	Introduction

A succinct provision in an 1866 statute known as "R.S. (1) 
This provision was repealed in 1976 by the Federal Land Policy and Management Act(FLPMA), an act that also protected valid rights of way established by that time. What definitions,criteria, and law should be applied to confirm or validate the existence of these pre-1976 R.S. The issues are important to states andcommunities whose highway systems are affected. Also, the rights of way may run either throughundeveloped federal lands that might otherwise qualify for wilderness designation or across landsthat are now private or within federal reserves (such as parks or national forests) created after thehighways might have been established. The issuance of a disclaimer can help remove a cloud fromland title because it has the same effect as though the United States had conveyed any interest it has. 2477 rights of way and therefore do not violate Â§ 108 of P.L. 2477rights of way will be validated and by applying what criteria are controversial issues. Neither the Utah MOU nor the supplemental BLM guidance for implementing it sets out thecriteria that will be used by the United States to determine the validity of asserted R.S. 2477 claims. 2477 grants. The relationship of the amended disclaimer regulations to thatstatute and to the prohibition against rules that "pertain to" R.S. Finally, H.R.1639 and other actions in the current Congress also are discussed. This report will beupdated as circumstances warrant; see CRS Report for Congress RS21402: Federal Lands,"Disclaimers of Interest," and R.S. Section 315 Disclaimers

		Section 315 and Regulations

Section 315 of FLPMA authorizes the Secretary of the Interior to use disclaimers in certaincircumstances, and reads in part:
After consulting with any affected Federalagency, the Secretary is authorized to issue a document of disclaimer of interest or interests in anylands in any form suitable for recordation, where the disclaimer will help remove a cloud on the titleof such lands and where he determines (1) a record interest of the United States in lands hasterminated by operation of law or is otherwise invalid; or .... (23)
When a party formally disclaims an interest in real property, the result is to help clear titleto the property interest that is the subject of the disclaimer. Unchanged regulations also statethat the purpose of the procedure is to eliminate the necessity for court action or private legislationin certain circumstances, including when there is a cloud on the title to the lands that is attributableto the United States :
The purpose of a disclaimer is to eliminate the necessityfor court action or private legislation in those instances where the United States asserts no ownershipor record interest, based upon a determination by the Secretary of the Interior that there is a cloudon the title to the lands, attributable to the United States, and that: (1) A record interest of the United States in lands has terminated by operation of lawor is otherwise invalid; or ... [additional language reflecting the Â§ 315 language ondisclaimers involving submerged lands]. See H.R. (72) It is not clear whether the 1997 R.S. 104-208 is still in effect, whether the new changes to the disclaimer regulations "pertain to"recognition and validity of R.S. 2477 rights of way has recently been clarified by the execution of a Memorandum ofUnderstanding (MOU) on April 9, 2003, between the Secretary of the Interior and the state of Utahto establish an "acknowledgment process" for recognizing some R.S. 2477 grant was for the"construction of highways across public lands not reserved." 2477, Congress can be said to have been awareof R.S. 2477 claims. 2477 right of way is that which is reasonable and necessary to ensure safe travelfor the uses made of the right of way at the time of repeal of R.S. The House approved an amendment to FY2004 Interior and Related Agencies Appropriations( H.R.
A succinct provision in an 1866 statute known as "R.S. 2477" granted rights of wayacross unreserved federal lands for "the construction of highways." The provision was repealed in1976 by the Federal Land Policy and Management Act (FLPMA), an act that also protected validrights of way already established by that time. What definitions, criteria, and law should be appliedto confirm or validate these R.S. 2477 rights of way has been controversial. The issuesare important to states and communities whose highway systems are affected. The issues are alsoimportant because the rights of way may run either through undeveloped federal lands that mightotherwise qualify for wilderness designation or across lands that are now private or within federalreserves (such as parks or national forests) created after the highways might have been established.
Section 315 of FLPMA authorizes the Secretary of the Interior to issue a "disclaimer ofinterest" if an interest or interests of the United States in lands has "terminated by operation of lawor is otherwise invalid." A disclaimer is a recordable document that can help remove a cloud fromland title because it has the same effect as if the United States had conveyed the interest in question. The Department of the Interior has finalized amendments to existing regulations on disclaimers ofinterest that allow states, state political subdivisions, and others to apply for disclaimers thatpreviously were time-barred. A recent Memorandum of Understanding (MOU) between Utah andthe Department of the Interior establishes an "acknowledgment process" whereby R.S.2477 rights of way on certain federal lands can be validated and a disclaimer to themissued by the United States. Several other states have requested negotiations to develop MOUsregarding R.S. 2477 rights of way.
The disclaimer regulation changes are controversial for many reasons; one of which is thatCongress in Â§ 108 of P.L. 104-208 prohibited regulations "pertaining to" R.S. 2477 frombecoming effective without Congressional approval. The use of disclaimers to acknowledge R.S.2477 rights of way is also controversial because the criteria that will be used to determinethe validity of asserted R.S. 2477 claims are not set out, and without clearly stated criteriaand standards, it is not clear whether the terms of Â§ 315 have been met -- whether a disclaimableinterest of the United States has terminated or not. Most agree that a resolution of R.S.2477 validity issues is desirable, but there is disagreement on standards and on whetherand how the Congress and the courts should be involved. H.R. 1639 in the 108thCongress would authorize a process for determining the validity of R.S. 2477 claims anddefine crucial terms for those determinations. A House-passed amendment to FY2004 Interior andRelated Agencies Appropriations ( H.R. 2691 ) would have prohibited implementationof the disclaimer regulation amendments in certain federal conservation areas, but was removed inconference. This report reviews the disclaimer provision of Â§ 315 of FLPMA, the Utah MOU, theR.S. 2477 grant to construct highways and interpretation of it, the relationship of the newdisclaimer regulations to that statute and to the statutory prohibition against rules that "pertain to"R.S. 2477, and H.R. 1639. It will be updated as events warrant; see CRS Report RS21402 for information on recent events.