Montana Wilderness Ass'n v. United States

• Decision Date: 11 September 1980
• Docket Number: No. 79-29-Bu.,79-29-Bu.
• Citation: 496 F. Supp. 880
• Court: U.S. District Court — District of Montana
• Parties: MONTANA WILDERNESS ASSOCIATION, Nine Quarter Circle Ranch, and the Wilderness Society, Plaintiffs, v. UNITED STATES FOREST SERVICE: John McGuire, its chief; Lewis Hawkes, Gallatin National Forest Supervisor; United States Fish and Wildlife Service, Harry Willoughby, its regional director; Burlington Northern, Inc., a Delaware Corporation; Bob Bergland, Secretary of Agriculture, Defendants.

496 F. Supp. 880

MONTANA WILDERNESS ASSOCIATION, Nine Quarter Circle Ranch, and the Wilderness Society, Plaintiffs, v. UNITED STATES FOREST SERVICE: John McGuire, its chief; Lewis Hawkes, Gallatin National Forest Supervisor; United States Fish and Wildlife Service, Harry Willoughby, its regional director; Burlington Northern, Inc., a Delaware Corporation; Bob Bergland, Secretary of Agriculture, Defendants.

No. 79-29-Bu.

United States District Court, D. Montana, Butte Division.

September 11, 1980.

James H. Goetz, Bozeman, Mont., for plaintiffs.

James G. Watt; Michael H. Hyer, Denver, Colo., and J. C. Garlington of Garlington, Lohn & Robinson, Missoula, Mont., for Mountain States Legal Foundation, appearing as amicus curiae.

Kurt W. Kroschel and K. Kent Koolen, Billings, Mont., for Burlington Northern.

Rick Anderson, Asst. U. S. Atty., Butte, Mont., and Dorothy Burakreis & Peter Coppleman, Dept. of Justice, Washington, D. C., Land & Natural Resources, Washington, D. C., for all United States defendants.

John L. Peterson, Butte, Mont., and Shea & Gardner, Washington, and Richard S. Wasserstrom, Washington, D. C., Intervenor as a party defendant for Nat. Forest Products Ass'n.

MEMORANDUM OPINION

WILLIAM D. MURRAY, Senior District Judge.

I. INTRODUCTION

Plaintiffs bring this action against several federal defendants and Burlington Northern, Inc., seeking a preliminary injunction and moving for partial summary judgment. The court denied the motion for preliminary injunction and will issue findings of fact and conclusions of law in a separate order.

This memorandum opinion is to address those legal issues raised by the various motions and cross-motions for partial summary judgment. Prior to addressing those issues, a brief explanation of the controversy will be undertaken, followed by a historical discussion and a synopsis of the instant litigation.

A. Factual Background

Defendant Burlington Northern owns property in the Buck Creek and Yellow Mules drainages within the confines of the highly scenic Gallatin National Forest southwest of Bozeman, Montana, and plans to conduct logging activities on that property. In order to reach its property and carry out the proposed logging Burlington Northern must construct a road across National Forest lands.

The Buck Creek and Yellow Mules drainages are within the Taylor-Hilgard Wilderness Study Area which has been set aside by Congress under the Montana Wilderness Study Act of 1977, P.L. 95-150, 91 Stat. 1243, for further study and Congressional consideration regarding its potential for wilderness designation. Burlington Northern's plans to log portions of its property within the boundaries of the area would disqualify that area from possible wilderness designation. For that reason, among others, plaintiffs seek to prevent construction of the proposed logging road.

The national forest sections over which the road is to be constructed are intermingled with Burlington Northern sections in what is generally known as a "checkerboard" fashion. This pattern of ownership resulted from the grant of alternate sections by the United States to Burlington Northern's corporate predecessor, Northern Pacific Railroad Co., under the Northern Pacific land grants of 1864. A brief discussion of the history of the Northern Pacific land grants and land grants to the railroads in general is undertaken below.¹

B. Historical Background

On July 2, 1864, an act creating the Northern Pacific Railroad Company and authorizing that company to construct a railroad from Lake Superior to Puget Sound was enacted. 13 Stat. 365. That Act was the outgrowth of a tremendous desire on behalf of the federal government that the West be settled. Railroads through the unsettled territories were the means to accomplish this goal. Yet private investors were unwilling to build the railroads without substantial governmental inducement. Inducement came in the form of an enormous grant of public land to the Northern Pacific Railroad Company, which was typical of other Congressional land-grant subsidies to railroads in that era. See, Leo Sheep Co. v. United States, 440 U.S. 668, 99 S.Ct. 1403, 59 L.Ed.2d 677 (1979).

Under the terms of the 1864 Act, Northern Pacific was granted every alternate section of public land, not mineral, to the amount of twenty sections per mile on each side of the line through territories and ten sections per mile through the states. In case any of these sections had been occupied by homesteaders or otherwise disposed of at the time of definite location of the railroad, Northern Pacific was entitled to select, in lieu thereof, alternate odd-numbered sections not more than ten miles beyond the limits of the grant. In lieu of mineral lands, the company was given the right to select a like quantity of agricultural land "nearest to the line of such road and within fifty miles thereof." 13 Stat. 365, Sec. 3.²

The checkerboard ownership pattern came about as a result of opposition to the railroad land grants from strict constructionists who believed that the Constitution provided no authority for the direct use of government funds for internal improvements, such as railroads. Leo Sheep, supra, 671-674, 99 S.Ct. 1405-1407. The opponents were ultimately persuaded, however, by the argument that construction of the railroads and the resulting development of the alternate sections granted to the railroads would lead to an appreciation in value of the retained federal lands. It was claimed, therefore, that the land grants were not a direct federal subsidy but rather were a means of increasing federal revenues from the sale of the retained lands. Thus, the checkerboard ownership pattern, now pervasive in the West, was created.

C. The Instant Litigation

In order to construct the proposed road across federal land Burlington Northern applied for and was granted a special use permit by the Forest Service. Following administrative appeal of the decision to issue the permit, plaintiffs filed the instant lawsuit on May 9, 1979, seeking a temporary restraining order and preliminary injunction against construction of the road by Burlington Northern. This court granted the temporary restraining order and scheduled a hearing on the motion for preliminary injunction for September 4, 1979.

In the interim, however, the Forest Service, at the request of the Department of Justice, suspended the permit and the hearing was vacated. Thereafter, the Secretary of Agriculture requested a formal opinion from the Attorney General to resolve the many questions which had arisen regarding the access rights of landowners whose land, like Burlington Northern's, is completely surrounded by property owned by the United States.

On June 23, 1980, the Attorney General issued his formal Opinion responding to the questions posed by the Secretary of Agriculture. In that Opinion, the Attorney General concluded that 16 U.S.C. § 478 upon which the Forest Service had previously relied to find a right of access did not provide such a right. He further stated that "a right of access may be implied from the terms of the federal grant only if Congress intended to grant the right." Op. Atty. Gen. at 1-2 (June 23, 1980).

The Department of Agriculture thereafter determined that Burlington Northern has a right of reasonable access implicit in the 1864 land grant and directed the Forest Service to reinstate Burlington Northern's permit, which was done July 30, 1980. Plaintiffs then filed motions for a temporary restraining order, preliminary injunction and motions for partial summary judgment. The court granted the temporary restraining order, but denied the motion for preliminary injunction. This opinion deals with plaintiffs' motion for partial summary judgment and the cross-motions of both federal defendants and Burlington Northern for partial summary judgment.

II. BURLINGTON NORTHERN HAS ACCESS TO ITS PROPERTY BY WAY OF NECESSITY

Defendant Burlington Northern contends that it has an easement by necessity across the federal lands to reach its own, and has moved for summary judgment on that issue. The motion is resisted by federal defendants and plaintiff, both of whom rely to a great extent on Attorney General Civiletti's Opinion of June 23, 1980. In that opinion the Attorney General addressed the precise issue here presented and concluded that

"the common law doctrine of easement by necessity does not apply to land owned by the federal government." Op. Atty. Gen. at 2 (June 23, 1980).

While it is true that opinions of the Attorney General are given great weight, an Attorney General's opinion is not the judgment of a court of law and is not binding on this court. Pueblo of Taos v. Andrus, 475 F.Supp. 359, 365, n. 4 (D.D.C. 1979). In this instance his conclusion as to the doctrine of easements by necessity must be rejected and Burlington Northern's motion for summary judgment granted.

Plaintiffs contend that the recent United States Supreme Court decision in Leo Sheep Co. v. United States, 440 U.S. 668, 99 S.Ct. 1403, 59 L.Ed.2d 677 (1979) controls this court's decision. The federal defendants and Burlington Northern, while conceding the applicability of Leo Sheep, persuasively argue that it is not controlling. A review of the decision is necessary.

Petitioners were livestock companies holding certain odd-numbered sections of land in Wyoming as successors in fee of the Union Pacific Railroad, which had received the land under the Union Pacific Act of 1862, 12 Stat. 489. The government retained the even-numbered sections, creating a checkerboard ownership pattern. The issue presented was whether the United States held an implied easement to build a road across the private land to provide access to a public reservoir. The landowners refused to allow the construction.

Prior to reaching what it considered as the critical issue in the case-whether the government had an implied easement based on the original land grant-the Court...