North Dakota v. United States, Case Nos. 1:12–CV–125

Decision Date25 November 2014
Docket Number1:12–CV–102.,Case Nos. 1:12–CV–125
Citation64 F.Supp.3d 1314
PartiesNORTH DAKOTA, Plaintiff, v. UNITED STATES of America, Defendant. Billings County, et. al., Plaintiffs, v. United States of America, Defendant.
CourtU.S. District Court — District of North Dakota

64 F.Supp.3d 1314

NORTH DAKOTA, Plaintiff
v.
UNITED STATES of America, Defendant.


Billings County, et. al., Plaintiffs
v.
United States of America, Defendant.

Case Nos. 1:12–CV–125
1:12–CV–102.

United States District Court, D. North Dakota, Southwestern Division.

Signed Nov. 25, 2014.


64 F.Supp.3d 1319

Hope L. Hogan, Matthew A. Sagsveen, William Christopher Harvey, Attorney General's Office, Bismarck, ND, for Plaintiffs.

Sara Porsia, Stephen G. Bartell, U.S. Department of Justice, Washington, DC, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL

CHARLES S. MILLER, JR., United States Magistrate Judge.

I. BACKGROUND

A. Introduction

Case No. 1:12–CV–125 is an action filed by the State of North Dakota seeking to

64 F.Supp.3d 1320

quiet title to its claim of section line rights-of-way within the Little Missouri National Grassland, the Sheyenne National Grassland, and the portion of the Cedar River National Grassland located in North Dakota—all of which are a part of the Dakota Prairie Grasslands administered by the United States Forest Service, which is an agency of the United States Department of Agriculture (“USDA”). Case No. 1:12–CV–102 is an action by four North Dakota counties (Billings, McKenzie, Slope, and Golden Valley—collectively referred to herein as the “Counties”) seeking to quiet title to the claimed section line rights-of-way in just the Little Missouri National Grassland as well as six individual roads claimed by McKenzie County. The two actions have been consolidated with the State of North Dakota's action being the “lead case” and the action by the four counties being the “consolidated case.”

Before the court now is a joint motion to compel discovery by North Dakota and the Counties. Before turning to the motion, some understanding of what overall is in dispute is important.

B. Plaintiffs' quiet title claims

1. Revised Statute 2477

In 1866, Congress provided for public access across unreserved public domain lands by granting rights-of-way for the construction of highways by the passage of a statute that is commonly referred to as “R.S. 2477,” which read in its entirety as follows:

The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.

Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by Federal Land Policy and Management Act of 1976, Pub.L. No. 94–579, Title VII, § 706(a), 90 Stat. 2743, 2793.

On October 21, 1976, Congress abandoned its prior approach to public lands and instituted a preference for retention of lands in federal ownership, with an increased emphasis on conservation and preservation, by its enactment of the Federal Land Policy and Management Act of 1976 (“FLPMA”). Among other things, the FLPMA repealed R.S. 2477 but preserved “any valid” right-of-way “existing on the date of approval of this Act.” Pub.L. No. 94–579, §§ 701(a), 706(a), 90 Stat. at 2786, 2793; see Southern Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 740 (10th Cir.2005).

2. Plaintiffs' primary claim of right-of-way based on North Dakota's section line law

The primary claim of North Dakota and the Counties is that every section line within or adjacent to the Forest Service lands identified above is subject to a 66' wide public right-of-way running along and extending 33' on either side of the section lines. Plaintiffs contend this right-of-way burdens the Forest Service lands regardless of whether a road has been constructed or there is evidence of use of the section lines for public travel. Plaintiffs' claim rests upon an 1871 Dakota Territory law and successor versions enacted after statehood that plaintiffs contend, and the North Dakota Supreme Court agrees, was an “acceptance” of the purported open-ended grant of right-of-way for highways under Revised Statute 2477. E.g., Small v. Burleigh County, 225 N.W.2d 295 (N.D.1974) (“Small ”); Faxon v. Lallie Civil Twp., 36 N.D. 634, 163 N.W. 531, 532 (1917).

The law enacted by the Dakota Territory in 1871, stated that “[h]ereafter all section lines in this territory shall be and are hereby declared public highways as far as practicable[.]” Id. After North Dakota achieved statehood in 1889, the statute was

64 F.Supp.3d 1321

amended in 1895 without substantial change to the relevant portion quoted above. N.D. Revised Code § 1050 (1895). Since then, it has been revised from time-to-time and whether any of these changes are material may be subject to some dispute.1 The present version is codified at N.D.C.C. § 24–07–03 (2013) and reads as follows:

§ 24–07–03. Section lines considered public roads open for public travel—Closing same under certain conditions.

In all townships in this state, outside the limits of incorporated cities, and outside platted townsites, additions, or subdivisions recorded pursuant to sections 40–50.1–01 through 40–50.1–17 or recorded prior to July 1, 1987, under former chapter 40–50, the congressional section lines are considered public roads open for public travel to the width of thirty-three feet [10.06 meters] on each side of the section lines.
* * * *

Without getting too deep into the merits of plaintiffs' primary claim of right-of-way, the position of the United States in opposition is twofold. The United States first points out that R.S. 2477, by its very language, does not apply to lands that were reserved for public use and states that some of the section lines at issue lie within or along reserved lands.2 Second, the United States contends that the grant of right-of-way pursuant to R.S. 2477 was only for highways that were actually constructed and not a present grant of right-of-way for possible future highway construction. Consequently, according to the United States, no right-of-way now exists along the sections lines of unreserved lands if a highway was not actually constructed prior to the repeal of R.S. 2477 in 1976.3 According to the United States,

64 F.Supp.3d 1322

section lines themselves are not highways, rather they are simply geographic lines, and a mere declaration by a state that they are highways cannot trump what it contends was the clear purpose and meaning of R.S. 2477 any more than if the State had chosen to declare quarter-quarter lines or, perhaps more broadly, township lines as highways.

3. McKenzie County's additional claims

In addition to this primary claim of “section line” right-of-way, McKenzie County seeks to quiet title to several specific roads within the Forest Service grasslands that do not necessarily follow the section lines. The claims with respect to these roads are based entirely, or in substantial part, on things other than the State's section line law. And, since McKenzie County has not argued why it needs discovery of the material that is the subject of the motion to compel with respect these claims, they will be ignored for purposes of the decision here.4

C. The Motion to Dismiss by the United States

The United States has filed a motion to dismiss, contending that plaintiffs' complaints are deficient because they fail to describe with particularity the land in question and also that, in any event, plaintiffs' claims are barred by the 12–year limitation period for commencing an action under the Quiet Title Act (“QTA”), which is jurisdictional. Following the filing of this motion, the parties agreed that discovery limited to the issues raised by the motion to dismiss would be conducted and a briefing schedule was established for supplemental briefing on a renewed motion to dismiss following the completion of discovery.

D. Plaintiffs' joint motion to compel discovery

Before the court now is a joint motion to compel discovery brought by plaintiffs in both actions (Doc. No. 73). The motion seeks to compel disclosure of two categories of documents that the United States claims are privileged.

The first category are documents that set forth, reference, or otherwise relate to opinions issued by two attorneys within the USDA's Office of General Counsel—Morris Hankins and James Wood—that relate to R.S. 2477 and/or North Dakota's section line law. Hankins issued his principal opinion in 1962 and Wood issued his opinions in 1980. More specifically plaintiffs seek an order compelling the following withheld or redacted documents: USA74919, 75171, 76370, 76417, 76422, 76452, 76983, 77004, 77034, 77037, 77038, 77039, 77047, 77050, 77056, 77058, 77064, 77065, 77074, 77078, 77167, and 77170.

The second category of documents that plaintiffs seek are title opinions rendered to the Forest Service that may identify and address the same issues with respect to specific sections lines. The title opinions that plaintiffs seek are: USA75212, 75257, 75265, 75320, 75339, 75379, 75391,...

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