Humboldt County v. U.S.

• Decision Date: 24 August 1982
• Docket Number: No. 80-4419,80-4419
• Citation: 684 F.2d 1276
• Parties: , 12 Envtl. L. Rep. 21,121 HUMBOLDT COUNTY, a Political Subdivision of the State of Nevada, Plaintiff-Appellant, v. UNITED STATES of America; Department of Interior; Bureau of Land Management; Secretary of the Department of Interior; Winnemucca District Manager, Bureau of Land Management; State Director-Nevada, Bureau of Land Management; Director Bureau of Land Management; and Chief, Division of Resources, Bureau of Land Management, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1276

684 F.2d 1276

18 ERC 1273, 12 Envtl. L. Rep. 21,121

HUMBOLDT COUNTY, a Political Subdivision of the State of

Nevada, Plaintiff-Appellant, v. UNITED STATES of America; Department of Interior; Bureau of

Land Management; Secretary of the Department of Interior;

Winnemucca District Manager, Bureau of Land Management;

State Director-Nevada, Bureau of Land Management; Director

Bureau of Land Management; and Chief, Division of Resources,

Bureau of Land Management, Defendants-Appellees.

No. 80-4419.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 13, 1982.

Decided Aug. 24, 1982.

Julian C. Smith, Jr., Carson City, Nev., argued for Humboldt County; Smith & Gamble, Ltd., Carson City, Nev., on brief.

James G. Watt, Mountain States Legal Foundation, Denver, Colo., on brief, for amicus curiae.

James C. Kilbourn, Dept. of Justice, Washington, D. C., argued for defendants-appellees; Shirley Smith, Asst. U. S. Atty., Reno, Nev., Dirk D. Snel, Atty., Washington, D. C., on brief.

Appeal from the United States District Court for the District of Nevada.

Before BROWNING, Chief Judge; SKOPIL, and NORRIS, Circuit Judges.

SKOPIL, Circuit Judge:

INTRODUCTION

Humboldt County appeals the district court's decision upholding the Bureau of Land Management's ("BLM") closure of two roads in the Blue Lake area of the county to vehicular use. ¹ The County argues that: (1) it holds rights of way in the two roads under Section 8 of the Act of July 26, 1866, 43 U.S.C. § 932 (Revised Statutes 2477), (2) the BLM failed to comply with applicable federal law in closing the roads, and (3) the BLM arbitrarily denied its application for conveyance of 640 acres surrounding Blue Lake, including the two roads, for recreational and public purposes. We affirm.

FACTS

Blue Lake is a natural scenic area in northwestern Nevada consisting of approximately 16,000 acres of BLM-administered public lands. Prior to the construction of the roads in question, Blue Lake was accessible only on foot or by horseback.

In 1952 the County proposed that a road be built through Theodore Basin to Blue Lake. The BLM prepared a Cooperative Agreement, which provided that the county The second road at issue, also bulldozed but unpaved, runs from Onion Valley Reservoir to Blue Lake. The record does not clearly indicate by whom or when that road was built, other than that it was built between 1952 and 1975.

                would pay approximately 80% of the cost of construction and the BLM the remaining 20% and that the United States would retain title to the road.  2  Although the County did not execute the Agreement, the BLM built the road using its own equipment and employees and the County paid approximately the amount required by the Agreement.  The Theodore Basin road is bulldozed but unpaved
                

In 1971-72 the BLM held public meetings regarding the proposed classification of the Blue Lake area as a primitive area. It took no action on the classification. In 1974 the BLM held further hearings, but again did not classify the area as primitive. The BLM blockaded the Theodore Basin road in 1974 to prevent further erosion, but that blockade was ineffective. In 1977 the BLM closed the Blue Lake area, including the portions of the roads nearest the lake to vehicular use "to protect the natural values of the area until a wilderness review can be completed" and to "provide for better resource management in protecting and preserving the unique natural values of the area." See 42 Fed.Reg. 29059 (June 7, 1977) (effective July 7, 1977).

In March 1978 the County applied to the BLM pursuant to the Recreational and Public Purposes Act, 43 U.S.C. §§ 869 et seq., for conveyance of 640 acres surrounding Blue Lake, including the two closed roads, for the creation of a county park. The BLM returned the application because the County had failed to provide sufficient copies or pay the required filing fee. The County did not resubmit its application. In February 1979 the County passed a resolution declaring both roads to be public roads and claiming rights of way in them under 43 U.S.C. § 932. In March 1979 the County sued the BLM to require the reopening of the roads or the conveyance of the 640 acres.

The district court held that the County had no rights under section 932 because that section does not apply to highways that provide access to recreational areas. The court also found that the BLM had complied with federal law in closing the roads. Finally, it denied the County's request for a writ of mandamus ordering the BLM to open the roads and convey to the County the 640 acres surrounding the lake on the ground that the County had failed to exhaust its administrative remedies.

DISCUSSION

I. The County's Rights of Way

A. Timeliness

After this case was submitted, amicus Sierra Club raised the question whether the County was barred from claiming a right of way in the Theodore Basin road under 28 U.S.C. § 2409a(f). The parties filed supplemental briefs on this issue.

The United States has waived sovereign immunity in any action "to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights." 28 U.S.C. § 2409a(a). ³ However, any such action must be commenced within 12 years of the date upon which it accrued, and it "shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States." 28 U.S.C. § 2409a(f). This 12-year limitation is jurisdictional and therefore cannot be waived and may be raised at any time. Park County, Montana v. United States, 626 F.2d 718, 720 (9th Cir. 1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 923, 66 L.Ed.2d 841 (1981).

The Government argues that the Cooperative Agreement, by retaining title to the Theodore Basin road in the United States, gave notice to the County in 1952 of the United States' claim in that road. It concedes that the County did not have notice of the Government's claim in the Onion Valley Reservoir road until the 1970's, and that jurisdiction over the County's claim in that road is therefore proper.

The County raises two arguments with respect to the timeliness of its claim in the Theodore Basin road. First, it argues that the district court's finding that the Cooperative Agreement was presented to county officials is clearly erroneous. Second, it argues that, even if it received notice of the government's claim in 1952, the public did not. The County would have this court hear its claim as it is brought on behalf of the public, even if not as brought on its own behalf.

The County's first argument is without merit. The County paid approximately the amount called for by the Cooperative Agreement for the construction of the Theodore Basin road. Moreover, Mr. Fulwider, the BLM District Manager who signed the Agreement on behalf of the Government, testified that, although he delegated to a Mr. Perrson the job of presenting it to the County, he was sure that it was presented. Mr. Perrson was a county official appointed by the Humboldt County Fish and Game Board as its wildlife and recreation representative to a BLM advisory board. Thus, the court's finding that the Agreement was presented to county officials is not clearly erroneous. The County's second claim also lacks merit. Nothing in section 2409a(f) requires that notice be given to the public as well as to the County, the plaintiff in this case. The County's claim of a right of way in the Theodore Basin road is barred by the statute of limitations, and the district court was required to dismiss that portion of the County's appeal for lack of jurisdiction.

B. Rights of way under section 932

The statute at issue in this case provides that: "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." 43 U.S.C. § 932 (Revised Statutes § 2477). ⁴ In interpreting this grant of rights in federal land, we must consider the condition of the country at the time of the grant, the declared purpose of the statute, and the other parts of the statute. Leo Sheep Co. v. United States, 440 U.S. 668, 682, 99 S.Ct. 1403, 1411, 59 L.Ed.2d 677 (1979). Any doubt as to the extent of the grant must be resolved in the government's favor. Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 617, 98 S.Ct. 2002, 2009, 56 L.Ed.2d 570 (1978).

The crucial language of section 932 for this case is the phrase "public lands." ⁵ Such lands are those subject to sale or other disposal under general laws, excluding those to which any claims or rights of others have attached. Columbia Basin Land Protection Ass'n v. Schlesinger, 643 F.2d 585, 602 (9th Cir. 1981). Thus, unless the land surrounding the Onion Valley Reservoir road was public land when the road was built, the County could not have acquired any right in it under section 932.

In 1935 the Secretary of the Interior, acting under the Taylor Grazing Act of 1934, established a grazing district that included the Blue Lake area. See note 2, supra. The establishment of this district had the effect of withdrawing the Blue Lake area "from all forms of entry of settlement." 43 U.S.C. § 315. However, the Taylor Grazing Act also provided that: "Nothing contained in this chapter shall restrict the acquisition, granting or use of ... rights-of-way within grazing districts under existing law...." 43 U.S.C. § 315e. There are no cases interpreting this subsection of the Act. Therefore, it is unclear whether the establishment by the Secretary of a grazing district encompassing the Blue Lake area precluded the County from acquiring a right of way in the Onion Valley Reservoir road under section 932.

In 1934 the President withdrew all of the unappropriated and unreserved public land in several states, including Nevada, from "settlement, location, sale or entry" pending a determination of the best use of the land. Executive Order No. 6910, ...