Revised Statute 2477 Rights-of-Way

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uses--was repealed in 1976, but valid existing rights-of-way were not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