RONALD E. BUSH, United States Magistrate Judge.
Now pending before the Court are (1) Plaintiffs' Motion for Partial Summary Judgment (Docket No. 32), and (2) Defendants' Motion for Summary Judgment (Docket No. 36). Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
This action speaks to a controversy rooted deep into the early history of Idaho, involving the legal status of claims to rights-of-way for the construction of roadways across federal lands. Here, the Court is asked to decide the legal status of a mountainous passage route that dates to 1884, located in Shoshone County, Idaho, referred to by the parties as the "Eagle Creek Road."
In 1866, Congress enacted an open-ended grant of "[t]he right[-]of[-]way for the construction of highways over public lands, not reserved for public uses...." Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by Federal Land Policy Management Act
In enacting FLPMA in 1976, Congress abandoned this approach to public lands by moving to a different policy which emphasized the retention of federal lands with an increased emphasis on conservation and preservation. See id. at 741 (citing 43 U.S.C. § 1701 et seq.).
Even though FLPMA repealed R.S. 2477, it nonetheless preserved any rights-of-way that existed before FLPMA's October 21, 1976 effective date, and any such qualifying rights-of-way remain valid today. See 43 U.S.C. § 1769(a); see also Southern Utah Wilderness Alliance, 425 F.3d at 741 ("[FLPMA] thus had the effect of `freezing' R.S. 2477 rights as they were in 1976.") (citing Sierra Club v. Hodel, 848 F.2d 1068, 1081 (10th Cir.1988)). No R.S. 2477 right-of-way may be established, however, once the land in question is withdrawn from the public domain or included within a reserve. See Adams v. United States, 3 F.3d 1254, 1258 (9th Cir.1993); see also United States v. Jenks, 804 F.Supp. 232, 235-36 (D.N.M.1992) (roads created after Presidential proclamation reserved land as national forest were not public roads under R.S. 2477).
Still, Congress never specified a particular method or procedure for establishing R.S. 2477 rights-of-way. Indeed, "the establishment of R.S. 2477 rights[-]of[-]way required no administrative formalities: no entry, no application, no license, no patent, and no deed on the federal side; no formal act of public acceptance on the part of the states or localities in whom the right was vested." Southern Utah Wilderness Alliance, 425 F.3d at 741; see also Report to Congress on R.S. 2477: The History and Management of R.S. 2477 Rights-of-Way Claims on Federal and Other Lands (June 1993) (explaining that R.S. 2477 highways "were constructed without any approval from the federal government and with no documentation of the public land records, so there are few official records documenting the right-of-way or indicating that a highway was constructed on federal land under this authority."). This, coupled with the fact that parties rarely had need to wrestle with R.S. 2477 issues while the statute was still in force (especially when considering the federal government's pre-1976 policy of opening and developing public lands), can make for a difficult, well-after-the-fact, task to prove an R.S. 2477 right-of-way, sending litigants to "the historical archives for documentation of matters no one had reason to document at the time." Southern Utah Wilderness Alliance, 425 F.3d at 742.
This case presents such a task for Plaintiffs. Answering the question of whether Eagle Creek Road is an R.S. 2477 right-of-way requires an examination of events taking place between: (1) 1884, when the Eagle Creek Road first came into existence to help miners and merchants traverse from Montana into Coeur d'Alene gold fields, and (2) November 6, 1906, when President Theodore Roosevelt created the Coeur d'Alene Forest Reserve and withdrew/reserved the land upon which the Eagle Creek Road is located from the public domain (see Defs.' Ex. 77 (President Roosevelt's proclamation reserving lands
Not surprisingly, given the length of time since the events underlying this lawsuit, there is no direct testimony about the history of the road. All of the evidence is drawn from the historical record — from contemporaneous but still extant written accounts of the creation and use of the route, or from government records touching upon the mining claims in the vicinity, or from the records of other governmental activities relating to the ongoing business of the vicinity. There are maps of many forms, newspaper articles from the gold rush maelstrom of the time, records of patented and unpatented mining claims, and historical accounts authored at different times over the last century by local historians or government agencies. The record is an enormous patchwork of such evidence, with interlocking pieces in some instances, and missing parts in other instances.
The Court has scrutinized, considered, and weighed each of the hundreds of documents in the record. The Court has carefully read the parties' respective historical narratives, offered through the reports or declarations of those employed to trace the history of the road. The parties' briefing, which places the historical record upon the legal template of R.S. 2477 and applicable Idaho law, was a great aid to the Court, and has been pondered at length.
Plaintiffs Shoshone County, George Stephenson, and New Jersey Mining Company (collectively "Plaintiffs") bring this action against, among many others, Defendant U.S. Forest Service (collectively "Defendants"), seeking to re-open Eagle Creek Road to public access. See Pls.' Compl. (Docket No. 1) (asserting four, interrelated, claims for relief). Despite the underlying dispute, the parties generally agree upon many of the historical facts giving rise to Eagle Creek Road and, thus, the foundation for the Court's consideration of the parties' cross motions for summary judgment.
In 1883, in the quintessential rush following the discovery of gold near Prichard Creek (a tributary to the North Fork of the Coeur d'Alene River), the mining camp of Eagle City was thrown down in the area where Eagle Creek joins Prichard Creek. The location was near the first placer claims, and took advantage of one of the few "flats" found in the otherwise heavily timbered and steep countryside. Much of the "rush" to Eagle City took place in the Fall and Winter of 1883, and on into the early months of 1884, when entrepreneurs in Belknap, Montana (located on the Northern Pacific Railroad's main line) sought ways to take a merchant's profit from the eager gold seekers headed for the Eagle Creek district. These businessmen immediately set about trying to build the most direct route the topography would allow between Belknap and Eagle City (crossing over the summits of the Bitterroot Mountains that divided the Montana Territory and the Idaho Territory) and then promoted the "Belknap Trail" route to new arrivers even as it was just being established, as the shortest route to the gold claims. The parties disagree as to the exact form of Eagle Creek Road in those early years, but they do agree that whatever form it did take, it existed over some part of the Belknap Trail.
By the Spring of 1885, however, nearby Murray, Idaho supplanted Eagle City as the center of mining activity in the area. See Defs.' SOF, p. 1, ¶ 3 (Docket No. 37); see also Pls.' Resp. to SOF, p., 2, ¶ 3 (Docket No. 50, Att. 1). As a result, other routes, more direct to Murray, began connecting the Northern Pacific Railroad in Montana and the Coeur d'Alene gold fields. One was the "New Belknap Trail," which altogether avoided Eagle Creek Road and Eagle City, shortening the distance between Belknap and Murray by approximately six miles. See Defs.' SOF, pp. 1-2, ¶ 4 (Docket No. 37); see also Pls.' Resp. to SOF, pp. 2-3, ¶ 4 (Docket No. 50, Att. 1).
Despite agreement about some historical facts, the parties differ in their respective characterizations of Eagle Creek Road's importance, use, and maintenance over time. That disagreement is a central fulcrum of this lawsuit, and one which the Court must resolve in order to decide the pending motions.
For example, notwithstanding the ascension of Murray over Eagle City, coupled with the emergence of the New Belknap Trail, Plaintiffs contend that activity along Eagle Creek Road "did not materially change" as evidenced by the mining records, government declarations in county commission records, voting records, and purported county maintenance of the road:
• Petitions from residents of Ellensburg, Idaho (located in the Eagle Creek drainages upstream from the town) in March and April of 1885 to the Shoshone County Board of Commissioners requested the declaration of a county road from Ellensburg to Eagle City. Plaintiffs contend such a declaration must have been made, even though there is no record of such, because the Commissioners, on July 13, 1885, did enact a declaration of county road between the "Ellensburg to Eagle Road" and Doctorville, Idaho (another mining camp in the Eagle Creek drainage), demonstrating that the petition for the Ellensburg to Eagle Road was granted, but inadvertently omitted from the Shoshone County Commissioners Minutes. See Pls.' SOF, pp. 4-6, ¶¶ 13-14 & 18-20 (Docket No. 32, Att. 2); see also Pls.' Resp. to SOF, p. 3, ¶ 5 (Docket No. 50, Att. 1).
• A number of government mineral surveys between 1887-1888 reference "a good wagon road" and "a good trail" attributable to Eagle Creek Road. See Pls.' SOF, p. 4, ¶ 15 (Docket No. 32, Att. 2).
• Several maps printed between 1891-1904 identify the Belknap Trail and the Eagle Creek Road. See Pls.' SOF, p. 5, ¶ 16 (Docket No. 32, Att. 2); see also Pls.' Resp. to SOF, p. 3, ¶ 6 (Docket No. 50, Att. 1).
• The April 10, 1906 Shoshone County Commissioners Minutes report a petition
• In the 1884-1885 Legislative Session, Idaho's Territorial Legislature passed An Act to Amend an Act Regulating Roads, Highways and Public Thoroughfares in Idaho Territory — requiring that counties create road districts, appoint supervisors of roads to run the road districts, and assess taxes, spend money, and engage labor to maintain the roads in such districts. Consistent with this law, on January 21, 1885, the Shoshone County Commissioners established District No. 2, which included Eagle Creek Road. Nearly a month later, however, the Shoshone County Commissioners created a new Road District — District No. 6 — which included most of the Eagle Creek drainage; the only known road within District No. 6 was Eagle Creek Road. Thereafter District No. 6 merged into District No. 2 and, between 1885-1906, taxes were collected and expenditures were made for roads within that District. See Pls.' SOF, pp. 6-7, ¶¶ 21-28 (Docket No. 32, Att. 2).
• Along with unpatented mining claims, several patented mineral claims were granted within the East Fork of Eagle Creek drainage before 1906, upon which these claims relied upon the Eagle Creek Road for access. See Pls.' SOF, p. 8, ¶¶ 30-31 (Docket No. 32, Att. 2); see also Pls.' Resp. to SOF, pp. 2-4, ¶¶ 3 & 7 (Docket No. 50, Att. 1).
In stark contrast, Defendants assert that, nearly as quick as the Eagle Creek Road portion of the Belknap Trail came into existence, miners and the new fortune seekers abandoned Eagle City for Murray (the minerals in the area having either played out, already been claimed, or having proved too difficult to mine profitably). According to Defendants, Eagle Creek Road was no longer needed and, thus, no longer regularly used as a thoroughfare connecting the railroad to the area, commenting:
• In 1906, several attempts were made to obtain public funding for the Eagle Creek route but they were unsuccessful. Two petitions were submitted to Shoshone County to "assist" with "improvement" and "betterment" of the route and to "establish" or "create" a road to the mouth of Tributary Creek. Both were explicitly "tabled" and rejected by the County. At about the same time, the Idaho Intermountain Wagon Road Commission considered a petition for the construction of a road from the Dunlap and Smith placer camp to Jack Waite Forks. The Commission rejected this petition because the proposal "seemed to be largely for the benefit of one mine." See Defs.' SOF, p. 3, ¶ 8 (Docket No. 37).
Armed with their own version of the historical facts surrounding this action, both parties move for summary judgment concerning the legal status of Eagle Creek Road as contemplated by R.S. 2477 and the case law interpreting its application to situations like this.
For their part, Plaintiffs argue that Eagle Creek Road constitutes an R.S. 2477 right-of-way as a matter of law because, during the relevant time period, it represented a "highway" under Idaho law due to its (1) regular public use over the requisite period of time, (2) declaration as a "county road" by Shoshone County, and (3) maintenance by Shoshone County at the public's expense. See Pls.' Mem. in Supp. of Mot. for Partial Summ. J. ("Pls.' MSJ"), pp. 1, 10-17 (Docket No. 32, Att. 1). Alternatively, Plaintiffs argue that, in response to the Shoshone County Board of Commissioners' relatively recent validation of Eagle Creek Road as a public right-of-way, Defendants never sought judicial review of that decision under Idaho law and are therefore barred from now objecting to Plaintiffs' attempt at establishing Eagle Creek Road as an R.S. 2477 right-of-way. See id. at pp. 1, 17-20.
Defendants not only dispute Plaintiffs' arguments, but affirmatively seek an opposite ruling — namely, that Eagle Creek Road is not an R.S. 2477 right-of-way as a matter of law. See Defs.' Mem. in Supp. of Mot. for Summ. J./Opp. to Pls.' MSJ ("Defs.' MSJ"), pp. 13, 23-38 (Docket No. 40). Defendants also raise procedural arguments
The Court heard oral argument on the parties' cross motions for summary judgment in the federal courthouse in Coeur d'Alene, Idaho. The following day, the Court, the parties, their representatives, and the parties' counsel participated in a site inspection of Eagle Creek Road. Pursuant to the agreement of all parties, the site inspection involved an auto-tour of the portions of Eagle Creek Road open to automobile travel, followed by foot travel over the portion of Eagle Creek Road that is not open to automobile travel. The particular sections of Eagle Creek Road so traveled are identified as different sections in the map exhibits and briefing submitted by the parties in conjunction with the pending motions.
Following the site inspection, the Court permitted the parties to file a written follow-up, giving each party an opportunity to connect their written and oral arguments as to the pending motions with the observations made during the site inspection. Those written follow-ups have since been submitted to the Court (see Docket Nos. 63-66), along with several notices of supplemental authority (see Docket Nos. 67, 68, 70, 72-73, & 79-80). Therefore, this Memorandum Decision and Order resolves the issues presented by the parties' briefing to date.
Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). One of the principal purposes of the summary judgment "is to isolate and dispose of factually unsupported claims...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool [] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327, 106 S.Ct. 2548. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505.
The evidence, including all reasonable inferences which may be drawn therefrom, must be viewed in a light most favorable to the non-moving party and the Court must not make credibility findings. See id. at 255, 106 S.Ct. 2505. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in his favor. See id. at 256-57, 106 S.Ct. 2505. The non-moving party must go beyond the pleadings and show "by [his] affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
As a general rule, the Court is "not required to comb through the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir.2001) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir.1988)). Instead, the "party opposing summary judgment must direct [the Court's] attention to specific triable facts." Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir.2003). An exception to this rule exists when cross-motions for summary judgment are filed. In that case, the Court must independently search the record for issues of fact. See Fair Housing Council of Riverside Co., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001).
In cases such as this, contemporaneous direct evidence is hard to come by and is, not surprisingly, largely absent from this record. What remains — circumstantial evidence — is appropriately considered, but in order to support a party's argument, such evidence must be more than mere conclusions, and the strength of such evidence turns upon the strength of the inferences to be drawn from the evidence, particularly when measured against the larger context of all of the historical record.
As a limited waiver of sovereign immunity, the Quiet Title Act is the sole avenue by which Plaintiffs can prove the existence of its R.S. 2477 rights in court. See Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 286, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983) (holding that Quiet Title act is "the exclusive means by which adverse claimants [may] challenge the United States' title to real property."). Under the Quiet Title Act, the United States may be named as a party defendant in a civil action to adjudicate a disputed title to real property in which the United States claims an interest. See 28 U.S.C. § 2409a(a). However, the Quiet Title Act sets forth heightened pleading requirements: a plaintiff asserting a claim under the Quiet Title Act must "set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States." See 28 U.S.C. § 2409a(d).
Defendants concede Plaintiff Shoshone County's standing to pursue this action. However, Defendants argue that the non-governmental Plaintiffs — George E. Stephenson and the New Jersey Mining Company
Unquestionably, these non-governmental Plaintiffs have some interest in seeking a reopened Eagle Creek Road. Still, those interests — however they may be defined — are shared by the public at large (at least insofar as the public consists of "any resident or property holder" in Shoshone County, as expressed within Idaho Code section 40-203(A)).
Here, the two non-governmental Plaintiffs have an interest in the use of Eagle Creek Road that is shared by the public as a whole. See id. ("Members of the public as such do not have "title" in public roads. To hold otherwise would signify some degree of ownership as an easement. It is apparent that a member of the public cannot assert such an ownership in a public road."). The interest in the title to Eagle Creek Road, however, vests in the public generally or potentially, in this case, Plaintiff Shoshone County. See Long v. Area Manager, Bureau of Reclamation, 236 F.3d 910, 915 (8th Cir. 2001) ("... the right of an individual to use a public road is not a right or interest in property for purposes of the Quiet Title Act. The proper plaintiff to challenge the condemnation of a public road is the governmental entity that owns the easement.").
The Quiet Title Act's waiver of sovereign immunity is subject to a 12-year statute of limitations. Pursuant to 28 U.S.C. § 2409a(g):
28 U.S.C. § 2409a(g). If the statute of limitations has run on a waiver of sovereign immunity, the federal court lacks jurisdiction. See Block, 461 U.S. at 292, 103 S.Ct. 1811 (1983). Because Plaintiffs instituted this action on October 5, 2009, their attempt to quiet title is barred if they knew or should have known of the United States' adverse claim by October 5, 1997.
The statutory term "should have known" imparts a test of reasonableness. See Middle Fork Holding Co., Inc. v. United States, 2010 WL 107380, *3 (D.Idaho 2010); see also Fidelity Exploration and Production Co. v. United States, 506 F.3d 1182, 1186 (9th Cir.2007) ("Although a court `should not construe such a time-bar provision unduly restrictively,' it must `be careful not to interpret it in a manner that would extend the waiver beyond that which Congress intended.'") (quoting Block, 461 U.S. at 287, 103 S.Ct. 1811). To this end, this District Court has held that "an action accrues under the [Quiet Title Act] when the United States' actions would have alerted a reasonable landowner that the government claimed an interest in the land." Middle Fork, 2010 WL 107380 at *3 (citing Shultz v. Dept. of Army, 886 F.2d 1157, 1160 (9th Cir.1989)). The parties accept this general standard, but disagree as to whether, in the context of Defendants' conduct in addressing periodic flooding and washouts along Eagle Creek Road in the late 1990's, Plaintiffs knew or should have known of the United States' adverse claim to Eagle Creek Road before October 5, 1997. See Defs.' MSJ, pp. 17-23 (Docket No. 40); see also Pls.' Resp. to Defs.' MSJ and Reply, pp. 7-10 (Docket No. 49).
To decide this issue, the Court draws upon the underlying factual chronology, which contains the following pertinent details:
Based on such facts, Defendants argue that once the April 21, 1997 Watershed Rehabilitation Environmental Assessment was issued, "Plaintiffs knew or should have known of the Forest Service's proposal to close portions of the Eagle Creek Road...." and, therefore, Plaintiffs' claims are now time-barred. See Defs.' MSJ, p. 22 (Docket No. 40). In response, Plaintiffs argue that not until the October 7, 1997 Decision Notice did any Quiet Title Act claim accrue because, until that point, Plaintiffs were never on notice that their interests in Eagle Creek Road were officially adverse to the United States' interests. See Pls.' Resp. to Defs.' MSJ, pp. 8-10 (Docket No. 49). The Court agrees with Plaintiffs.
First, both the (1) April 21, 1997 Environmental Assessment, and the (2) July 23, 1997 Supplement to the Environmental Assessment, referenced a "No-Action" alternative which, if adopted, would have maintained the status quo with respect to the East Fork of Eagle Creek and Eagle Creek Road. The Forest Service, pursuant to the National Environmental Policy Act ("NEPA"), was required to continue consideration of these alternatives until it made, and announced, its final decision, which did not occur until the October 7, 1997 Decision Notice.
Second, and more fundamentally, Defendants' arguments would implicitly allow Plaintiffs to institute this quiet title action before a final decision was made. Had Plaintiffs' brought their claims before October 7, 1997's Decision Notice, they likely
Middle Fork, 2010 WL 107380 at *3.
Here, the United States absolutely contested Plaintiffs' interest in Eagle Creek Road once it issued its October 7, 1997 Decision Notice closing a 4-mile section of Eagle Creek Road. Requiring Plaintiffs to assert its interests through a quiet title action before then strikes the Court as an awkward and inefficient mechanism for resolving such disputes. Only following the October 7, 1997 Decision Notice, did Plaintiffs absolutely know that their interests and the Government's interests were not aligned.
Because Plaintiffs brought this action within 12 years of October 7, 1997, their claims are not barred by the statute of limitations. Defendants' Motion for Summary Judgment is therefore denied in this respect.
R.S. 2477 provided for "right[s][-]of[-]way for the construction of highways over public lands, not reserved for public uses." See supra. Controversies like the one presented in this action often arise because the establishment of these rights-of-way were completely void of any administrative formalities — no entry, no applications, no licenses, no patents, no deeds, no formal acts of acceptance were needed to establish an R.S. 2477 right-of way. See supra; see also Southern Utah Wilderness Alliance, 425 F.3d at 741 & 754 ("R.S. 2477 was a standing offer of a free right[-]of[-]way over the public domain," acceptance of which occurred "without formal action by public authorities.... All that is required ... are acts on the part of the grantee sufficient to manifest an intent to accept the congressional offer.").
"To begin with, `federal law governs the interpretation of R.S. 2477,' but `in determining what is required for acceptance of a right of way under the statute, federal law `borrows' from long-established principles of state law, to the extent that state law provides convenient and appropriate principles for effectuating congressional intent.'" San Juan Cnty., Utah v. United States, 2011 WL 2144762, *5 (D.Utah 2011) (quoting Southern Utah Wilderness Alliance, 425 F.3d at 768).
The burden of proof to establish the existence of an R.S. 2477 right-of-way falls squarely upon the claimants who seek to enforce rights-of-way against the United States. See Cnty. of Inyo, 873 F.Supp.2d at 1239-40; see also San Juan Cnty., 2011 WL 2144762 at *5 (citing Southern Utah Wilderness Alliance, 425 F.3d at 768). Moreover, under federal law, "land grants are construed favorably to the Government, that nothing passes except what is conveyed in clear language, and that if there are doubts they are resolved for the Government, not against it." Id. "[I]t has long been the law that land `grants must be construed favorably to the government and that nothing passes but what is conveyed in clear and explicit language-inferences being resolved not against but for the government.'" The Wilderness Society v. Kane Cnty., 581 F.3d 1198, 1220 (10th Cir.2009) (reversed on other grounds en banc) (quoting Caldwell v. United States, 250 U.S. 14, 20, 39 S.Ct. 397, 63 L.Ed. 816 (1919)); accord, Adams, 3 F.3d at 1258 (9th Cir.1993).
Hence, it is Plaintiffs' burden to prove that Eagle Creek Road was a "highway" under Idaho law prior to the land subsuming Eagle Creek Road exiting the public domain on November 6, 1906. See Pls.' MSJ, p. 10 (Docket No. 32, Att. 1) ("Therefore, if a public right-of-way was established under state law before the repeal of R.S. 2477, and before reservation from the public domain, then it remains a valid right-of-way under the federal government's R.S. 2477 grant.").
Under Idaho law, a public right-of-way is established by either (1) use in compliance with road creation statutes, or (2) a positive act of acceptance by the local government. See Galli v. Idaho Cnty., 146 Idaho 155, 191 P.3d 233, 237 (2008) (citing Farrell v. Bd. of Comm'nr of Lemhi Cnty., 138 Idaho 378, 64 P.3d 304, 310 (2002)).
As to the first method, section 850 of the [Territorial] Revised Statutes of 1887 defines "highways" as "roads, streets or alleys, and bridges, laid out or erected by
As to the second method for establishing a public right-of-way under Idaho law, "there must be some positive act or acts on the part of the proper public authorities clearly manifesting an intention to accept such grant with respect to the particular highway in question." Kirk, 119 P.2d at 268. In Kirk, the Idaho Supreme Court held that such acceptance could include (1) a designation as a public highway, (2) a recording by order of the Board of County Commissioners, or (3) maintenance by public expenditure. See id.
Therefore, to establish an R.S. 2477 right-of-way in Eagle Creek Road, Plaintiffs must show either that (1) Eagle Creek Road represented a highway under Idaho's applicable road creation statute before the surrounding land's reservation in 1906, or (2) the appropriate public authority took an affirmative act recognizing Eagle Creek Road as a highway under Idaho law. In their third and fourth claims for relief, Plaintiffs allege that Eagle Creek Road represents an R.S. 2477 right-of-way under both approaches.
To qualify as a highway under Idaho's road creation statutes during the
The parties agree that Eagle Creek Road first came into existence in 1884 as miners began converging on what became Eagle City in response to the area's gold rush. They disagree as to whether Eagle Creek Road was regularly used by the public for five years between 1884 and 1906.
Arguing this to be the case, Plaintiffs point out that (1) government mineral surveys between 1887 and 1888 refer to Eagle Creek Road (or some portion of the same) as a "good wagon road" or a "good trail"; (2) the Shoshone County Board of Commissioners designated Road Districts within Shoshone County to manage county roads, creating a Road District that included the area of Eagle Creek Road in 1885 (later modified and expanded in 1889 and 1895); and (3) in April 1906 (approximately seven months before reservation) a petition was made to the Shoshone County Board of Commissioners requesting the appropriation of funds to improve the "wagon road" then existing from Eagle City to the confluence of the East and West Forks of Eagle Creek to Smith & Dunlap's placer camp — implicitly recognizing the existence of Eagle Creek Road as a county road that residents wanted to be improved. See Pls.' MSJ, pp. 11-12 (Docket No. 32, Att. 1). In the Court's mind, these cited instances fall short of establishing the requisite five years of regular public use, particularly when examining the backdrop of Eagle City's abbreviated life span.
The beginning point in assessing the evidence on this issue is the same beginning point as the Eagle Creek gold rush, and the immediate flood of activity in the region, followed by its equally-as-rapid demise. Many descriptions of the rise and fall of Eagle City, drawn from local and national newspapers and periodicals, have been placed in the record. A contemporaneous account from The Century Magazine, a well-known and widely circulated magazine of its day, is the most compelling. In his lengthy and often prosaic article published in the October 1884 issue, Eugene V. Smalley characterized the Eagle Creek gold rush thusly:
Eugene V. Smalley, "The Coeur d'Alene Stampede." The Century Magazine XXVIII (October 1884), p. 841, attached as Defs.' Ex. 12.
Smalley's account was mirrored by other descriptions found in the early mining camp newspapers (often in the breathless terms characteristic of such publications) and even in the New York Times, which, in its June 1, 1884 edition, described the anxious waiting in the winter of 1883-1884:
Defs.' Ex. 11.
The New York Times article does not identify the trail bringing "several hundred pack animals" a day into Eagle City. An inference could be drawn that it was the Belknap Trail, but the inference would be tempered by the fact that the Belknap Trail was only one of several routes that had sprung up to channel goods and miners across the mountains into Eagle City. In the July 8, 1884 issue of the brand new Idaho Sun newspaper published in Murray, large display ads for two of the competing trails appeared side-by-side. See Pls.' Ex. 11. The Belknap Trail advertisement promised the reader that it was "open to travel," and was the "shortest road to the mines ... [with the] distance from Belknap to Eagle City 32 miles." Id. It was a "Good Road for Horses and Footmen" and could be covered in "10 hours And Less on Horseback." Id. Not so fast, its competitor's ad seemed to say, in trumpeting the qualities of the "Trout Creek Trail" as the "Quickest, Cheapest and Fastest Freight Line from the Northern Pacific Railroad to Eagle, Murray and all points in the Coeur d'Alene Mountains." Id. Yet another of the competing trails, the "Thompson Falls" route, was described three months earlier in The Coeur d'Alene Nugget (another of the nascent mining camp newspapers, but published in Eagle City) as having "a forwarding line established," which "will no doubt make [it] the
Much hope and anticipation was in the air in Eagle City in the Winter and Spring of 1883-1884. But when the snows melted away, far too little was found to satisfy such hopes and anticipation. Smalley chronicled the scene:
Defs.' Ex. 12.
In a different, but still closely contemporaneous, account, James L. Onderdonk, the Controller of the Idaho Territory, described Eagle City's rise and fall in an 1885 book about the Territory, containing "Facts and Statistics" extolling the Territory's "Mining, Farming, Stock-Raising, Lumbering, and Other Resources and Industries" for the "Home-Seeker, Capitalist, Prospector, and Traveler." Onderdonk wrote:
Defs.' Ex. 19.
For this Court, the most significant import of these reports of the gold stampede of 1883-1884 into the Coeur d'Alenes is found in what came immediately after the frenzy — i.e., that the great stampede to Eagle Creek collapsed upon itself like the banks of snow dissolving into the spring freshet. If the historical record had described only the prodigious amounts of supplies that were brought into Eagle City in the Winter of 1883-1884, and the plentitude of fortune seekers waiting for the temperatures to rise and the ground to be revealed, inferences could be reasonably drawn that would favor the Plaintiffs' position. The Court could reasonably assume that the Belknap Trail inevitably must have become a regular thoroughfare for miners, and for the opportunistic merchant
But the historical record does not stop in the Winter of 1883-1884. It continues through that spring, and into the summer, when the promise of the Eagle Creek gold rush vanished in the face of hard realities. Competition was fierce, in limited space, for claims hemmed-in by creek beds and steep hillsides. Those claims that were located were hardly the new El Dorado promoted by the Northern Pacific Railroad.
When the Belknap Trail, on whose skeleton the Plaintiffs seek to place Eagle Creek Road for purposes of meeting R.S. 2477 requirements, was first envisioned, it was intended to be a thoroughfare for miners and others through and across the mountainous divide that separated the mining districts of the Coeur d'Alenes from the Northern Pacific Railroad, the Montana Territory, and points westward and eastward alike. Promoters hoped to create the preferred and most direct route into the center of the new mining excitement, beginning at Belknap and ending in Eagle City, by the least crooked line that could be drawn across the mountains and down the Eagle Creek drainage.
If the Belknap Trail had, in fact, bloomed in that manner, Plaintiffs' case would be much stronger. But the ambition for the Belknap Trail was never realized. The winter route was more of a toboggan run over deep snow than a trail impressed into the landscape. The wagon-width road across the full length of the Belknap trail, even though perceived, was never achieved. Even the advertisement that appeared in the Summer of 1884 announcing the "opening" of the trail could boast at best that it was a "Good Road" for "Horses and Footmen." See Pls.' Ex. 11. It had immediate competition from the neighboring Trout Creek Trail for the ever-dissipating number of miners, and was fighting to gain a toehold even as the mining prospects further to the east near Murray brought the actual mining clamor that had just barely begun in Eagle Creek to the mining camp of Murray instead. Even the businesspeople promoting the Belknap Trail abandoned Eagle Creek and Eagle City, choosing instead to create the most "direct route to Murray" in a "new" Belknap Trail. There was no reason to send freight over the trail to Eagle City, and no reason to finish any work to finish
The record most strongly infers that the Belknap Trail was no longer a route to anything other than the same route for a few miners that had existed before it came into existence — up the creek to wherever the placer claim might be, or up the creek and up the mountain to wherever the lode claim might be found. The route along Eagle Creek to the confluence of the West Fork and East Fork, and then on up the East Fork, following whatever was left of the Old Belknap Trail blazes, became simply the direction one took to get to his claim, one of those places that "the only reason you'll ever go there, is if you need to go there." The real through-way traffic of miners, merchants, and travelers followed Prichard Creek downstream to the Coeur d'Alene River, and to the Jesuit Mission at Cataldo and points further to the west; or up Prichard Creek to Murray, and over the mountains on the new Belknap Trail; or over the Thompson Falls trail to the Montana Territory, for points east. Even the telegraph line strung next to the Belknap Trail as it was being constructed had been long abandoned.
Other than the publications described earlier on in this Decision, there is precious little mention of the original Belknap Trail in the historical record of the five years following the Summer of 1884, at least as it exists in what has been supplied to the Court by the parties in this case. There are references to the trail on maps, but not in consistent fashion. The maps memorialize the mapmakers' understanding of the existence (or claimed existence) of a trail at that particular location. They provide nothing about the nature of the trail upon the ground, or the nature of the use of the trail. Some publications contain occasional mention of the mining claims in the area, but with scant detail, if any, about whether such claims are being worked, and if so, to what degree, by their owners. There are the previously-mentioned survey records of mining claims that were located in the Summer of 1884, but not surveyed until 1888 and later. Ultimately, however, there is a dearth of significant information that would corroborate any sort of regular, non-casual, and non-desultory use of the original Belknap Trail in the years that immediately followed 1884.
Instead, the most persuasive inferences are those drawn from the lack of mention in the historical record. In 1883 and 1884, the local newspapers and even national publications gave great attention to the gold stampede into the Eagle Creek district, and the burgeoning town of Eagle Creek. In the years that followed, there is rarely a mention, other than to say that the Eagle Creek gold rush had ended nearly as quickly as it had begun, and Murray had quickly supplanted Eagle City.
This historical backdrop assists this Court in fully assessing, and ultimately dispatching, each of Plaintiffs' arguments that Eagle Creek Road experienced regular public use for at least five years. This,
The 1887 and 1888 government mineral surveys, although mentioning a "good wagon road" for a short distance upstream from what used to be Eagle City, make clear that, whatever had existed in the summer of 1884 was mostly just a trail three and four years later. Further, the references in those surveys represent snapshots of a subjective description of access to particular mining claims. A description of the access to the mining claims — as (for some, but not all) a partial stretch of "good wagon road" and in all other instances a "good trail" — does not suffice to establish as a matter of law a history of regular public use as is required under applicable law. See, e.g., Galli, 191 P.3d at 238 ("The only documentation was the survey map and notes, which is not adequate to show regular public use for five years."). Moreover, even if interpreted as evidence reflecting some sufficient use to create, for some portion, a "good wagon road," and on other portions, a "good trail," the inferences from such evidence are simply too thin to carry Plaintiffs' burden of proof to demonstrate a five-year-period of regular public use, particularly when measured against the other information in the historical record of that period.
The Court has considered the evidence regarding the creation of road districts in Shoshone County, and the specific mention in some instances of Eagle Creek Road in the county commission records. However, the fact that Road Districts were designated in the same area as Eagle Creek Road — without more — does not establish that Eagle Creek Road existed (in whatever undefined form to which the county commission might have been referring) during that same time and was regularly used by the public for five years or more. To conclude otherwise would mean that every possible trail or road in existence within a particular Road District at that time (and even now in the context of R.S. 2477 rights-of-way) amounted to a highway under Idaho law. The Court cannot make such an all-encompassing finding based strictly upon possibilities and teetering inferences. The Court acknowledges that it must be frustrating for those seeking to assemble such proof when the actors of the historical record could not have anticipated the issues that might arise over a century later. But, where the quilt of that historical record is threadbare, the Court has no authority under applicable law to patch the holes.
Aside from the significant passage of time from the other referenced events that allegedly establish Eagle Creek Road's regular public use, a 1906 petition for funds to improve portions of Eagle Creek Road arguably does more to cut against a finding of regular public use than it does to support one. The Court concludes that such a petition likely reflects the needs of only a select number of individuals that would personally benefit from a maintained Eagle Creek Road. There is no record indicating that such a petition was ever granted. Simply put, if Eagle Creek Road had been regularly used by the public since it was created (in whatever less-than-complete form) for the nearly 20 years before this 1906 petition, then more specific evidence reflecting such use would exist in the record. Instead, the historical record can only be interpreted as an unsuccessful attempt to improve Eagle Creek
With all this in mind, the Court is satisfied that, at least for some discrete period of time in the years 1883-1884, some passageway now known as Eagle Creek Road was used by fortune seekers traveling to Eagle City in pursuit of gold. But the record also reflects that, despite any initial popularity, Eagle Creek Road's use quickly diminished as other, more profitable mining sites became known and, likewise, as more efficient routes to such destinations became necessary. See, e.g., Illustrated History of North Idaho Embracing Nez Perces, Idaho, Latah, Kootenai and Shoshone Counties, State of Idaho, p. 989, attached as Defs.' Ex. 8 ("Eagle City was a magic word in the years 1883-1884. The history of the town was that of a pioneer mining camp; its decline was as rapid as its rise."). The exact progression of such events is not known with any significant degree of certainty notwithstanding both parties' impressive research efforts. Still, what is known, is that Eagle Creek Road was not regularly used by the public for five years between 1884 and 1906.
The Court has considered Plaintiffs' arguments in the context of Idaho case law regarding what constitutes "regular public use," as a reality check against the mostly bare cupboard of evidence of such use for the required period of time found in the record of this case. Perhaps because such cases are generally fact-dependent, the Idaho appellate decisions do not reveal an always uniform weave. However, those cases most factually akin to the instant dispute provide further support for the Court's ruling here.
For instance, in Kirk v. Schultz, 63 Idaho 278, 119 P.2d 266 (1941), the Idaho Supreme Court took up the issue of whether a "public highway" existed under applicable federal and/or territorial law, depending on the at-issue trail's quantum of public use. See id. at 267-68. Though the trail was "well-marked, used as a stock trail, and by miners, hunters, fishermen, and persons on horseback," the Court affirmed the trial court's determination that such use, without more, was only casual and desultory and, therefore, not a public highway. See id. at 267-69.
More recently, in Galli v. Idaho Cnty., 146 Idaho 155, 191 P.3d 233 (2008), the Idaho Supreme Court considered the trial court's reversal of the Idaho County Board of Commissioners' (the "Board") decision to grant appellant an R.S. 2477 right-of way over respondents' private property to access appellant's unpatented mining claim. See id. at 235. In upholding the trial court's finding that the Board's decision was "clearly erroneous," the Court concluded that the Board did not expressly find that appellant affirmatively proved the existence of any right-of-way for a period of five years before exiting the public domain. See id. at 238. Instead, the Court held:
See id. Ultimately, the Court concluded that no evidence existed to support a finding that the use of the roads in question was "public use" as opposed to a private easement during the time period necessary to establish an R.S. 2477 right-of-way. See id.
See id. (internal citations omitted).
The factual and legal backdrops within these cases similarly reflect the type of use that likely occurred in any five-year period from 1884 until 1906 with the Eagle Creek Road. Because land grants are construed favorably to the Government (see supra), and because the record does not support a finding that Eagle Creek Road was regularly used by the public for five years between 1884 and 1893, Plaintiffs' Motion for Partial Summary Judgment is denied in this respect. Correspondingly, Defendants' Motion for Summary Judgment is granted in this respect.
Plaintiffs contend that the Shoshone County Board of Commissioners formally declared Eagle Creek Road (or at least a portion of Eagle Creek Road) a county road, thus establishing it as a highway
While it is true that the later-in-time designation of the "trail" to Doctorville as a county road references the road from Eagle City to Ellensburg as a sort of geographical waypoint, that alone does not mean that the road from Eagle City to Ellensburg (or, even, from Eagle City to the beginning of the trail to Doctorville) must have been officially designated as a county road following the above-referenced petitions.
First, there is no specific evidence that any portion of the route between Eagle City and Ellensburg was ever declared to be a county road. Yet, the Shoshone County Board of Commissioners obviously understood that such roads came into existence through formal decision-making processes (as evidenced, for example, by the Doctorville trail's recorded designation, and many others like it).
Second, a mere reference to a road in the Commission's minutes (in this case, "the Ellensburg and Eagle [City] road about two miles above Eagle [City]" (see supra)), without more, does not then transmute such a road (which indisputably existed at that time, though not necessarily as a county road) into a county road. See, e.g., A Map of the Coeur d'Alene Region, 1884 (Defs.' Ex. 9) (already identifying a trail/route/road along East Fork of Eagle Creek well before Ellensburg residents' petitions); Map of the Coeur d'Alene Mines and Vicinity, Idaho Territory, 1884 (Defs.' Ex. 14) (same). The fact that
Third, and even more compelling, is the fact that the Shoshone County Board of Commissioners twice took action only a few decades later, purporting to make particular sections of the Eagle Creek Road a county road. See Defs.' MSJ, p. 38 (Docket No. 40). For example, on July 9, 1907, the minute notes read:
Defs.' Ex. 76; see also Defs.' Ex. 79 (July 12, 1907 minute notes stating: "In the matter of the improvement of the county road on Eagle and East Eagle Creeks: It was ordered that the Road Overseer of Road District No. 1 be, and he is hereby authorized to expend, under his immediate supervision, the sum of One Thousand Dollars for labor and necessary improvements on said road."). Then, on October 12, 1911, the minute notes read:
Defs.' Ex. 80; see also Defs.' Ex. 81 (October 23, 1911 minute notes authorizing removal of timber and undergrowth along several "country roads," including "that portion of the Eagle Creek county wagon road extending from a point near the Robinson Ranch at the forks of East and West Eagle Creeks to a point on East Eagle Creek near the mouth of Tributary Creek.").
Plaintiffs also argue, again, that the April 1906 petition made to the County Commission for funds to improve the "wagon road" from Eagle City to Smith & Dunlap's placer camp, as well as the fact of
Other evidence in the record connected to that 1906 petition also illustrates the unadopted status of the Eagle Creek Road. In 1905, the Idaho Legislature created the "Idaho Intermountain Wagon Road Commission," and issued bonds in the amount of $50,000 to be used by the Wagon Road Commission in building roads and trails "that will make the developed and undeveloped mining sections of Idaho reasonably accessible for the purpose of prospecting and mining development." See "Report of the Idaho Intermountain Wagon Road Commission," attached as Defs.' Ex. 71. At its first meeting, the Commission decided that "no State money [would] be expended for building wagon roads into the interior of Idaho, unless a like amount of money be appropriated by the Counties through which these roads pass, or by individuals to be benefitted by these roads." Id. At least two roads in Shoshone County were the subject of requests made to the Wagon Road Commission. The first, a request made in the Spring of 1906 by the Pennsylvania Coeur d'Alene Mining Company, asked the Wagon Road Commission to pay $350.00 as one half "of the cost of the construction of a wagon road from the placer camp of Messrs. Smith & Dunlap on the East Fork of Eagle Creek in Shoshone County, Idaho to the mouth of Tributary Creek being a tributary of the said East Fork of Eagle Creek, the said road being about one and one half miles in length." See Defs.' Ex. 32. On April 10, 1906, two petitions were presented to the Shoshone County Commission asking "for an appropriation of funds to assist in the improvement" and "for the betterment of" the road from the old town of Eagle to the Smith and Dunlap placer camp, and for "the creation of a new wagon road from the camp of Smith and Dunlap ... to the mouth of Tributary creek. The County Commission, on that same April 10, 1906 date, "examined and tabled" the two petitions. See Defs.' Ex. 67.
Subsequently, by letter dated May 10, 1906, the Wagon Road Commission turned down the request for monies to aid in the construction of a wagon road from the Smith and Dunlap placer camp to Tributary Creek. "This petition was not allowed for two reasons," said the Commission: "one being that at this time we could not undertake any new work that had not been planned and laid out before, and another reason was that the construction of this road seemed to be largely for the benefit of one mine." See supra. The Wagon Road Commission letter ended with a request that the County Commissioners be notified of the decision. See Defs.' Ex. 33.
The Shoshone County Commission took no further affirmative action on the two petitions that it had "examined and tabled" prior to the Wagon Road Commission's decision. The Court gleans from those facts that the County Commission intended to "wait and see" whether the Wagon Road Commission would contribute monies to pay for the new road from the Smith and Dunlap placer camp to Tributary Creek. When the Wagon Road Commission said "no," there was no further action by the County Commission and the petitions remained tabled.
This scenario is confirmed by the fact that the Wagon Road Commission did fund a third request for a new road in Shoshone County in the same year, with the County splitting the cost. The year-end report issued by the Wagon Road
Id. (emphasis added). In other words, for whatever reason, during the relevant time period in the 1880's, 1890's, and the first part of the 1900's, Shoshone County was not willing to either formally declare Eagle Creek Road as a county road, or to spend money specifically upon the road. Even when the possible opportunity arose to share the cost of constructing even just a short distance of wagon road to Tributary Creek, the County Commission only considered it long enough to be told that the Wagon Road Commission would not pay half of those costs, and then the County Commission again left the Eagle Creek Road behind. There apparently was not even a further consideration by the County Commission as to whether there was good reason that the road should be improved to the Smith and Dunlap placer claim, and a real road built beyond that point to Tributary Creek, regardless of whether the Wagon Road Commission would help with the cost. Likely, the Commissioners (who were even closer to the circumstances than the Wagon Road Commissioners) also thought that any improvements or new road construction would be "largely for the benefit of one mine." Defs.' Ex. 33.
Because land grants are construed favorably to the Government, and because the record does not support a finding that Eagle Creek Road, or any portions thereof, was declared a county road by the Shoshone County Board of Commissioners before President Roosevelt's forest reservation in 1906, Plaintiffs' Motion for Partial Summary Judgment is denied in this respect. Correspondingly, Defendants' Motion for Summary Judgment is granted in this respect.
Plaintiffs additionally argue that Eagle Creek Road represents an R.S. 2477 right-of-way because it was recognized by a positive act of acceptance by the Shoshone County Commission in 2009. Fred W. Brackebusch filed a petition on May 28, 2009 requesting that the Commission "validate" Eagle Creek Road as a public road (see Pls.' Ex. 107). Afterwards, the Shoshone County Board of Commissioners adopted a "Resolution Asserting Validation of Right-Of-Way as an R.S. 2477" on September 15, 2009 (Pls. Ex. 114). See Pls.' MSJ, pp. 17-19 (Docket No. 32, Att. 1). The Commissioners adopted verbatim the report prepared by a local historian, hired by Fred W. Brackebusch, as their findings in support of the Resolution.
According to Plaintiffs, there was no challenge to the 2009 validation efforts surrounding Eagle Creek Road and, therefore, Defendants are now precluded from challenging the validity of the subsequently deemed right-of-way. See id. Alternatively, Plaintiffs argue that the 2009 validation was performed pursuant to Idaho state law and should be recognized accordingly. See id. The Court disagrees.
"As a limited waiver of sovereign immunity, the Quiet Title Act is the sole avenue by which [Shoshone County] can seek to prove the existence of its R.S. 2477 rights in court." The Wilderness Soc'y v. Kane County, 581 F.3d 1198, 1219 (10th Cir.2009); see also Modern, Inc. v. Florida, Dept. of Transp., 381 F.Supp.2d 1331, 1351 (M.D.Fla.2004) ("The Quiet Title Act waives sovereign immunity to suits that seek `to adjudicate a disputed title to real property in which the United States claims an interest....' This statute provides the only means by which to challenge federal ownership of real property.") (quoting 28 U.S.C. § 2409a(a)). Adopting Plaintiffs' arguments — in essence, pointing to the Shoshone County Board of Commissioners' recent validation (notwithstanding the United States' alleged failure to object to same) — would amount to an end-run around the Quiet Title Act. Simply put, the Court cannot ignore the Quiet Title Act in favor of state law when such state law arguably conflicts with the federal law mandates.
Here, the Quiet Title Act is the mechanism for the parties to resolve their dispute concerning whether Eagle Creek Road qualifies as an R.S. 2477 right-of-way. As such, Plaintiffs' Motion for Partial Summary Judgment is denied in this respect.
Based upon the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiffs' Motion for Partial Summary Judgment (Docket No. 32) is DENIED; and
2. Defendants' Motion for Summary Judgment (Docket No. 36) is GRANTED.
Sierra Club v. Hodel, 848 F.2d 1068, 1080 (10th Cir.1988) (overruled, in part, on other grounds); but cf. Defs.' MSJ, pp. 25-26 (Docket No. 40) (discussing U.S. Supreme Court's case in context of Act of July 26, 1866's section 9).
