereign (unless expressly re-opened prior to the
latest available date); or
(v) Other reserved lands.
(2) Lands are removed from the status of ``public lands not
reserved for public uses'' on the date of the withdrawal or other
reservation.
(3) If a settlement, claim, or entry does not proceed to patent, is
declared invalid, is abandoned or relinquished, or the United States
revokes the withdrawal or other reservation, the land may return to the
status of ``public lands not reserved for public uses,'' on the date on
which the public land records so reflect that status.
(m) Public land records means the records of the Bureau of Land
Management or its predecessor agency, the General Land Office.
(n) Routine maintenance means maintenance activities that are
within the scope of the right-of-way.
(o) Scope means the width, surface treatment, and location actually
in use for public highway purposes at the latest available date, unless
otherwise determined by a United States Federal court. Where State law,
in effect on the latest available date, further limits the scope of a
right-of-way, these limits also apply.
(p) Secretary means the Secretary of the Interior.
Sec. 39.4 Recognition of a validly acquired right-of-way.
(a) The Department of the Interior will recognize that a right-of-
way was validly acquired pursuant to R.S. 2477 only if that
determination is made by one of the following:
(1) A United States District or Territorial court, or higher United
States Federal court; or
(2) The authorized officer in accordance with this part.
(b) The Department of the Interior will recognize the scope of a
right-of-way pursuant to R.S. 2477 only if it is described by one of
the following:
(1) A United States District or Territorial court, or higher United
States Federal court; or
(2) The authorized officer in accordance with this part.
Sec. 39.5 Interests granted and retained by the United States.
(a) Interests validly acquired pursuant to R.S. 2477. Upon valid
acquisition, a claimant received a right-of-way for public access for
highway purposes. The right to acquire new rights under R.S. 2477 was
terminated as of the latest available date. A holder may perform
routine maintenance. Routine maintenance, construction, improvement,
use, and operation of the right-of-way shall be subject to regulation.
(b) Interests retained by the United States. R.S. 2477 granted a
right-of-way upon the construction of a highway across public land not
reserved for public uses. All other rights were retained by the United
States, including all rights not actually acquired prior to the latest
available date. These rights include but are not limited to continuing
rights to regulate, enter, and authorize other uses of the right-of-
way. The United States retains the authority to regulate routine
maintenance, construction, improvement, use, and operation of the
right-of-way.
Sec. 39.6 Filing process for administrative determination.
(a) Requirement to file a claim. All claimants shall file their
claims with the appropriate office in the State or Region in which the
claim lies, not later than [30 days plus 2 years after date of
publication of final rule]. All holders of judicial determinations
shall file a claim, including a copy of the judicial determination and
any other necessary information, with the appropriate office in any
State or Region in which the claim lies, not later than [30 days plus 2
years after date of publication of final rule]. Any aspects of a
judicial determination not addressed by the court, including scope,
will be determined under this part.
(b) Determination of appropriate office. The appropriate office is
determined by the following:
(1) If any part of the claim crosses lands managed by the National
Park Service, the appropriate office is the Regional Office of the
National Park Service. Contact the nearest National Park for the
address of the appropriate Regional Office.
(2) If any part of the claim crosses lands managed by the U.S. Fish
and Wildlife Service, and does not cross lands managed by the National
Park Service, the appropriate office is the Regional Office of the U.S.
Fish and Wildlife Service. See 50 CFR 29.21-2(c) for the address of the
appropriate Regional Office.
(3) For claims that cross lands managed by the Bureau of Land
Management, but not the National Park Service or the U.S. Fish and
Wildlife Service, the appropriate office will be the State Office of
the Bureau of Land Management. See 43 CFR 1821.2-1 for the address of
the appropriate State Office.
(c) Information required in claim. A claim shall contain sufficient
information to demonstrate to the authorized officer that each element
of R.S. 2477 and each requirement of this part have been met (unless
the claimant already holds a judicial determination of validity), and
any additional information necessary to determine the scope of the
right-of-way. At a minimum the claim shall contain:
(1) The name and affiliation of the claimant;
(2) The address where service may be made on the claimant,
including name(s) or agent(s) authorized to act for it, and the
statute, resolution, ordinance, or other warrant authorizing such
officer(s) or agent(s) to act on behalf of the claimant;
(3) A general description of the highway on which the claim is
based, including at least the local name, State or county number,
beginning and ending points, type of surface, width and other relevant
information, and identification of the claim on maps in sufficient
detail to allow location on the ground by a competent engineer or
surveyor.
(4) A summary of the history of the construction and use of the
right-of-way up to the present.
(5) A statement of whether any profiles, constructions, as-built or
similar detail maps or diagrams of the right-of-way are available and,
if so, where such material may be viewed or copies obtained;
(6) If the right-of-way has been the subject of a prior judicial or
administrative determination, the case or file identification number,
results of the last action taken, and the dates thereof.
(7) If applicable, a citation to relevant State law in effect on
the latest available date;
(8) Evidence of construction, which shall include evidence of each
part of the definition of construction, including:
(i) Intentional physical acts, which may be shown by evidence that
the roadbed was prepared with the use of tools, either hand tools,
power tools, or machinery; and
(ii) Preparation of a durable, observable, physical modification of
land, which may be shown by records of expenditures for, or other
records of, highway construction activities or maintenance after the
initial construction at necessary and appropriate intervals so that the
right-of-way was a relatively continuous route for travel;
(9) Evidence that the claimed right-of-way is a highway, which
shall include evidence of each part of the definition of highway,
including:
(i) Public use, which may be shown by records establishing that the
right-of-way is currently and was prior to the latest available date
officially acknowledged, funded, or maintained by a State or local
government public highway management agency;
(ii) Vehicular use, which may be shown by historic evidence or
records of use for commercial or personal purposes by vehicles
appropriate to the time and terrain; and
(iii) The thoroughfare served as a connection between public
destinations, which may be shown by describing the places that the
right-of-way connects or provides access to; and
(10) Evidence that the land over which a claim of a right-of-way
pursuant to R.S. 2477 lies was public land not reserved for public uses
at the time of construction.
Sec. 39.7 Effect of failure to file a claim.
The failure to file a claim by [30 days plus 2 years after date of
publication of final rule] shall be deemed to constitute a
relinquishment of any rights purported to have been acquired under R.S.
2477. Claims received after that date will not be processed. A decision
refusing to process a claim submitted after the above date will
constitute final agency action. These regulations, from [the effective
date of the final rule] shall serve as notice for purposes of the Quiet
Title Act, 28 U.S.C. 2409a, that the United States claims an adverse
interest in any purported rights-of-way traversing Federal lands
claimed pursuant to R.S. 2477; provided, however, that this provision
will not interfere with or affect any prior notice that might have been
given of an adverse Federal claim.
Sec. 39.8 Processing of claims.
(a) Additional information. The authorized officer will review the
claim to determine whether it is complete and provides sufficient
information to allow a review of the claim. Where the authorized
officer determines that additional information is necessary, he or she
will notify the claimant in writing of the deficiencies and afford a
reasonable opportunity for the claimant to supply such information.
Failure of a claimant to respond to a request for additional
information shall be deemed to constitute a relinquishment of any
rights purported to have been acquired under R.S. 2477. The authorized
officer will not process claims if the claimant fails to respond to a
request for additional information. A decision refusing to process
incomplete claims will constitute final agency action.
(b) Consultation with other Federal agencies. The authorized
officer will consult with any other Federal agencies that have
management authority over lands crossed by the claim.
(c) Consultation with the Bureau of Indian Affairs. The authorized
officer shall consult with the appropriate Area Office of the Bureau of
Indian Affairs in any case in which a claim crosses land in any of the
following categories:
(1) Land that is individually owned by Indians or Alaska Natives or
any interest therein that is held in trust by the United States for the
benefit of individual Indians or Alaska Natives and land or any
interest therein held by individual Indians or Alaska Natives subject
to Federal restrictions against alienation or encumbrance;
(2) Tribal land, which is land or any interest therein, title to
which is held by the United States in trust for an Indian tribe, or
title to which is held by any tribe subject to Federal restrictions
against alienation or encumbrance, including such land reserved for
Bureau of Indian Affairs administrative purposes. Also included in this
category are lands held by the United States in trust for an Indian
corporation chartered under Section 17 of the Act of June 18, 1934, 48
Stat. 988, 25 U.S.C. 477; or
(3) Government owned land, which is land owned by the United States
and under the jurisdiction of the Secretary and that was acquired or
set aside solely for the use and benefit of Indians or Alaska Natives;
or land for which an allotment application is pending and that was not
included in the lands set forth in paragraphs (c) (1) and (2) of this
section; or land that has been selected by but not yet conveyed to
corporations created pursuant to the Alaska Native Claims Settlement
Act, Pub. L. 92-203, 7-8, 85 Stat. 688, 691-4 (1971).
(d) Public notification of filing of a claim. The authorized
officer will publish in a newspaper of local distribution in the
vicinity of the claim once a week for 3 consecutive weeks a notice of
filing of the claim. The public comment period will begin the day after
the last publication date and last for a minimum of 30 days. The notice
of filing will include:
(1) The name and mailing address of the claimant;
(2) The name or number and location of the right-of-way claimed to
have been validly acquired pursuant to R.S. 2477 as identified on the
claimant's formal public highway records;
(3) The office in which the claim was filed;
(4) Notice of availability of the claim for public inspection and
review;
(5) The address where public comments may be mailed; and
(6) The date after which public comments will not be considered.
(e) Disqualification of the claim. The authorized officer will not
process a claim if the subject right-of-way has been previously
judicially or administratively determined not to be a validly acquired
right-of-way pursuant to R.S. 2477.
(f) Review of the claim. The authorized officer will review the
claim and determine whether it contains sufficient evidence to prove
that the right-of-way was validly acquired pursuant to R.S. 2477.
(g) Administrative determination.
(1) After review of the information submitted by the claimant,
review of Bureau of Land Management official public land records,
review of any applicable State law, consultation with affected Federal
agencies, and consideration of public comment, if any, the authorized
officer will prepare an administrative determination.
(2) The administrative determination will not be final until it is
concurred in by the authorized officer of the Bureau of Land
Management, U.S. Fish and Wildlife Service, and National Park Service
that has jurisdiction over lands crossed by the claim.
(3) The administrative determination will include a finding of
whether a right-of-way pursuant to R.S. 2477 on lands in the
jurisdiction of the Bureau of Land Management, U.S. Fish and Wildlife
Service, and National Park Service was validly acquired, and, if so,
will describe the scope of the right-of-way.
(4) The final administrative determination will be sent to the
claimant.
(h) Public notification of administrative determination. The
authorized officer will publish a notice of the administrative
determination in a newspaper of general distribution in the vicinity of
the claim and in the Federal Register. A copy of the administrative
determination will be sent to the claimant.
Sec. 39.9 Appeals procedure from administrative determinations.
(a) Administrative determinations of the authorized officer will be
put into full force and effect 30 days after publication in the Federal
Register unless an appeal under this section is filed during that time.
(b) Any person or entity adversely affected by an administrative
determination under this part may appeal the administrative
determination to the Director of the Bureau or Service of the
authorized officer.
(1) The appeal shall be in writing and shall be filed with the
Director within 30 days of the date of publication in the Federal
Register. If the appellant is other than the claimant, the appellant
shall send a copy of the appeal to the claimant at the same time.
(2) The appeal shall contain:
(i) The name, address, telephone number, and interest of the person
filing the appeal;
(ii) A statement of the issue or issues being appealed; and
(iii) A concise statement explaining why the appellant believes
that the authorized officer's administrative determination is factually
or legally wrong.
(c) The official files of the authorized officer and any statements
or documents submitted by the claimant or the public on which the
decision of the authorized officer was based shall constitute the
record on appeal. If the appellant is other than the claimant, the
claimant shall be offered an opportunity to comment on the appellant's
statements made under paragraph (b)(2) of this section.
(d) If the Director considers the record inadequate to support the
decision on appeal, he or she may require the production of such
additional evidence or information as deemed appropriate, and may
provide for a hearing as deemed appropriate.
(e) The Director will promptly render a decision on the appeal. The
decision will not be effective until it is concurred in by the Director
of each Department of the Interior land managing agency that has
jurisdiction over lands crossed by the claim. The decision will be in
writing and will set forth the reasons for the decision. The decision
will be sent to the appellant, and if the appellant is other than the
claimant, to the claimant.
(f) The decision of the Director will be the final agency action of
the Department of the Interior.
Sec. 39.10 Interim activity.
(a) During the processing of a claim and any administrative appeal,
a claimant may perform routine maintenance.
(b) A claimant performing routine maintenance shall notify the
appropriate office at least 3 business days in advance of the date the
work is to be performed. Routine maintenance is subject to the approval
of the appropriate office. The appropriate office as it applies to this
section is the area or district office of the Bureau of Land
Management, the Superintendent of the National Park System Unit, or the
Manager of the National Wildlife Refuge, that has jurisdiction over the
lands crossed by the portion of the claim on which the routine
maintenance will take place.
(c) Interim activity authorized under this section shall be limited
to those rights-of-way currently maintained by the claimant and after
[30 days plus 2 years after date of publication of final rule] only
those routes actually claimed by a claimant.
Sec. 39.11 Information collection. [Reserved]
George T. Frampton Jr.,
Assistant Secretary of the Interior.
Nancy K. Hayes,
Acting Assistant Secretary of the Interior.
[FR Doc. 94-18622 Filed 7-29-94; 8:45 am]
BILLING CODE 4310-84-P, 4310-55-P, 4310-70-P
