Butchart v. Baker County

• Decision Date: 11 July 2007
• Docket Number: 03827; A126840.
• Citation: 166 P.3d 537,214 Or. App. 61
• Parties: Frank BUTCHART, Plaintiff-Appellant, v. BAKER COUNTY, a political subdivision of the State of Oregon, Defendant-Respondent.
• Court: Oregon Court of Appeals

166 P.3d 537

214 Or. App. 61

Frank BUTCHART, Plaintiff-Appellant, v. BAKER COUNTY, a political subdivision of the State of Oregon, Defendant-Respondent.

03827; A126840.

Court of Appeals of Oregon.

Argued and Submitted January 9, 2007.

Decided July 11, 2007.

Ridgway K. Foley, Jr., Portland, argued the cause for appellant. With him on the briefs was Greene & Markley, P.C.

Jeffrey M. Batchelor, Portland, argued the cause for respondent. With him on the brief were Markowitz, Herbold, Glade & Mehlhaf, P.C., and Dan Van Thiel.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

HASELTON, P.J.

Plaintiff appeals from a judgment, following a trial to the court, rejecting his claims for declaratory and injunctive relief and inverse condemnation, all arising from a dispute regarding the status of a road crossing a portion of his property. For the reasons set forth below, we conclude that, under ORS 34.102(2),¹ the trial court lacked subject matter jurisdiction over plaintiff's claims for declaratory and injunctive relief; consequently, we remand to the trial court to vacate the judgment with respect to those two claims and to dismiss those claims for lack of jurisdiction. We further determine that the trial court had jurisdiction over the inverse condemnation claim and affirm the denial of relief on that claim.

Before addressing the jurisdictional questions, which predominate, we summarize the circumstances of the dispute and the facts pertinent to our analysis of jurisdiction. Plaintiff owns property in rural Baker County. The central substantive dispute in this case is whether the Connor Creek Road, which crosses a portion of plaintiff's property, is a so-called "RS 2477 road" and, thus, is a public road, and not a private road.

In 1866, Congress passed a law, commonly referred to as "RS 2477," that granted "the 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 Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 USC § 932, repealed by Federal Land Policy Management Act of 1976, Pub. L. No. 94-579 § 706(a), 90 Stat. 2743 (1976).² Plaintiff owns several parcels of land that were granted to his predecessors in interest pursuant to a federal mining patent in 1883. It is undisputed that a significant amount of mining occurred on the property in the mid-to-late nineteenth century and a small mining community existed there. However, the parties vehemently dispute whether the Connor Creek Road, which today crosses plaintiff's property, existed "over public lands" before the mining patent was granted to plaintiff's predecessor in interest. That is, if the road existed prior to the mining patent, it is an "RS 2477 road," and the road does not belong to plaintiff.

In April 2000, the Baker County Board of Commissioners (the board) passed a resolution establishing a county-wide policy regarding RS 2477 rights-of-way, declaring that Baker County had accepted the grant offered under RS 2477 by the federal government and that it "is the owner of, or has a perpetual easement in favor of the public over, highway rights-of-way accepted pursuant to grant offered under RS 2477." The resolution identified certain RS 2477 rights-of-way but went on to note that additional RS 2477 rights-of-way would be recognized "as evidence establishing the perfection of any RS 2477 right of way becomes available." Baker County Resolution 2000-1026.

After disputes arose about plaintiff's tenant excluding the public from Connor Creek Road, the board issued a notice of public hearing "to determine whether to recognize Connor Creek Road as an RS 2477 right-of-way." That notice identified the date and place of the hearing, and solicited public input as well as documentation about the historic use of the road.

The public hearing was held on February 20, 2002. At that hearing, the county road-master told the board that mail had been delivered on horseback to the area of Connor Creek as early as 1862, that Connor Creek Road was in place in 1877, and that a map showed a road in the same general vicinity in 1882. A field manager for the Bureau of Land Management spoke as well, stating that the road had been in use from 1863.³ The record of that hearing does not indicate whether or not the documentation to which those witnesses referred was provided to the board.

Various interested community members — including plaintiff and his tenant — also spoke at the February 20, 2002, public meeting. Plaintiff told the board that the current road was not in the same area as roads shown on the early maps. Another witness stated that he had used the road while growing up and that the current road might not be where the old road had been located. The president of the Eastern Oregon Sportsman's Association indicated that she had researched the question and believed that Connor Creek Road followed an Indian trail route that later became a stagecoach route. Most of the public comments, however, concerned incidents involving the tenant's exclusion of the public from the road.

At the end of the public hearing, the board voted to recognize Connor Creek Road as an RS 2477 road. The board convened again on March 6, 2002, and passed a resolution formally amending the April 2000 resolution, to add Connor Creek Road to the list of recognized RS 2477 rights-of-way.

In January 2004, plaintiff brought this action, alleging claims against the county for declaratory and injunctive relief and for inverse condemnation. In his first claim, for declaratory relief, plaintiff alleged that the portion of Connor Creek Road that crosses his property was built by his predecessors in interest after the issuance of the mining patent—and that there has never been an RS 2477 road legally located on his land. Consequently, plaintiff sought declarations that (1) the portion of Connor Creek Road located on his property is not an RS 2477 road because it was not located on the property at the time (1883) that his predecessors in interest acquired the property by virtue of the mining patent, (2) plaintiff can control access to the road, and (3) the actions taken by the board on February 20, 2002, and March 6, 2002, to declare the road to be an RS 2477 road, are invalid.

In his second claim for relief, plaintiff sought an injunction to prevent county employees from tampering with gates across Connor Creek Road and related signage that plaintiff intended to post to exclude the public from Connor Creek Road, should he prevail on the declaratory judgment claim.⁴

In his third claim, for inverse condemnation, plaintiff alleged that the actions taken by the board in 2002 effected a taking of his property for public purposes without payment of just compensation, in violation of Article I, section 18, of the Oregon Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. On that claim, plaintiff sought damages of $150,000.

In its answer, defendant asserted that the disputed road was an RS 2477 right-of-way. Defendant also brought a counterclaim for injunctive relief.⁵

The case was tried to the court, which issued a memorandum opinion, rendering extensive factual findings. Based on those findings, the court concluded that, because Connor Creek Road had been "used by the public for mining, timber and grazing purposes and predated the patented [mining] claims," the county properly determined RS 2477 to be a county road. Consequently, the court denied plaintiff relief on all claims.

This appeal ensued. After briefing and oral argument, we sua sponte raised the jurisdictional question whether, under the principles pertaining to "writ of review exclusivity," ORS 34.102(2), the trial court lacked subject matter jurisdiction to adjudicate some or all of plaintiff's claims.⁶ In particular, we directed the parties to submit additional memoranda addressing whether plaintiff was jurisdictionally precluded from obtaining relief of any sort because he did not seek a writ of review, pursuant to ORS 34.010 to 34.100, of the board's 2002 decision and determination of the status of Connor Creek Road. See generally State ex rel City of Powers v. Coos County Airport, 201 Or. App. 222, 230, 119 P.3d 225 (2005), rev. den., 341 Or. 197, 140 P.3d 580 (2006) ("[W]hen the writ of review is available, it is the exclusive remedy[.]").

Predictably, plaintiff contended that none of the claims is barred by the exclusivity provision of ORS 34.102(2). Conversely — and equally predictably — defendant asserted that all claims are barred. As explained below, we conclude that the correct resolution lies between those absolute positions: Although the declaratory judgment and related injunctive relief claims are both barred, the inverse condemnation claim is not.

ORS 34.040(1) provides that a court may issue a writ of review in cases in which a plaintiff has been injured by an entity such as a county in its exercise of "quasi-judicial functions." If a writ of review is available, then (with exceptions not pertinent here)

"the decisions of the governing body of a municipal corporation acting in a * * * quasi-judicial capacity and made in the transaction of municipal corporation business shall be reviewed only as provided in ORS 34.010 to 34.100, and not otherwise."

ORS 34.102(2).

Strawberry Hill 4 Wheelers v. Benton Co. Bd. of Comm., 287 Or. 591, 601 P.2d 769 (1979), is the keystone of the jurisdictional inquiry. In Strawberry Hill 4 Wheelers, the defendant county made a decision to vacate a public road. The plaintiffs, who had appeared at a public hearing on the matter and presented testimony in opposition to vacating the road, sought a writ of review from the county's adverse decision. Id. at 593, 601 P.2d 769. The trial court concluded that the county's decision was not "quasi-judicial" and, thus, writ of review was not available.

The Supreme Court reversed, holding that the county's decision was "quasi-judicial" in...