PROPOSED AMENDMENT
SENATE AMENDMENTS TO S.C.M. 1002
(Reference to printed memorial)
Strike everything after the enacting clause and insert:
"Whereas, in order to promote settlement of the American West in the 1800s and provide access to mining deposits located under federal lands, the United States Congress granted rights-of-way across public lands for the construction of highways by a provision of the Mining Law of 1866, now known as Revised Statute (R.S.) 2477; and
Whereas, the United States Congress repealed R.S. 2477 in 1976 as part of its enactment of the Federal Land Policy and Management Act, along with the repeal of other federal statutory rights-of-way, but it expressly preserved R.S. 2477 rights-of-way that already had been established; and
Whereas, in its entirety, R.S. 2477 provided that "the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted"; and
Whereas, R.S. 2477 was self-executing and did not require government approval or public recording of title, which resulted in uncertainty regarding whether particular rights-of-way had in fact been established; and
Whereas, in April 2014, the Tenth Circuit Court of Appeals issued a decision in San Juan County v. United States in which the court rejected the notion that state law should determine the entire scope of R.S. 2477 rights‑of-way, holding that state law has provided "convenient and appropriate principles" for determining the scope and validity of an R.S. 2477 right-of-way, but it can be dismissed when it "contravenes congressional intent"; and
Whereas, in October 2014, the Ninth Circuit Court of Appeals issued a decision in County of Shoshone v. United States in which it confirmed that state law controls, or is "borrowed," in determining what constitutes sufficient public use, reflecting a rejection of the approach taken by the Tenth Circuit Court of Appeals in San Juan County v. United States; and
Whereas, outdoor recreation is an essential industry in Arizona, generating $10.6 billion in consumer spending, 104,000 direct Arizona jobs, $3.3 billion in wages and salaries and $787 million in state and local tax revenue; and
Whereas, the reduction of public roads in this state would diminish access to and enjoyment of outdoor recreation opportunities on public lands, detrimentally impacting Arizona's economy.
Wherefore your memorialist, the Senate of the State of Arizona, the House of Representatives concurring, prays:
1. That the Members of the United States Congress enact legislation that is consistent with the decision of the Ninth Circuit Court of Appeals in County of Shoshone v. United States and that confirms that state law determines the entire scope of R.S. 2477 rights-of-way.
2. That the Secretary of State of the State of Arizona transmit copies of this Memorial to the President of the United States, the President of the United States Senate, the Speaker of the United States House of Representatives and each Member of Congress from the State of Arizona."
Amend title to conform