Cnty. of Shoshone v. United States

• Decision Date: 21 November 2012
• Docket Number: Case No. CV 09–505–REB.
• Parties: COUNTY OF SHOSHONE OF the State of IDAHO; George E. Stephenson; New Jersey Mining Company, Plaintiffs v. UNITED STATES of America; Secretary of the United States Department of Agriculture; Chief of the United States Forest Service; Regional Forester of the Northern Region of the United States Forest Service; Forest Supervisor for the Idaho Panhandle National Forests of the United States Forest Service; District Ranger for the Coeur d'Alene River Ranger District of the United States Forest Service, Defendants.
• Court: U.S. District Court — District of Idaho

912 F.Supp.2d 912

COUNTY OF SHOSHONE OF the State of IDAHO; George E. Stephenson; New Jersey Mining Company, Plaintiffs

v.UNITED STATES of America; Secretary of the United States Department of Agriculture; Chief of the United States Forest Service; Regional Forester of the Northern Region of the United States Forest Service; Forest Supervisor for the Idaho Panhandle National Forests of the United States Forest Service; District Ranger for the Coeur d'Alene River Ranger District of the United States Forest Service, Defendants.

Case No. CV 09–505–REB.

United States District Court,

D. Idaho.

Nov. 21, 2012.

Keisha L. Oxendine, Osburn, ID, W. Alan Schroeder, Schroeder & Lezamiz Law Offices, LLP, Boise, ID, for Plaintiffs.

David L. Negri, U.S. Dept. of Justice, Warren S. Derbidge, U.S. Attorney's Office, Boise, ID, for Defendants.

MEMORANDUM DECISION AND ORDER RE:

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT (Docket No. 32)

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Docket No. 36)

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:

I. INTRODUCTION

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 at43 U.S.C. § 932, repealed by Federal Land Policy Management Act of 1976 (“FLPMA”), Pub.L. No. 94–579 § 706(a), 90 Stat. 2743. Commonly called “R.S. 2477” after its residing place in the 1866 volume of Revised Statutes, this offer of a right-of-way over unreserved federal land remained in effect for 110 years, and “most of the transportation routes of the West were established under its authority.” Southern Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 740–41 (10th Cir.2005) (“During that time, congressional policy promoted the development of the unreserved public lands and their passage into private productive hands; R.S. 2477 rights-of-way were an integral part of the congressional pro-development lands policy.”).

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. See43 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 that became the Coeur d'Alene Forest Reserve)). See e.g., Adams, 3 F.3d at 1258 (“To establish a[n] [R.S. 2477 right-of-way], the Adamses must show that the road in question was built before the surrounding land lost its public character in 1906.”) (citing Humboldt Cnty. v. United States, 684 F.2d 1276, 1281 (9th Cir.1982)).

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.

II. GENERAL BACKGROUND

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.¹See Pls.' SOF, p. 2, ¶¶ 5 (Docket No. 32, Att. 2); see also Defs.' SOF, p. 1, ¶¶ 1–2 (Docket No. 37); Pls.' Resp. to SOF, pp. 1–2, ¶¶ 1–2 (Docket No. 50, Att. 1).

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...