First Regular Session

Sixty-first General Assembly

LLS NO. R97@0759.01 KLA

STATE OF COLORADO

BY REPRESENTATIVE Entz;

also SENATOR Ament.

ENGROSSED

AGRICULTURE

HOUSE JOINT RESOLUTION 97­1030

WHEREAS, Revised Statute 2477 (43 U.S.C. 932) provided "the right­of­way for the construction of highways over public lands, not reserved for public uses, is hereby granted"; and

WHEREAS, RS 2477 was enacted as part of the Mining Act of 1866 intending to further the settlement of the West; and

WHEREAS, The construction of highways over the extensive ranges of public lands which dominate the West, as allowed by RS 2477, made the land far more accessible and conducive to settlement; and

WHEREAS, The United States Congress repealed RS 2477 in 1976 in the Federal Land Policy and Management Act, but the Act expressly reserved existing rights­of­way created under RS 2477; and

WHEREAS, The United States Department of the Interior adopted regulations in 1938 stating that RS 2477 is "effective upon the construction or establishing of highways, in accordance with State laws, over public lands not reserved for public uses"; and

WHEREAS, The interpretation of RS 2477 by the Department of the Interior remained unchanged until the repeal of the statute and related regulations; and

WHEREAS, Federal and state courts have consistently ruled for 100 years that it was the intent of the U.S. Congress in enacting RS 2477 that the law of the state where the RS 2477 right­of­way is located defines the act that constitutes acceptance and the scope of the right­of­way; and

WHEREAS, The Department of the Interior is attempting to administratively rescind the long­standing and widely accepted interpretations of RS 2477 by adopting regulations that would reverse prior regulations and long­standing case law by forcing states and local governments to follow an excessively bureaucratic process, undertake costly procedures, and enter into extensive litigation which could severely restrict or even eliminate the RS 2477 rights­of­way in many Western states including Colorado; and

WHEREAS, The U.S. Congress successfully derailed implementation of Department of the Interior regulations by inserting language prohibiting use of the fiscal year 1996 budget for such purposes; and

WHEREAS, Appropriations in fiscal year 1997 allow for publication of Department of the Interior regulations, but specifically prohibit the regulations from going into effect unless "expressly authorized by an Act of Congress"; and

WHEREAS, Department of the Interior Secretary Bruce Babbitt issued a new policy on January 22, 1997, that revoked a 1988 policy and established a new revised policy "for carrying out any determinations the Department might be called upon to make regarding RS 2477"; and

WHEREAS, The new policy by Secretary Babbitt essentially requires that each RS 2477 right­of­way be reestablished through lengthy and costly litigation; and

WHEREAS, Secretary Babbitt's policy establishes new requirements that essentially require Department of the Interior approval before any RS 2477 rights­of­way assertions will be acceptable; and

WHEREAS, The new policy by Secretary Babbitt is designed to create a bureaucratic impediment to legitimate claims to RS 2477 rights­of­way; and

WHEREAS, This new policy illustrates the continuing and escalating "War on the West" being waged by Secretary Babbitt; and

WHEREAS, Many western states, such as Alaska, are currently endorsing efforts by their Congressional delegations to preserve and protect the original meaning of RS 2477 and to provide adequate access to their lands and resources; and

WHEREAS, The effects of Secretary Babbitt's new policy for RS 2477 rights­of­way are unknown as of yet and the effect on Colorado's highways may be significant; now, therefore,

Be It Resolved by the House of Representatives of the Sixty­first General Assembly of the State of Colorado, the Senate concurring herein:

That we, the members of the General Assembly, respectfully request the members of the Colorado Congressional Delegation to enact a provision into federal statute that would ensure that federal law recognizes the preeminence of state law in regard to the construction and establishment of RS 2477 rights­of­way, as was intended by the original law and as has been recognized by 100 years of judicial decisions and 38 years of Department of the Interior regulations.

Be it further resolved, That the Colorado General Assembly respectfully requests that the U.S. Congress include a reasonable time period and process for the assertion, recognition, and determination of RS 2477 rights­of­way as part of any legislation addressing RS 2477 rights­of­way.

Be it further resolved, That the Colorado General Assembly respectfully request Governor Roy Romer to direct the appropriate state department in cooperation with affected local governments to implement a proactive and aggressive program to assert Colorado's ownership of RS 2477 rights­of­way.

Be it further resolved, That copies of this resolution be sent to each member of Colorado's Congressional Delegation and to Governor Roy Romer.