McCONNELL, Circuit Judge.
This case involves one of the more contentious land use issues in the West: the legal status of claims by local governments to rights of way for the construction of highways across federal lands managed by the Bureau of Land Management (BLM). In 1866, Congress passed an open-ended grant of "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 Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by Federal Land Policy Management Act of 1976 (FLPMA), Pub.L. No. 94-579 § 706(a), 90 Stat. 2743. This statute, commonly called "R.S. 2477," remained in effect for 110 years, and most of the transportation routes of the West were established under its authority. During that time congressional policy promoted the development of the unreserved public lands and their passage into private productive hands; R.S.
In 1976, however, Congress abandoned its prior approach to public lands and instituted a preference for retention of the lands in federal ownership, with an increased emphasis on conservation and preservation. See FLPMA, 43 U.S.C. § 1701 et seq. As part of that statutory sea change, Congress repealed R.S. 2477. There could be no new R.S. 2477 rights of way after 1976. But even as Congress repealed R.S. 2477, it specified that any "valid" R.S. 2477 rights of way "existing on the date of approval of this Act" (October 21, 1976) would continue in effect. Pub.L. No. 94-579 § 701(a), 90 Stat. 2743, 2786 (1976). The statute thus had the effect of "freezing" R.S. 2477 rights as they were in 1976. Sierra Club v. Hodel, 848 F.2d 1068, 1081 (10th Cir.1988), overruled on other grounds by Village of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970, 971 (10th Cir.1992) (en banc).
The difficulty is in knowing what that means. Unlike any other federal land statute of which we are aware, 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. As the Supreme Court of Utah noted 75 years ago, R.S. 2477 "`was a standing offer of a free right of way over the public domain,'" and the grant may be accepted "without formal action by public authorities." Lindsay Land & Live Stock Co. v. Churnos, 75 Utah. 384, 285 P. 646, 648 (1929), (quoting Streeter v. Stalnaker, 61 Neb. 205, 85 N.W. 47, 48 (1901)). In its Report to Congress on R.S. 2477: The History and Management of R.S. 2477 Rights-of-Way Claims on Federal and Other Lands 1 (June 1993), the Department of the Interior explained 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."
To make matters more difficult, parties rarely had an incentive to raise or resolve potential R.S. 2477 issues while the statute was in effect, unless the underlying land had been patented to a private party. If someone wished to traverse unappropriated public land, he could do so, with or without an R.S. 2477 right of way, and given the federal government's pre-1976 policy of opening and developing the public lands, federal land managers generally had no reason to question use of the land for travel. Roads were deemed a good thing. Typical was the comment by the great nineteenth-century Michigan jurist, Thomas Cooley, that "[s]uch roads facilitate the settlement of the country, and benefit the neighborhood, and in both particulars they further a general policy of the federal government. But they also tend to increase the value of the public lands, and for this reason are favored." Flint & P.M. Ry. Co. v. Gordon, 41 Mich. 420, 2 N.W. 648, 653 (1879). Thus, all pre-1976 litigated cases involving contested R.S. 2477 claims (and there are dozens) were between private landowners who had obtained title to previously-public land and would-be road users who defended the right to cross private land on what they alleged to be R.S. 2477 rights of way.
Now that federal land policy has shifted to retention and conservation, public roads and rights of way in remote areas appear in a different light. Some roads and other rights of way are undoubtedly necessary, but private landowners express the fear
I. FACTUAL AND PROCEDURAL BACKGROUND
In September and October of 1996, road crews employed by San Juan, Kane, and Garfield Counties entered public lands managed by the BLM and graded sixteen roads (or "primitive trails," as the BLM calls them) located in southern Utah. The Counties did not notify the BLM in advance, or obtain permission to conduct their road grading activities. With a few possible exceptions, none of these roads had previously been graded by the Counties, though some of them showed signs of previous construction or maintenance activity. The roads are claimed by the Counties as rights of way under R.S. 2477; some of them are listed on County maps as Class B or Class D highways. Six of the routes lie within wilderness study areas. Nine are within the Grand Staircase-Escalante National Monument. Six others traverse a mesa overlooking the entrance corridor to the Needles District of Canyonlands National Park. According to the Complaint filed by a consortium of environmental organizations including the Southern Utah Wilderness Alliance (hereinafter collectively referred to as "SUWA"), the areas affected by the Counties' road grading activities "contain stunning red-rock canyon formations, pristine wilderness areas, important cultural and archeological sits [sic], undisturbed wildlife habitat, and significant opportunities for hiking, backpacking and nature study in an area largely undisturbed by road or human . . . development."
SUWA protested to the BLM, but these initial protests resulted in no apparent action against the road grading actions of the Counties. In October of 1996, SUWA filed suit against the BLM, San Juan County, and later Kane and Garfield Counties, alleging that the Counties had engaged in unlawful road construction activities and that the BLM had violated its duties under FLPMA, 43 U.S.C. § 1701 et seq., the Antiquities Act, 16 U.S.C. § 431 et seq., and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., by not taking action. The complaint sought declaratory and injunctive relief requiring the BLM to halt the Counties' construction activities and enjoining the Counties from further road construction or maintenance without the BLM's permission. The BLM filed
The Counties defended on the ground that their road improvement activities were lawful because the activities took place within valid R.S. 2477 rights of way. The district court acknowledged that "the validity and scope of the claimed rights-of-way [were the] key to resolving the trespass claims," Memorandum Decision of May 11, 1998 at 3, but it also concluded that binding Tenth Circuit precedent required that "the initial determination of whether activity falls within an established right-of-way . . . be made by the BLM and not the court." Id. at 3 (quoting Hodel, 848 F.2d at 1084) (internal quotation marks omitted). It therefore stayed the litigation and referred the issue of the validity and scope of the claimed rights of way to the BLM. Although the Counties requested a ruling on "how the `findings' of the [BLM] [would] be utilized" and "the weight [the] court may give such findings," the district court declined, stating that the weight it would give the BLM's findings was "not presently at issue." Memorandum Decision of August 6, 1998, at 2-3.
The BLM then conducted a thorough informal adjudication of the Counties' purported rights of way. It first issued an instructional memorandum describing the process it would use to determine the validity and scope of the Counties' asserted rights of way. The memorandum included a general description of the evidence the BLM was seeking: evidence that the subject lands "were withdrawn, reserved or otherwise unavailable pursuant to R.S. 2477," evidence of "construction" (undefined), and evidence that the claimed right of way was a "highway" (defined as "a thoroughfare used . . . by the public for the passage of vehicles carrying people or goods from place to place"). The BLM then sent letters to the Counties, requesting that they "provide . . . any and all information or evidence (i.e., documents, maps, etc.) believed to be relevant to the validity or scope of the R.S. 2477 claims." It also published public notices seeking "any information believed to be relevant" to the Counties' R.S. 2477 claims.
The BLM then reviewed a variety of documents, including U.S. and county public land records and surveys, maps and aerial photography, wilderness inventory records, and BLM planning, grazing and maintenance records. It also conducted field investigations of each disputed route with representatives of the Counties and SUWA. In April of 1999, the BLM issued draft determinations for review and comment, and in July of 1999 and January of 2000, it issued final administrative determinations, concluding that the Counties lacked a valid right of way for fifteen of the sixteen claims, and that Kane County had exceeded the scope of its right of way in the sixteenth claim, the Skutumpah Road.
SUWA then filed a motion for summary judgment in the district court seeking enforcement of the BLM's administrative determinations. In response, the Counties sought to introduce evidence in addition to that contained in the administrative record, arguing that the district court should treat the BLM's determinations merely as discovery evidence on de novo review. The district court disagreed. It stated that "[r]eviews of agency action in the district courts must be processed as appeals," and therefore characterized SUWA's motion not as a request for summary judgment but as an appeal of informal agency adjudication. Southern Utah
The district court affirmed the BLM's determinations in their entirety, concluding that the BLM's factual determinations were supported by substantial evidence in the record and that its interpretation of R.S. 2477 was persuasive under Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Id. at 1137. The Counties appealed, and we dismissed their initial appeal for lack of jurisdiction, Southern Utah Wilderness Alliance v. Bureau of Land Management, 69 Fed.Appx. 927, 929-31 (10th Cir.2003), concluding that the district court's order was not final because it did not rule on the parties' requests for injunctive relief and damages. On remand, the district court entered a final order granting the requests of SUWA and the BLM for declaratory judgment and denying all other requests for relief. Order of February 23, 2004 at 1-19. The Counties again appeal.
II. JURISDICTION AND STANDING
This Court has jurisdiction under 28 U.S.C. § 1291. The district court's order of February 23, 2004 constituted a final judgment, resolving all issues outstanding in the case.
San Juan County argues that SUWA lacks standing to challenge the Counties' purported rights of way. We need not address this issue, however, because the BLM, which does have standing, has raised the same claims and sought the same relief as SUWA, both here and before the district court. A decision on SUWA's standing, therefore, would in no way avoid resolution of the relevant issues. See Secretary of the Interior v. California, 464 U.S. 312, 319 n. 3, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984); California Bankers Ass'n v. Shultz, 416 U.S. 21, 44-45, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974).
III. TRESPASS CLAIMS AGAINST THE COUNTIES
In its final order of February 23, 2004, the district court granted SUWA's request for a declaration that:
Order of February 23, 2004 at 17. It also granted the BLM's request for a declaration that:
Id. at 18. These orders may be summarized as (1) a declaratory judgment that the Counties do not have R.S. 2477 rights of way on fifteen of the roads and exceeded the scope of the right of way on the Skutumpah road; and (2) a declaratory judgment that the Counties' action in
The BLM contends, as it did below, that the Counties' actions in grading and realigning the roads in question without prior notice to or authorization from the BLM constituted trespass, whether or not the Counties have a valid R.S. 2477 right of way on those routes. Under BLM regulations in effect at the time of the alleged trespass, any use of federal lands that requires a right of way or other authorization and "that has not been so authorized, or that is beyond the scope and specific limitations of such an authorization, or that causes unnecessary or undue degradation, is prohibited and shall constitute a trespass." 43 C.F.R. § 2801.3(a) (2004) (deleted April 22, 2005).
The district court rejected the BLM's argument. According to the court, "[A]s long as [the] County stays within its right-of-way, the scope of which is to be defined using Utah law, BLM authorization is not required." Memorandum Decision of October 8, 1997 at 19, Aplt.App. Vol. 1 at 136. See also Memorandum Decision of May 11, 1998 at 2-3, Aplt.App. Vol. 1 at 228-29 ("The United States originally argued that the road work activities of the Counties were unauthorized, whether or not the Counties held R.S. 2477 rights-of-way over the land in question. That premise has been rejected by the court. The court's view is that the validity and scope of the claimed rights-of-way are key to resolving the trespass claims asserted by the United States."). We, however, agree with the BLM, at least in part, and conclude that the holder of an R.S. 2477 right of way across federal land must consult with the appropriate federal land management agency before it undertakes any improvements to an R.S. 2477 right of way beyond routine maintenance. We remand this issue to the district court to determine whether the work performed on the routes in this case went beyond routine maintenance and thus constituted trespass.
The trespass claim presents an issue of "scope," which was litigated in this Court in Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.1988). In Hodel, the issue was whether Garfield County could convert
The Hodel court also noted that "Utah adheres to the general rule that the owners of the dominant and servient estates `must exercise [their] rights so as not unreasonably to interfere with the other.'" Id. (quoting Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah. 213, 174 P.2d 148, 158 (1946)). This requires a system of coordination between the holder of the easement and the owner of the land through which it passes. The Court thus concluded that the BLM needed to make an "initial determination" regarding the reasonableness and necessity of any proposed improvements beyond mere maintenance of the previous condition of the road. Id. at 1084-85.
This approach was elaborated and applied in district court cases after Hodel. In United States v. Garfield County, 122 F.Supp.2d 1201 (D.Utah 2000), the court held, with reference to the same road at issue in Hodel, that any road construction within the National Park, beyond "maintenance," would require advance notification of the Park Service and mutual accommodation between the Park Service and the County. Id. at 1246. In United States v. Emery County, No. 92-C-1069S, ¶ 6 (D. Utah, consent decree entered Dec. 15, 1992), litigation between a Utah county and the BLM was resolved by entry of a consent decree providing for advance notice to the BLM of any improvements beyond routine maintenance "so that both the County and the BLM may be satisfied that the proposed work on the R.S. 2477 highway is reasonable and necessary and that no unnecessary or undue degradation to the public lands would occur thereby." These decisions are consistent with holdings of circuit courts that changes in roads on R.S. 2477 rights of way across federal lands are subject to regulation by the relevant federal land management agencies. See Clouser v. Espy, 42 F.3d 1522, 1538 (9th Cir.1994) (holding that "regardless whether the trails in question are public highways under R.S. 2477, they are nonetheless subject to the Forest Service regulations"); United States v. Vogler, 859 F.2d 638, 642 (9th Cir.1988) (holding that proposed improvements to an R.S. 2477 route in a National Preserve is subject to regulation by the National Park Service); see also United States v. Jenks, 22 F.3d 1513, 1518 (10th Cir.1994) (holding that the owner of a patent or common law easement across national forest lands had to apply for a special use permit).
Id. at 1243-44 (footnote omitted).
Although Garfield County involved an R.S. 2477 right of way within a National Park, we see no reason why consultation of this sort is not equally required with respect to R.S. 2477 routes across BLM land. Cf. Clouser, 42 F.3d at 1538 (holding that National Forest Service had authority to forbid opening R.S. 2477 routes to motorized travel). The principle that the easement holder must exercise its rights so as not to interfere unreasonably with the rights of the owner of the servient estate, derives from general principles of the common law of easements rather than the peculiar status of National Parks. See Jenks, 22 F.3d at 1518 (holding, under "basic principles of property law," that easement rights are subject to regulation by the Forest Service as the owner of the servient estate). Just as the National Park Service has obligations to protect National Park land, the BLM has obligations to protect the land over which the roads at issue here pass. See FLPMA § 302(b), 43 U.S.C. § 1732(b) ("In managing the public lands, the Secretary shall, subject to this Act and other applicable law and under such terms and conditions as are consistent with such law, regulate, through easements [and] licences . . . the use, occupancy, and development of the public lands"). Unless it knows in advance when right-of-way holders propose to change the width, alignment, configuration, surfacing, or type of roads across federal land, the BLM cannot effectively discharge its responsibilities to determine whether the proposed changes are reasonable and necessary, whether they would impair or degrade the surrounding lands, and whether modifications in the plans should be proposed.
The Counties argue, in effect, that as long as their activities are conducted within the physical boundaries of a right of way, their activities cannot constitute a trespass. But this misconceives the nature of a right of way. A right of way is not tantamount to fee simple ownership of a defined parcel of territory. Rather, it is an entitlement to use certain land in a particular way. To convert a two-track jeep trail into a graded dirt road, or a graded road into a paved one, alters the use, affects the servient estate, and may go beyond the scope of the right of way. See Hodel, 848 F.2d at 1083 ("[s]urely no Utah case would hold that a road which had always been two-lane with marked and established fence lines, could be widened to accommodate eight lanes of traffic"); Jeremy v. Bertagnole, 101 Utah. 1,
We note that the Utah legislature in 1993 enacted the Rights-of-Way Across Federal Lands Act, Utah Code Ann. § 72-5-303, which provides that "[t]he owner of an R.S. 2477 right-of-way and the owner of the servient estate shall exercise their rights without unreasonably interfering with one another." Id. at § 72-5-303(2). This reflects a commendable spirit of mutual accommodation that should characterize the relations of levels of government in our federal system. Both levels of government have responsibility for, and a deep commitment to, the common good, which is better served by communication and cooperation than by unilateral action. See also Restatement (Third) of Property: Servitudes, § 4.10 cmt. a (1998) ("In the absence of detailed arrangements between them, it is assumed that the owner of the servitude and the holder of the servient estate are intended to exercise their respective rights and privileges in a spirit of mutual accommodation.").
We therefore hold that when the holder of an R.S. 2477 right of way across federal land proposes to undertake any improvements in the road along its right of way, beyond mere maintenance, it must advise the federal land management agency of that work in advance, affording the agency a fair opportunity to carry out its own duties to determine whether the proposed improvement is reasonable and necessary in light of the traditional uses of the rights of way as of October 21, 1976, to study potential effects, and if appropriate, to formulate alternatives that serve to protect the lands.
In drawing the line between routine maintenance, which does not require consultation with the BLM, and construction
122 F.Supp.2d at 1253 (footnote omitted). Under this definition, grading or blading a road for the first time would constitute "construction" and would require advance consultation, though grading or blading a road to preserve the character of the road in accordance with prior practice would not. Although drawn as an interpretation of 36 C.F.R. § 5.7, which applies within national parks, the district court noted that: "This construction comports with the commonly understood meanings of the words, the pertinent statutes, agency interpretations, and the past experience of the parties on the Capitol Reef segment, including the experience leading up to February 13, 1996." Id. We therefore find it applicable to distinguishing between routine maintenance and actual improvement of R.S. 2477 claims across federal lands more generally.
Drawing the line between maintenance and construction based on "preserving the status quo" promotes the congressional policy of "freezing" R.S. 2477 rights of way as of the uses established as of October 21, 1976. Hodel, 848 F.2d at 1081. It protects existing uses without interfering unduly with federal land management and protection. As long as the Counties act within the existing scope of their rights of way, performing maintenance and repair that preserves the existing state of the road, they have no legal obligation to consult with the BLM (though notice of what they are doing might well avoid misunderstanding or friction). If changes are contemplated, it is necessary to consult, and the failure to do so will provide a basis for prompt injunctive relief. "Bulldoze first, talk later" is not a recipe for constructive intergovernmental relations or intelligent land management.
The record is not sufficient to determine whether the work performed by the Counties in the Fall of 1996 was routine maintenance or construction. On remand, therefore, the parties should be permitted to introduce evidence relevant to the question of trespass, as defined in this opinion.
IV. PRIMARY JURISDICTION OVER R.S. 2477 RIGHTS OF WAY
We turn now to the district court's holding that none of the fifteen contested routes falls within a valid R.S. 2477 right of way. We address first the question of whether the district court should have treated this dispute as an appeal of an informal, but legally binding, administrative adjudication, or instead should have treated it as a de novo legal proceeding. We then turn to questions of substantive law.
The difference is significant. If the doctrine of primary jurisdiction applies, the BLM had authority to determine the validity of the R.S. 2477 claims in question, and judicial review is limited to determining whether there was substantial evidence in the BLM proceeding to support the agency's determinations. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574-75 (10th Cir.1994). If not, and the district court's stay of the judicial proceeding and remand to the agency was solely for the purpose of enabling the agency to determine its own position in the litigation, then the district court should have conducted a de novo proceeding based on the plaintiffs' claims of trespass and requests for declaratory judgments regarding the validity of the R.S. 2477 claims; the parties were entitled to introduce evidence in court (including but not limited to the administrative record), and questions of fact would be decided by the court on a preponderance of the evidence standard.
The circuits are split over the standard of review of decisions whether to recognize the primary jurisdiction of an administrative agency. This Court, like the Fourth and District of Columbia circuits, reviews decisions regarding primary jurisdiction under an abuse of discretion standard. Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1377 (10th Cir.1989); Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 947-948 (10th Cir.1995). Accord, Nat'l Tel. Coop. Ass'n v. Exxon Mobil Corp. 244 F.3d 153, 156 (D.C.Cir.2001); Envtl. Tech. Council v. Sierra Club, 98 F.3d 774, 789 (4th Cir.1996). Other circuits review such decisions de novo. E.g., Access Telecomms. v. Southwestern Bell Tel. Co., 137 F.3d 605, 608 (8th Cir.1998) (reviewing the primary jurisdiction issue de novo without deciding the question); Newspaper Guild of Salem v. Ottaway Newspapers, Inc., 79 F.3d 1273, 1283 (1st Cir.1996); National Communications Ass'n v. Am. Tel. & Tel. Co., 46 F.3d 220, 222 (2d Cir.1995); Int'l Bhd. of Teamsters v. Am. Delivery Ser. Co., 50 F.3d 770, 773 (9th Cir.1995). We adhere to this circuit's standard of review, while noting that any error of law is presumptively an abuse of discretion and questions of law are reviewed de novo.
Primary jurisdiction is a prudential doctrine designed to allocate authority between courts and administrative agencies. An issue of primary jurisdiction arises when a litigant asks a court to resolve "[an] issue which, under a regulatory scheme, ha[s] been placed within the special competence of an administrative body." United States v. Western Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). If the issue is one "that Congress has assigned to a specific agency," Williams Pipe Line Co. v. Empire Gas Corp., 76 F.3d 1491, 1496 (10th Cir.1996), the doctrine of primary jurisdiction allows the court to stay the judicial
There is no mechanical formula for applying the doctrine of primary jurisdiction. In each case, "the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation." Id. at 64, 77 S.Ct. 161. The doctrine serves two purposes. First, it promotes regulatory uniformity by preventing courts from interfering sporadically with a comprehensive regulatory scheme. See, e.g., United States v. Radio Corp. of America, 358 U.S. 334, 346, 350, 79 S.Ct. 457, 3 L.Ed.2d 354 (1959) (citing Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907)). Second, the doctrine promotes resort to agency expertise by allowing courts to consult agencies on "issues of fact not within the conventional experience of judges." Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 96 L.Ed. 576 (1952); See also Great N. R.R. Co. v. Merchants' Elevator Co., 259 U.S. 285, 291, 42 S.Ct. 477, 66 L.Ed. 943 (1922). These two concerns—regulatory uniformity and agency expertise—drive the primary jurisdiction analysis. When a decision by a court would threaten the uniformity of a regulatory scheme or require the court to confront issues of fact outside of its conventional experience, the doctrine of primary jurisdiction allows the court to suspend the judicial process and direct the parties to seek a decision before the appropriate administrative agency. Western Pac., 352 U.S. at 64, 77 S.Ct. 161.
All of this assumes that Congress has, by statute, given authority over the issue to an administrative agency. If not, there is no need to assess uniformity and expertise because the issue is not one that, "under a regulatory scheme, ha[s] been placed within the special competence of an administrative body." Id. at 64, 77 S.Ct. 161. Thus, before we delve into questions of uniformity and expertise, we must determine whether Congress has granted the BLM authority to determine validity of R.S. 2477 rights of way in the first place.
R.S. 2477 is silent on this question. It makes no mention of what body—courts or agencies—should resolve disputes over R.S. 2477 rights of way. The BLM argues that we should interpret this silence against the backdrop of general statutory provisions that give the BLM authority to execute the laws regulating the acquisition of rights in the public lands.
The BLM's argument, we believe, confuses a land agency's responsibility for carrying out the executive function of administering congressionally determined procedures for disposition of federal lands with the authority to adjudicate legal title to real property once those procedures have been completed. The latter is a judicial, not an executive, function. It is one thing for an agency to make determinations regarding conditions precedent to the passage of title, and quite another for the agency to assert a continuing authority to resolve by informal adjudication disputes between itself and private parties who claim that they acquired legal title to real property interests at some point in the past.
Perhaps more to the point, for over a century, in every Land Department or BLM decision in which parties sought a ruling on the validity of an R.S. 2477 claim, the agency maintained that this was a matter to be resolved by the courts. See
The BLM relies primarily on the Supreme Court's decision in Cameron v. United States, 252 U.S. 450, 40 S.Ct. 410, 64 L.Ed. 659 (1920). In that case, the owner of an unpatented mining claim applied to the Land Department (the BLM's predecessor) for a patent, which is the instrument by which the government conveys a grant of public land to a private person. After a hearing, the Department denied him a patent, concluding that the land was nonmineral in character and that there had been no adequate mineral discovery— in effect, declaring the claim invalid. When the United States later sued in district court to eject the claimant from the premises, the district court gave conclusive effect to the Land Department's declaration of invalidity. On appeal, the claimant argued that this was error; that, although the Land Department had authority to deny him a patent, it lacked authority to make a binding declaration on the validity of his claim. The Supreme Court disagreed, holding that the Land Department had authority to determine the validity of unpatented mining claims. According to the Court, this authority rested not on any specific grant of authority in the mineral land law, but on the general principle that, "in the absence of some direction to the contrary," the general statutory provisions giving the Land Department authority to execute the laws regulating the public lands also give it authority to inquire into claims against the government under a statutory grant of land. Id. at 461, 40 S.Ct. 410. The Supreme Court made clear, however, that the agency's authority continues only "so long as the legal title remains in the government." Id. at 460, 40 S.Ct. 410. Once legal title passes by the issuance of a mining patent, "the power of the department to inquire into the extent and validity of the rights claimed against the government . . . cease[s]." Id. at 461, 40 S.Ct. 410 (quoting Michigan Land & Lumber Co. v. Rust, 168 U.S. 589, 593, 18 S.Ct. 208, 42 L.Ed. 591 (1897)).
The BLM urges us to extend the reasoning of Cameron to the R.S. 2477 rights of way at issue here. According to the BLM, the same general statutory provisions giving the Land Department authority to rule on the validity of unpatented mining claims should give the BLM authority to rule on the validity of R.S. 2477 rights of way. However, this argument ignores a fundamental difference between mining claims and R.S. 2477 rights of way: title to a mining claim passes by means of a patent, which is issued by the agency in accordance with specified procedures and subject to specified substantive prerequisites. Title to an R.S. 2477 right of way, by contrast, passes without any procedural formalities and without any agency involvement.
Mining claimants who want legal title must apply to the BLM for a patent. See 30 U.S.C. § 29 (derived from the Mining Law of 1872, Act of May 10, 1872, ch. 152, § 6, 17 Stat. 91, 92); 43 U.S.C. § 2; see generally 2 American Law of Mining § 51.03 (2d ed.2004). The BLM then has authority to "consider and pass upon the qualifications of the applicant, the acts he has performed to secure the title, the nature of the land, and whether it is of the class which is open to sale"—in effect, to decide whether the claim is valid. Steel v. St. Louis Smelting & Refining Co., 106 U.S. 447,
Congress established a very different system for R.S. 2477 rights of way. Because there are no patents, title to rights of way passes independently of any action or approval on the part of the BLM. All that is required, as we explain further in Section V.B.2, are acts on the part of the grantee sufficient to manifest an intent to accept the congressional offer. In fact, because there were no notice or filing requirements of any kind, R.S. 2477 rights of way may have been established—and legal title may have passed—without the BLM ever being aware of it. Thus, R.S. 2477 creates no executive role for the BLM to play.
This suggestion is confirmed by long-standing BLM practice under the statute. See Sierra Club v. Hodel, 848 F.2d 1068, 1080 (10th Cir.1988) (practice under a statute is relevant evidence of how that statute should be interpreted) (quoting United States v. Midwest Oil Co., 236 U.S. 459, 473, 35 S.Ct. 309, 59 L.Ed. 673 (1915)). Until very recently, the BLM staunchly maintained that it lacked authority to make binding decisions on R.S. 2477 rights of way.
Id. at 2-3. This refusal to adjudicate R.S. 2477 disputes has been the consistent position of the BLM and the IBLA for over one hundred years.
The BLM also has been reluctant, until very recently, to issue regulations governing R.S. 2477 rights of way. In fact, its earliest regulation on the subject disclaimed any role for the federal government in implementing R.S. 2477. That regulation states, in its entirety:
43 C.F.R. § 244.55 (1939) (footnote omitted). This regulation reflects the position that R.S. 2477 gives the BLM no executive role, and indicates that the BLM interpreted the grant to take effect without any action on its part. Subsequent editions of the Code of Federal Regulations carried forward the same language,
Moreover, not only has the BLM long declined to regulate R.S. 2477 rights of way, but Congress had forbidden it from doing so. In 1994, eighteen years after R.S. 2477 had been repealed, the BLM changed course and proposed comprehensive regulations governing R.S. 2477 rights of way. See 59 Fed.Reg. 39216, 39219-27 (1994). These rules proposed, for the first time, an administrative procedure by which the BLM would adjudicate the validity of R.S. 2477 claims. Congress responded with an appropriations provision prohibiting the Department of the Interior from issuing final rules governing R.S. 2477:
U.S. Department of the Interior and Related Agencies' Appropriations Act, 1997, § 108, enacted by the Omnibus Consolidated Appropriations Act, 1997, Pub.L. No. 104-208, 110 Stat. 3009 (1996).
SUWA argues that this congressional prohibition applies only to "final rule[s] or regulation[s]," and that Congress therefore must have wanted to preserve the BLM's authority to "issu[e] orders and engag[e] in adjudications related to R.S. 2477." SUWA Br. 67. But this ignores the fact that for over one hundred years the BLM had taken the position it could not issue binding orders adjudicating R.S. 2477 rights of way; there was, accordingly, no such authority to preserve. Prior to this litigation, even the BLM interpreted the prohibition as an indication that Congress chose to preserve the status quo, according to which courts, not the BLM, adjudicate R.S. 2477 rights of way.
In sum, nothing in the terms of R.S. 2477 gives the BLM authority to make binding determinations on the validity of the rights of way granted thereunder, and we decline to infer such authority from silence when the statute creates no executive role for the BLM. This decision is reinforced by the long history of practice under the statute, during which the BLM has consistently disclaimed authority to make binding decisions on R.S. 2477 rights of way. Indeed, there have been 139 years of practice under the statute—110 years while the statute was in force, and 29 years since its repeal—and the BLM has not pointed to a single case in which a court has deferred to a binding determination by the BLM on an R.S. 2477 right of way. We conclude that the BLM lacks primary jurisdiction and that the district court abused its discretion by deferring to the BLM.
This does not mean that the BLM is forbidden from determining the validity of R.S. 2477 rights of way for its own purposes. The BLM has always had this authority. It exercises this authority in what it calls "administrative determinations." In its 1993 Report to Congress, the Department of the Interior explained that the BLM had developed "procedures for administratively recognizing and . . . record[ing] this information on the land status records." 1993 D.O.I. Report to Congress, at 25. These procedures "are not intended to be binding, or a final agency action." Id. Rather, "they are recognitions of `claims' and are useful only for limited purposes," namely, for the agency's internal "land-use planning purposes." Id. at 25-26.
It was this administrative procedure that was at issue in Hodel, where we stated that "Tenth Circuit precedent requires that the initial determination of whether activity falls within an established right-of-way is to be made by the BLM and not the court." 848 F.2d at 1084 (internal citation and quotation marks omitted). After the BLM made its initial administrative determination in Hodel, the district court conducted a twenty-five day trial on
V. LEGAL ISSUES ON REMAND
Because the BLM lacks primary jurisdiction over R.S. 2477 rights of way, a remand is required to permit the district court to conduct a plenary review and resolution of the R.S. 2477 claims in this case. On remand, the parties are permitted to introduce evidence regarding the validity and scope of the claims, including, but not limited to, the evidence contained in the administrative record before the BLM.
Bearing in mind the burden this places on the district court, and the importance of these issues to resolution of potentially thousands of R.S. 2477 claims in the State of Utah and elsewhere, this Court will proceed now to address some of the significant legal issues that have been briefed by the parties on appeal and ruled on by the court below. This should not be understood as a comprehensive catalog of applicable legal principles. Undoubtedly, new legal issues will arise in the course of the proceedings on remand.
A. State or Federal Law
The central question in this case is how a valid R.S. 2477 right of way is acquired. As framed by the parties, the answer to this question turns on whether federal or state law governs the acquisition of rights of way under R.S. 2477. For reasons discussed below, we are more doubtful than the parties that the choice between federal and state law is outcome determinative. The principal difference between the federal and state standards, according to the parties, is whether acceptance of an R.S. 2477 right of way is dependent on actual "construction," meaning that "[s]ome form of mechanical construction must have occurred to construct or improve the highway," (the supposed "federal" standard adopted by the BLM), or whether it can be established by the "passage of vehicles by users over time" (the supposed "state" standard advocated by the Counties). San Juan County (S.J.C.) Br. 27 (quoting BLM Manual 2801, Rel. 2-263, 2801.48B1b (March 8, 1989)). But it is far from clear, first, that "federal" standards are necessarily those adopted by the BLM in its administrative determinations in this case; those standards, while presumably helpful in setting forth the agency's thinking on the subject, have never formally been adopted in any agency action with the force and effect of law, or adopted by any court as an interpretation of the terms of
We nonetheless begin with this question: which law applies?
1. The BLM Interpretation
In making its administrative determinations, the BLM found that three criteria must be satisfied for a right of way to be recognized under R.S. 2477: "The claimed right-of-way must have been located on unreserved public lands; it must have been actually constructed; and it must have been a highway." The agency further defined each of these terms. See pages 775, 782, and 783-84 below. These criteria draw heavily on a 1980 letter written by the Deputy Solicitor of the Department of the Interior, Frederick Ferguson, to an Assistant Attorney General at the Land and Natural Resources Division of the Department of Justice, James Moorman. Supp.App. 46 (April 28, 1980). In 1994, the criteria were incorporated in proposed regulations issued by the BLM. See 59 Fed.Reg. 39,216 (Aug. 1, 1994). Congress, however, passed a permanent appropriations rider preventing those regulations from taking effect unless expressly authorized by statute. U.S. Department of the Interior and Related Agencies' Appropriations Act, 1997, § 108, enacted by the Omnibus Consolidated Appropriations Act, 1997, Pub.L. No. 104-208, 110 Stat. 3009 (1996). Accordingly, the BLM criteria have never been adopted by the agency through a formal rule or regulation and do not have the force of law. Nonetheless, the BLM used these criteria in making each of the determinations at issue in this case.
The district court, recognizing that the BLM's interpretation of the statute "appears in informal policy statements and opinion letters," declined to accord the interpretation Chevron deference, instead giving it "respect," but "only to the extent that [it has] the `power to persuade.'" Southern Utah Wilderness Alliance v. Bureau of Land Management, 147 F.Supp.2d 1130, 1135 (D.Utah 2001) (quoting Christensen v. Harris County, 529 U.S. 576, 586, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), in turn quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). Under Skidmore, the degree of deference given informal agency interpretations will "vary with circumstances, and courts have looked to the degree of the agency's care, its consistency, formality, and relative expertness, and to the persuasiveness of the agency's position." United States v. Mead Corp., 533 U.S. 218, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (footnotes omitted). Upon consideration of each of the elements of the BLM's statutory interpretation, under this standard, the district court found "the BLM's statutory interpretation of R.S. 2477 to be both reasonable and persuasive and concur[red] with the BLM interpretation." 147 F.Supp.2d at 1145.
On appeal, the BLM contends that the district court erred in not according its interpretation Chevron deference, arguing that such deference is applicable to an
The Counties argue that BLM's statutory interpretation is entitled to no deference at all. Describing the BLM's interpretation as a "mid-litigation attempt to create a federal standard of highway law," San Juan County argues that this Court should defer instead to regulations and policy statements from 1939, 1955, 1963, and 1974, which, the County argues, incorporated a state law standard. S.J.C. Br. 29-30. The County further notes that in 1988 the Secretary of the Interior issued a policy statement that repudiated arguments based on the 1980 Deputy Solicitor's letter. Id. at 28. The BLM counters that "[i]n contrast to the administrative determinations, the Department's various policy statements over the years interpreting R.S. 2477 did not have the force of law and did not legally bind the Department." BLM Br. 46 n. 14. It notes also that the policy statement issued in 1988 was rescinded in 1997. Id.
While we have no reason to question the "care" with which the BLM approached its task of statutory interpretation, or the "formality" with which it conducted its administrative determinations, this squabble amply demonstrates that the agency's interpretation lacks the "consistency" that is required to warrant strong Skidmore deference. Mead Corp., 533 U.S. at 228, 121 S.Ct. 2164. As near as we can tell, the agency has shifted its position on this issue at least three times since the repeal of R.S. 2477 in 1976. In light of the fact that FLPMA explicitly preserved and protected R.S. 2477 rights of way in existence as of October 21, 1976, and that those rights have the status of vested real property rights, any post-1976 changes in agency interpretation of the repealed statute have questionable applicability.
The BLM argues that while the administrative determinations at issue here "reflect the Department's interpretation of R.S. 2477 as it applies to those determinations, the Department retains discretion to reconsider its interpretation of R.S. 2477 in the context of future administrative policymaking, adjudications, determinations, and rulemaking." BLM Br. 44-45 n. 13. While it is ordinarily true that agencies with the delegated authority to interpret and enforce federal statutes have the discretion to reconsider and change their interpretations, Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), it is hard to square such law-changing discretion with the concept of property rights that vested, if at all, on or before a date almost 30 years ago. This is further reason to doubt that R.S. 2477 rights are subject to administrative definition and re-definition.
Moreover, we are hesitant to give decisive legal weight to an agency's interpretation when the regulations in which that interpretation was embodied were blocked by a vote of Congress. See U.S. Department of the Interior and Related Agencies' Appropriations Act, 1997, § 108, enacted by the Omnibus Consolidated Appropriations Act, 1997, Pub.L. No. 104-208, 110 Stat. 3009 (1996). To be sure, neither the
This does not mean we disregard the BLM interpretation. It means only that the interpretation receives no more "respect" than what comes from its "persuasiveness." Mead Corp., 533 U.S. at 228, 121 S.Ct. 2164.
2. Sierra Club v. Hodel
The Counties, on the other hand, argue that this Court's decision in Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.1988), established that state law, not federal law, governs determinations of R.S. 2477 rights of way. San Juan County argues that in adopting a federal standard, the district court "overruled this Court's Hodel decision affirming that establishment of a highway under state law perfected the right." S.J.C. Br. 30; see also id. at 17. More cautiously, Kane and Garfield Counties note that Hodel determined that "state laws govern the scope of R.S. 2477 rights-of-way," and that the "bases for its analysis" would lead to the same result with respect to the validity of a claimed R.S. 2477 right of way. K & G C. Br. 39.
The district court concluded that "[t]he Tenth Circuit's decision in Hodel addressed only the scope of R.S. 2477 rights-of-way already found to have been established —it did not address the issue in this case, how R.S. 2477 rights-of-way are established in the first place." 147 F.Supp.2d at 1142 (emphasis in original). For the most part, we agree. In Hodel, the parties conceded the existence of the right of way, and that was not an issue in the case. 848 F.2d at 1079; see id. at 1080 ("The salient issue is whether the scope of R.S. 2477 rights-of-way is a question of state or federal law."). Even San Juan County concedes that "validity was not at issue in Hodel, only scope." S.J.C. Br. 20. We therefore hold that Hodel is not determinative of the question.
3. Statutory text and precedent.
Having rejected the arguments that deference under administrative law compels adoption of the BLM's statutory interpretation or that the precedent of Hodel compels adoption of state law, we turn then to the statute and to general principles of interpretation of federal law. R.S. 2477 was originally enacted as Section 8 of An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes, commonly called the Mining Act of 1866. Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253. The language is short, sweet, and enigmatic: "And be it further enacted, that the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." There is little legislative history.
The real question, we think, is not whether state law applies or federal law applies, but whether federal law looks to state law to flesh out details of interpretation. R.S. 2477 is a federal statute and it governs the disposition of rights to federal property, a power constitutionally vested in Congress. U.S. Const. art. IV, § 3, cl. 2; see Utah Power & Light Co. v. United States, 243 U.S. 389, 405, 37 S.Ct. 387, 61 L.Ed. 791 (1917) (observing that the Property Clause gives Congress the power over the public lands "to control their occupancy and use, to protect them from trespass and injury, and to prescribe the conditions upon which others may obtain rights in them"); Kleppe v. New Mexico, 426 U.S. 529, 539, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976). As the Supreme Court has stated, "The laws of the United States alone control the disposition of title to its lands. The states are powerless to place any limitation or restriction on that control." United States v. Oregon, 295 U.S. 1, 27-28, 55 S.Ct. 610, 79 L.Ed. 1267 (1935). "The construction of grants by the United States is a federal not a state question." Id. at 28, 55 S.Ct. 610.
Even where an issue is ultimately governed by federal law, however, it is not uncommon for courts to "borrow" state law to aid in interpretation of the federal statute. The Supreme Court has explained that "[c]ontroversies . . . governed by federal law, do not inevitably require resort to uniform federal rules. . . . Whether to adopt state law or to fashion a nationwide federal rule is a matter of judicial policy `dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.'" United States v. Kimbell Foods, Inc., 440 U.S. 715, 727-28, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979) (quoting United States v. Standard Oil Co., 332 U.S. 301, 310, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947)); see also Wilson v. Omaha Indian Tribe, 442 U.S. 653, 671-72, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979) (same); P. Bator, et al., Hart & Wechsler's, The Federal Courts and the Federal System 768 (2d ed. 1973) ("[I]t may be determined as a matter of choice of law, even in the absence of statutory command or implication, that, although federal law should `govern' a given question, state law furnishes an appropriate and convenient measure of the content of this federal law."), quoted in Wilson, 442 U.S. at 672 n. 19, 99 S.Ct. 2529.
In the specific context of federal land grant statutes, the Court has explained that courts may incorporate state law
In determining when to borrow state law in the interpretation of a federal statute, the Supreme Court has instructed courts to consider: whether there is a "need for a nationally uniform body of law," whether state law would "frustrate federal policy or functions," and what "impact a federal rule might have on existing relationships under state law." Wilson, 442 U.S. at 672, 99 S.Ct. 2529. Those were the considerations the Hodel court consulted in determining that state law should govern the "scope" of R.S. 2477 grants. Hodel, 848 F.2d at 1082-83. It follows that to the extent state law is "borrowed" in the course of interpreting R.S. 2477, it must be in service of "federal policy or functions," and cannot derogate from the evident purposes of the federal statute. State law is "borrowed" not for its own sake, and not on account of any inherent state authority over the subject matter, but solely to the extent it provides "an appropriate and convenient measure of the content" of the federal law. Bator, et al., supra, at 768.
To modern eyes, R.S. 2477 may seem to stand on its own terms, without need for reference to any outside body of law. At the time of its enactment, however, the creation and legal incidence of "highways" was an important field within the common law, with well-developed legal principles reflected in numerous legal treatises and decisions. See, e.g., Isaac Grant Thompson, A Practical Treatise on the Law of Highways (1868); Joseph K. Angell & Thomas Durfee, A Treatise on the Law of Highways (2d ed. 1868); John Egremont, The Law Relating to Highways, Turnpike-Roads, Public Bridges and Navigable Rivers (1830); Byron K. Elliott, A Treatise on the law of Roads and Streets (1890); see also James Kent, 3 Commentaries on American Law 572-76, *432-35 (10th ed. 1860) (subject covered in chapter on law of real property). When Congress legislates against a backdrop of common law, without any indication of intention to depart from or change common law rules, the statutory terms must be read as embodying their common law meaning. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992); Community for Creative Non-Violence v. Reid, 490 U.S. 730,
In the decades following enactment of R.S. 2477, when disputes arose, courts uniformly interpreted the statute in light of this well-developed body of legal principles, most of which were embodied in state court decisions. In one early case, a landowner acquired title to a parcel of land from the United States and constructed a fence across what had been used, in previous years, as a public pathway between the town and its school. The Supreme Court of California held that under state law, five years of public use was sufficient for the public to acquire the right to use the path as a public way. McRose v. Bottyer, 81 Cal. 122, 125, 22 P. 393 (1889). "The fact that the land was public land of the United States at the time the right to use it as a public way was acquired . . . makes no difference. The act of Congress of 1866 (sec.2477, R.S. U.S.) granted the right of way for the construction of highways over public land not reserved for public uses. By the acceptance of the dedication thus made, the public acquired an easement subject to the laws of this state." Id. at 126, 22 P. 393. The Hodel court cited some fifteen decisions in which state law definitions of "acceptance" of a public highway were employed to resolve R.S. 2477 disputes, 848 F.2d at 1082 n. 13, and we have located many more.
One prominent example is the Supreme Court's decision in Central Pacific Railway Co. v. Alameda County, 284 U.S. 463, 52 S.Ct. 225, 76 L.Ed. 402 (1932), which involved a conflict between two rights of way in the bottom of a California canyon, one a public highway laid out in 1859 and "formed by the passage of wagons, etc., over the natural soil," and the other a right of way granted to the Central Pacific Railway Company under Acts of Congress in 1862 and 1864. Id. at 467, 52 S.Ct. 225. The ultimate question was whether R.S. 2477 applied retroactively to validate rights of way established prior to the enactment of the statute in 1866. The Court held that it did, and in the course of so holding, the Court acknowledged that state law governed the acceptance of the relevant R.S. 2477 right of way: "[T]he laying out by authority of the state law of the road here in question created rights of continuing user to which the government must be deemed to have assented [when it passed R.S. 2477]." Id. at 473, 52 S.Ct. 225
It was the consistent policy of the BLM, as well as the courts, to look to common law and state law as setting the terms of acceptance of R.S. 2477 grants. In 1902, in The Pasadena and Mount Wilson Toll Road Co. v. Schneider, 31 Pub. Lands Dec. 405 (1902), the Department of the Interior considered whether toll roads could be R.S. 2477 highways. Its answer to that question drew directly from the common law of "highways," as reflected in state court decisions, common law treatises, and legal dictionaries:
Id. at 407-408. In its first regulation addressing R.S. 2477 claims, issued in 1939, the BLM stated that "[t]he grant [under R.S. 2477] becomes effective upon the construction or establishing of highways, in accordance with the State laws, over public lands not reserved for public uses." 43 C.F.R. § 244.55 (1939) (emphasis added). BLM regulations continued to incorporate state law as the standard for recognizing R.S. 2477 rights of way until the repeal of
This did not mean, and never meant, that state law could override federal requirements or undermine federal land policy. For example, in an early decision, the BLM determined that a state law purporting to accept rights of way along all section lines within the county was beyond the intentions of Congress in enacting R.S. 2477. Douglas County, Washington, 26 Pub. Lands Dec. 446 (1898). The Department described this state law as "the manifestation of a marked and novel liberality on the part of the county authorities in dealing with the public land," and stated that R.S. 2477 "was not intended to grant a right of way over public lands in advance of an apparent necessity therefor, or on the mere suggestion that at some future time such roads may be needed." Id. at 447.
We do not believe application of state law in this fashion offends the criteria set forth in Wilson for appropriate borrowing of state law in the interpretation of federal statutes. The first question is whether there is a "need for a uniform national rule" regarding what steps are required to perfect an R.S. 2477 right of way. See
Id. (footnote omitted). Analogous considerations might pertain in the southern Utah canyon country in which this case arises. The sparse population, rugged terrain, scarcity of passable routes, seasonal differences in snow, mud, and stream flow, fragile and environmentally sensitive land, and paucity of towns or other centers of economic activity, could have an effect on the location of roads.
Moreover, for over 130 years disputes over R.S. 2477 claims were litigated by reference to non-uniform state standards, a fact that casts serious doubt on any claims of a need for uniformity today. See 1993 D.O.I. Report to Congress, at 2 ("There have been few problems regarding R.S. 2477 rights-of-way in most public land states although states have handled the issue differently. This may be because of the differences among state laws ..."). When the BLM proposed nationwide standards for the first time in 1994, Congress responded by passing a permanent appropriations rider forbidding the implementation of those standards absent express authorization from Congress. U.S. Department of the Interior and Related Agencies' Appropriations Act, 1997, § 108, enacted by the Omnibus Consolidated Appropriations Act, 1997, Pub.L. No. 104-208, 110 Stat. 3009 (1996). At the time it took this action, Congress was aware that there were no uniform federal standards. See 1993 D.O.I. Report to Congress, at 21 (noting the existence of "numerous and conflicting state and federal court rulings on R.S. 2477"). Congress's decision to perpetuate non-uniform standards provides support for the view that there is no "need for a uniform national rule." Wilson, 442 U.S. at 673, 99 S.Ct. 2529.
The second Wilson criterion is whether "application of state law would frustrate federal policy or functions." Id. As we discuss specific state law standards, we will advert to congressional intention and other indications of federal policy. To the
The third Wilson criterion, the "impact a federal rule might have on existing relationships under state law," id., points in favor of continued application of state law. Both right-of-way holders and public and private landowners faced with potential R.S. 2477 claims have an interest in preservation of the status quo ante. That is best accomplished by not changing legal standards. In Hodel, this Court observed that "R.S. 2477 rightholders, on the one hand, and private landowners and BLM as custodian of the public lands, on the other, have developed property relationships around each particular state's definition of the scope of an R.S. 2477 road." 848 F.2d at 1082-83. The same can be said of the existence of an R.S. 2477 road.
We therefore conclude that federal law governs the interpretation of R.S. 2477, but that in determining what is required for acceptance of a right of way under the statute, federal law "borrows" from long-established principles of state law, to the extent that state law provides convenient and appropriate principles for effectuating congressional intent. The applicable state law in this case is that of the State of Utah, supplemented where appropriate by precedent from other states with similar principles of law.
B. Specific Legal Issues
We turn now to the criteria governing recognition of a valid R.S. 2477 right of way. First we address burden of proof, and then we turn to substantive standards. For reasons explained in the previous section, we begin with the common law standard as developed in the law of the State of Utah, a standard which is based on continuous public use. We will then address arguments by the BLM and SUWA that, instead of the public use standard, we should adopt a "mechanical construction" standard, as set forth in the BLM administrative determinations, and that valid R.S. 2477 claims should further be limited by the BLM's proposed definition of "highway." Finally, we will address arguments by all parties regarding the meaning of the statutory term "not reserved for public uses."
We review the district court's legal determinations de novo. United States v. Telluride Co., 146 F.3d 1241, 1244 (10th Cir.1998).
1. Burden of proof
The district court correctly ruled that the burden of proof lies on those parties "seeking to enforce rights-of-way against the federal government." 147 F.Supp.2d at 1136. Under Utah law determining when a highway is deemed to be dedicated to the use of the public,
This allocation of the burden of proof to the R.S. 2477 claimant is consonant with federal law and federal interests. As the district court noted, "[T]he established rule [is] that land grants are construed favorably to the Government, that nothing passes except what is conveyed in clear language, and that if there are doubts they are resolved for the Government, not against it." 147 F.Supp.2d at 1136 (quoting Watt v. Western Nuclear, Inc., 462 U.S. 36, 59, 103 S.Ct. 2218, 76 L.Ed.2d 400 (1983), in turn quoting United States v. Union Pac. R.R. Co., 353 U.S. 112, 116, 77 S.Ct. 685, 1 L.Ed.2d 693 (1957)) (brackets in district court opinion). Other courts have applied this rule to R.S. 2477 cases, Adams v. United States, 3 F.3d 1254, 1258 (9th Cir.1993); United States v. Balliet, 133 F.Supp.2d 1120, 1129 (W.D.Ark.2001); Fitzgerald v. United States, 932 F.Supp. 1195, 1201 (D.Ariz.1996), and we agree. On remand, therefore, the Counties, as the parties claiming R.S. 2477 rights, bear the burden of proof.
2. The public use standard
Under the common law, the establishment of a public right of way required two steps: the landowner's objectively manifested intent to dedicate property to the public use as a right of way, and acceptance by the public.
The rules for "acceptance" of a right of way by the public (whether under R.S. 2477 or otherwise) varied somewhat from state to state. Some states required official action by the local body of government before a public highway could be deemed "accepted." E.g., Tucson Consol. Copper Co. v. Reese, 12 Ariz. 226, 100 P. 777, 778 (Ariz.Terr.1909); Barnard Realty Co. v. City of Butte, 48 Mont. 102, 136 P. 1064, 1067 (1913) (legislature amended state law in 1895 to prohibit establishment of a public road by use, unless accompanied by an action on the part of public authorities). In such states, the appropriation of public funds for repair was generally deemed sufficient to manifest acceptance by the public body. Angell & Durfee on Highways, supra, at 181-82. In most of the western states, where R.S. 2477 was most significant, acceptance required no governmental act, but could be manifested by continuous public use over a specified period of time.
In the leading Utah decision interpreting R.S. 2477, the state Supreme Court explained:
Lindsay Land & Live Stock Co. v. Churnos, 75 Utah. 384, 285 P. 646, 648 (1929), cited in Hodel, 848 F.2d at 1082 n. 13. Looking to the Utah statutes in force at the time the right of way was claimed to have been accepted, the Court held that the period of user necessary for acceptance of an R.S. 2477 right of way was ten years. Id., citing Laws of Utah 1886, ch. 12, § 2 ("A highway shall be deemed and taken as dedicated and abandoned to the use of the Public when it has been continuously and uninterruptedly used as a Public thoroughfare for a period of ten years.").
Acceptance of an R.S. 2477 right of way in Utah thus requires continuous public use for a period of ten years. The question then becomes how continuous and intensive the public use must be. The decisions make clear that occasional or desultory use is not sufficient. In the decision just quoted, the Utah Supreme
The requirements for establishing acceptance of a right of way by user cannot, we think, be captured by verbal formulas alone. It is necessary to set forth the factual circumstances of the decided cases, both those recognizing and those not recognizing the validity of R.S. 2477 claims. On remand, the district court will have the difficult task of determining whether the Counties have met their burden of demonstrating acceptance under these precedents.
In Lindsay Land & Live Stock, the Utah Supreme Court described the evidence bearing on usage of the claimed road in great detail:
Id. at 647. Notwithstanding this extensive evidence of public use, the owner of the lands over which the route was located contended "that the use of the road, as proved, was not such as amounted to a continuous and uninterrupted use as a public thoroughfare." Id. at 648. The court responded:
Id. The court thus concluded that the trial court "was justified in finding that the road had been continuously and uninterruptedly used as a public thoroughfare for more than ten years." Id. at 648-49.
We think it significant that the Utah Supreme Court stated that if the claim rested "alone upon the use of the road for sawmill purposes, or for mining purposes, or for the trailing of sheep, the question would be more difficult." Id. at 648. But where the "road was unquestionably used very extensively by the general public for general purposes," the court concluded an R.S. 2477 right of way had been established. Id. At the opposite extreme, in Cassity v. Castagno, 10 Utah.2d 16, 347 P.2d 834,
Jeremy v. Bertagnole, 101 Utah. 1, 116 P.2d 420 (1941), is similarly instructive. In that case, the owner of the servient estate conceded that a right of way had been established by prescription, and the litigation concerned the width of that right of way. Id. at 421. Nonetheless, the court discussed at length the evidence in support of that legal conclusion. While technically relevant only to scope, this discussion provides guidance regarding the quality and quantity of evidence the Utah courts expect for proof of historical use. According to the Utah Supreme Court, "some thirteen witnesses testified to the use of the road for vehicular and other traffic between 1877 and 1900, and an equal number as to its use since the latter date." Id. at 423. The testimony covered the period from the 1870s until the time of trial, around 1940. Id. at 424. The court noted, "True, such testimony does not reveal that any witness used the road at weekly, monthly, or even yearly intervals over a period of ten years." Id. But the court described the "inference" as "clearly a reasonable one" that the route had been used "for a number of years in excess of that required," and that the evidence was sufficient to prove "the existence for many years of this roadway, openly used as the public might desire for vehicular, pedestrian, and equestrian traffic." Id.
In Leo M. Bertagnole, Inc. v. Pine Meadow Ranches, 639 P.2d 211, 213 (Utah 1981), the Utah Supreme Court upheld a finding of a public road by prescription where there was "evidence of the use of the road by large flocks of sheep, sheep camps, trucks, jeeps, heavy equipment, hunters, fishermen, picnickers, campers, and sightseers" over a ten year period.
In Boyer v. Clark, 7 Utah.2d 395, 326 P.2d 107 (1958), the Supreme Court of Utah reversed a lower court judgment which had concluded that a "wagon trail" near Coalville, Utah, was not an R.S. 2477 right of way. The land over which the road crossed had passed into private hands in 1902, and the road had never been maintained at public expense. The evidence recited by the court suggests that the public use was less extensive than that in the previously discussed cases. The principal witness, who was 84 years old at the time of trial, testified that he "had used the road for over 50 years when hauling coal, crossing the open range, driving cattle, sheep and courting the girl he later married," and that "anyone who wanted to" used the road for similar purposes. Id. at 108. An unspecified number of "other witnesses" testified that the use of the road was not changed when the property became private and that "anyone who wanted to use it to go deer hunting or visiting with people living in the vicinity or to dances which were held in Grass Creek did so." Id. Apparently, "[t]he use of the road was not great because comparatively few people had need to travel over it, but those of the public who had such need, did so." Id. The Supreme Court held:
Id. at 109.
In other jurisdictions we find decisions of a similar nature. In Wallowa County v. Wade, 43 Or. 253, 72 P. 793 (1903), an early decision involving a claimed route across land homesteaded around the turn of the century, the Oregon Supreme Court affirmed a decree recognizing a public road and enjoining the defendant landowner from maintaining a fence across it. The evidence showed that "the road was used continuously by the public as a highway for more than 10 years prior to the construction of the fence." Id. at 793. Witnesses testified that "all this time it has been a plain, open, well-beaten track, and has been traveled by all the people that live in that section of the county; that it is the only road used by them in going to and returning from the county seat." Id. In Dillingham Commercial Co., Inc. v. City of Dillingham, 705 P.2d 410, 414 (Alaska 1985), the Alaska Supreme Court recognized an R.S. 2477 right of way on the basis of the uncontradicted testimony of two witnesses that the route had been used by the public for beach access and for hauling freight into town. In Ball v. Stephens, 68 Cal.App.2d 843, 158 P.2d 207, 211 (1945), the California District Court of Appeal recognized an R.S. 2477 claim along a route used originally by horse and wagon and later "almost daily" by motor vehicles. The court summed up the evidence as follows:
By contrast, in Luchetti v. Bandler, 108 N.M. 682, 777 P.2d 1326 (App.1989), the New Mexico Court of Appeals affirmed a trial court decision rejecting an R.S. 2477 claim for a right of way, despite testimony by at least four witnesses that they and other members of the public used the road for picnics, hiking, hunting, and access to a spring.
3. The "mechanical construction" standard
The BLM and SUWA argue that mere public use cannot suffice to establish an R.S. 2477 right of way. Instead, following the BLM administrative determinations in this case, they contend that R.S. 2477 requires that "[s]ome form of mechanical construction must have occurred to construct or improve the highway." BLM R.S. 2477 Administrative Determination(s) — San Juan County Claims at 5, Aplt.App. Vol. 1 at 249 ("San Juan Admin. Det."); Garfield Admin. Det. at 4, Aplt.App. Vol. 2 at 307; see also Kane Admin. Det. at 5, Aplt.App. Vol. 2 at 371. "A highway right-of-way cannot be established by haphazard, unintentional, or incomplete actions. For example, the mere passage of vehicles across the land, in the absence of any other evidence, is not sufficient to meet the construction criteria of R.S. 2477 and to establish that a highway right-of-way was granted." "Evidence of actual construction may include such things as road construction or maintenance records, aerial photography depicting characteristics of physical construction, physical evidence of construction, testimony or affidavits affirming that construction occurred, official United States Government maps with legends showing types of roads, as well as other kinds of information." Id.
The BLM and SUWA cite no pre-1976 authority for this interpretation of R.S. 2477, and we are aware of none. No judicial or administrative interpretation of the statute, prior to its repeal, ever treated "mechanical construction" as a pre-requisite to acceptance of the grant of an R.S. 2477 right of way. The standard has no support in the common law, which, as we have noted,
The Utah Supreme Court has recognized the validity of an R.S. 2477 claim despite the fact that the road in question "has never been maintained at public expense," and without any mention of evidence of construction. Boyer v. Clark, 7 Utah.2d 395,
The few decisions in which a construction standard is discussed rejected it. In Nicolas v. Grassle, 83 Colo. 536, 267 P. 196, 197 (1928), the Colorado Supreme Court held:
In Wilkenson v. Dep't of Interior, 634 F.Supp. 1265, 1272 (D.Colo.1986), the federal district court stated:
(quoting Leach v. Manhart, 102 Colo. 129, 77 P.2d 652, 653 (1938)); accord, Barker v. County of La Plata, 49 F.Supp.2d 1203, County & Wade, 43 Or. 253, 72 P. 793, 794 (1903) (affirming R.S. 2477 claim despite the servient landowner's showing that "the road over the land inclosed by him had never been worked or improved by the county authorities, or under their direction"); Fitzgerald v. Puddicombe, 918 P.2d 1017, 1020 (Alaska 1996) ("[n]or does the route need to be significantly developed to qualify as a `highway' for RS 2477 purposes"); Ball v. Stephens, 68 Cal.App.2d 843, 158 P.2d 207, 209 (1945) (recognizing R.S. 2477 right of way even though "it was never improved or maintained by the county").
Consistent with our conclusion that acceptance of the grant of R.S. 2477 rights of way is governed by long-standing principles of state law and common law, we
The BLM and SUWA defend their proposed "mechanical construction" standard primarily as dictated by the "plain meaning" of R.S. 2477, which grants the rights of way for the "construction" of highways. The BLM quotes the definition of "construction" from an 1860 edition of Webster's Dictionary as "[t]he act of building, or of devising and forming, fabrication." BLM Br. 48. SUWA quotes a similar definition from an 1865 edition of Webster's as:
SUWA Br. 21. That same dictionary supplies these synonyms: to "build; erect; form; make; originate; invent; fabricate." Id.
We are not persuaded. First, it would take more semantic chutzpah than we can
In addition to their "plain language" argument, the BLM and SUWA seek support in Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U.S. 1, 17 S.Ct. 7, 41 L.Ed. 327, (1896), which addressed the meaning of the term "construction" in a different section of the same statute that contained R.S. 2477. That section dealt with grants of rights of way for "the construction ... of ditches." Id. at 17, 17 S.Ct. 7 (quoting Act of July 26, 1866, Ch. 262, § 9, 14 Stat. 251, 253 (later codified as R.S. 2339)). In Bear Lake, the Court held that no right of way vests against the government "from the mere fact of such possession, unaccompanied by the performance of any labor thereon.... It is the doing of the work, the completion of the well, or the digging of the ditch ... that gives the right to use the water in the well, or the right of way for the ditches of the canal upon or through the public land." 164 U.S. at 18-19, 17 S.Ct. 7. The BLM and SUWA argue that the same word, "construction," must be given the same meaning in two sections of what was originally the same statute.
Again, we are unpersuaded. The dispute in Bear Lake was over which of two creditors had priority with respect to a canal owned by the debtor: the canal construction company, which had a lien on the product of its labors, or the mortgage company, which held a lien on the debtor's real property. The outcome turned on whether the debtor acquired title to the canal property when it began the project (in which case the mortgage company would prevail), or upon completion of the canal (in which case the construction company enjoyed a priority). The Court held that title did not vest until the canal had been dug, just as an R.S. 2477 right of way does not vest until the road is formed, by user or otherwise. The type or degree of work expended on the ditch was immaterial to the decision. It so happens that canals, unlike roads, cannot be created by mere use, so the question with which we are concerned
SUWA also points to a number of instances in which the Utah legislature appropriated funds for the construction of roads, specifying work that included surveying, cleaning, grading, ditching, macadamizing, and so forth. But that some roads were built to a higher level of engineering specifications does not mean that other roads, formed by repeated use, were not "constructed."
SUWA supplements its argument that "construction" must refer to "resource-intensive construction," SUWA Br. 28, by reference to the probable intention of Congress in granting rights of way for highways. According to SUWA, Congress enacted R.S. 2477 "to spur investment in and development of internal improvements" by "grant[ing] a permanent right-of-way in exchange for the `construction' of highways." Id. at 33. "Like other land-grant statutes, R.S. 2477 provided an incentive and reward for the expenditure required to construct a highway." Id. at 28. The trouble with this theory is that those who made the investment in the road did not receive any rights to it; R.S. 2477 rights of way are owned by the public and not by the individuals who "constructed" the highways. A more probable intention of Congress was to ensure that widely used routes would remain open to the public even after homesteaders or other land claimants obtained title to the land over which the public traveled. That explanation of congressional intent is more consistent with the common law interpretation than with the Appellees' proposed substitute.
We must not project twenty-first (or twentieth) century notions of "mechanical construction" onto an 1866 statute. Historical records of early southern Utah road "construction" indicate that work was performed as economically as possible: if wagons could be conveyed across the land without altering the topography, there was no need for more extensive construction work. Typically, little more was done than move boulders, clear underbrush or trees, or dig the occasional crude dugway. See Jay M. Haymond, A Survey of the History of the Road Construction Industry in Utah 2 (1967) (unpublished M.A. thesis, Brigham Young University) (on file with the University of Utah Marriott Library) ("road building in the early days consisted only of removing rocks and stumps and filling in holes"). This is one reason an early court rejected the argument that "work must be done on the road" to constitute acceptance of an R.S. 2477 grant. Nicolas v. Grassle, 83 Colo. 536, 267 P. 196, 197 (1928). "If access is feasible without work with pick and shovel no such work is necessary, and it would be a mistake to hold that action by any governmental authority is required." Id. See also Ball v. Stephens, 68 Cal.App.2d 843, 158 P.2d 207, 210 (1945) (the disputed route "came to be a road by means of being used as a road and in the same fashion that many other mountain roads have come into existence"); id. at 211 (the land "is somewhat flat and vehicles could be and were driven across it without the necessity of
For this reason, we are skeptical that there is much difference, in practice, between a "construction" standard (if applied in light of contemporary conditions) and the traditional legal standard of continuous public use. If a particular route sustained substantial use by the general public over the necessary period of time, one of two things must be true: either no mechanical construction was necessary, or any necessary construction must have taken place. It is hard to imagine how a road sufficient to meet the user standard could fail to satisfy a realistic standard of construction. Thus, we do not necessarily disagree with the BLM's statement that:
Aplt.App. Vol. 1 at 249; Aplt.App. Vol. 2 at 307, 452. The standard for acceptance of an R.S. 2477 right of way in Utah is "continued use of the road by the public for such length of time and under such circumstances as to clearly indicate an intention on the part of the public to accept the grant." Lindsay Land & Live Stock Co. v. Churnos, 75 Utah. 384, 285 P. 646, 648 (1929). As the precedents in Utah and other states demonstrate, a road may be created intentionally, by continued public use, without record evidence of what the BLM defines as "mechanical construction." Such action is not haphazard, unintentional, or incomplete, though it might lack centralized direction; and the legal standard is not satisfied "merely" by evidence that vehicles may have passed over the land at some time in the past. That is a caricature of the common law standard.
Indeed, contrary to the apparent assumptions of the parties, it is quite possible for R.S. 2477 claims to pass the BLM's "mechanical construction" standard but to fail the common law test of continuous public use. See Town of Rolling v. Emrich, 122 Wis. 134, 99 N.W. 464, 464 (1904) (rejecting R.S. 2477 claim despite evidence that two men "cut out a road ... through the 80 acres in question to haul logs upon"); Roediger v. Cullen, 26 Wn.2d 690, 175 P.2d 669, 674, 677 (1946) (rejecting R.S. 2477 claim despite evidence of construction and repair by members of the community). For example, according to the BLM administrative decision, San Juan County route 507, in the Hart's Point area, shows signs of mechanical construction: bulldozer grouser marks, berms, pushed trees and debris, and cut banks, San Juan Admin. Det. at 11-12, Aplt.App. Vol. 1 at 255-56; and a witness testified that the road was constructed by mining companies in the 1950s, using bulldozers, for the purpose of accessing seismic lines. Id. at 11, 16. Yet the BLM found that "the use of this route by the public has been at most sporadic and infrequent." Id. 18.
We therefore see no persuasive reason not to follow the established common law and state law interpretation of the establishment of R.S. 2477 rights of way.
4. Definition of "highway."
R.S. 2477 grants "the right of way for the construction of highways over public lands, not reserved for public uses." At common law the term "highway" was a broad term encompassing all sorts of rights of way for public travel. In his magisterial Commentaries on American Law, Chancellor James Kent wrote that "Every thoroughfare which is used by the public, and is, in the language of the English books, `common to all the king's subjects,' is a highway, whether it be a carriage-way, a horse-way, a foot-way, or a navigable river." James Kent, 3 Commentaries on American Law 572-73, *432 (10th ed. 1860). Accord, Isaac Grant Thompson, A Practical Treatise on the Law of Highways 1 (1868) ("A highway is a way over which the public at large have a right of passage, whether it be a carriage way, a horse way, a foot way, or a navigable river"); Joseph K. Angell & Thomas Durfee, A Treatise on the Law of Highways 3-4 (2d ed. 1868) ("Highways are of various kinds, according to the state of civilization and wealth of the country through which they are constructed, and according to the nature and extent of the traffic to be carried on upon them, — from the rude paths of the aboriginal people, carried in direct lines over the natural surface of the country, passable only by passengers or pack-horses, to the comparatively perfect modern thoroughfare."). The Department of the Interior expressly adopted this interpretation in a decision in 1902:
The Pasadena and Mt. Wilson Toll Road Co. v. Schneider, 31 Pub. Lands Dec. 405, 407-408 (1902). Under traditional interpretations, therefore, the term "highway" is congruent with and does not restrict the "continuous public use" standard: any route that satisfies the user requirement is, by definition, a "highway."
The BLM and SUWA urge us to adopt a more restrictive definition. In its administrative determinations in this case, the BLM offered the following definition of the statutory term "highways":
San Juan Admin. Det. at 5, Aplt.App. Vol. 1 at 249; see also Garfield Admin. Det. at 5, Aplt.App. Vol. 2 at 308; Kane Admin. Det. at 5, Aplt.App. Vol. 2 at 371. The district court found this interpretation by the BLM "to be both reasonable and persuasive" and concluded that "BLM did not err in its interpretation of the term `highways' in R.S. 2477." 147 F.Supp.2d at 1143-44.
For purposes of this case, we need not consider the broader implications of the common law definition, because this case involves exclusively claims for roads appropriate to vehicular use.
Cases interpreting R.S. 2477, and analogous cases involving claims to public easements across private land under state law, occasionally refer to a lack of identifiable destinations as one factor bearing on the ultimate question of continuous public use. For example, in finding a valid R.S. 2477 right of way in Lindsay Land & Live Stock Co., the Utah Supreme Court noted that the "road connected two points between which there was occasion for considerable public travel," 285 P. at 648, while in Moulton v. Irish, 218 P. at 1055, the Montana Supreme Court noted as one reason to reject an R.S. 2477 claim the fact that the road "did not lead to any town, settlement, post office, or home." See also Dillingham Commercial Co., 705 P.2d at 414 ("a right of way created by public user pursuant to 43 U.S.C. § 932 connotes definite termini").
It is far from clear that this factor has much practical significance. None of the contested rights of way were rejected by the BLM solely on the basis of a lack of identifiable destinations. It is hard to imagine a road satisfying the "continuous public use" requirement that did not "lead anywhere." Moreover, given the BLM's concession that "a highway can allow public access to a scenic area, a trail head, a business, or other place used by and open to the public," it is hard to imagine much of a road that would not satisfy the standard.
We therefore hold that, on remand, the district court should consider evidence regarding identifiable destinations as part of its overall determination of whether a contested route satisfies the requirements under
5. 1910 Coal Withdrawal
R.S. 2477 rights of way may be established only over lands that are "not reserved for public uses." The BLM determined that a 1910 coal withdrawal "reserved for public use" over 5.8 million acres of land in Utah, including land over which Garfield County claimed three rights of way. Garfield Admin. Det. at 9, 19, 32, and 38, Aplt.App. Vol. 2 at 312, 322, 335, and 341. It therefore invalidated those rights of way on the ground that they were not established "at a time when the lands were open for establishment of a claim under R.S. 2477." Id. at 32. The district court affirmed. We must decide whether the coal withdrawal constitutes a "reserv[ation] for public use" under R.S. 2477. The text of the coal withdrawal states:
a. Why the 1910 Coal Withdrawal was not a "reservation"
It is important to note at the outset that "withdrawal" and "reservation" are not synonymous terms. Although Congress and the Supreme Court have occasionally used the terms interchangeably, see 1 American Law of Mining § 14.01 n. 1 (2d ed.2004), that does not eliminate their distinct meaning. A withdrawal makes land unavailable for certain kinds of private appropriation under the public land laws. Charles F. Wheatley, Jr., II Study of Withdrawals and Reservations of Public Domain Lands A-1 (1969) (report to Public Land Law Review Commission). Just as Congress, pursuant to its authority under the Property Clause, can pass laws opening the public lands to private settlement, so also it can remove the public lands from the operation of those same laws. That is what a withdrawal does. It temporarily suspends the operation of some or all of the public land laws, preserving the status quo while Congress or the executive decides on the ultimate disposition of the subject lands. Id.
A reservation, on the other hand, goes a step further: it not only withdraws the land from the operation of the public land laws, but also dedicates the land to a particular public use. As the first edition of Black's Law Dictionary defines it: "In public land laws of the United States, a reservation is a tract of land, more or less considerable in extent, which is by public authority withdrawn from sale or settlement, and appropriated to specific public uses; such as parks, military posts, Indian lands, etc." Black's Law Dictionary 1031 (1st ed. 1891). Thus, a reservation necessarily includes a withdrawal; but it also goes a step further, effecting a dedication of the land "to specific public uses." See also 63C Am.Jur.2d Public Lands § 31 (2005) ("Public land is withdrawn when the government withholds an area of federal land from settlement, sale, location, or entry under some or all of the general land laws in order to limit activities.... `Reserved' lands have been expressly withdrawn from the public domain by statute, executive order, or treaty and dedicated as a park, military post, or Native American land or for some other specific federal use.") (footnotes omitted). The text of R.S. 2477 reinforces this point by requiring
The text of the Coal Lands Act of 1910, subject to which President Taft issued the 1910 coal withdrawal, adheres to this distinction. The Act applied to all "[u]nreserved public lands ... which have been withdrawn or classified as coal lands." 30 U.S.C. § 83. The use of the phrase, "unreserved public lands which have been withdrawn," indicates that lands could be "withdrawn" or classified as coal lands under the 1910 act and yet remain "unreserved."
Turning to the text of the withdrawal, we read that the subject lands were "withdrawn from settlement, location, sale or entry, and reserved for classification and appraisement with respect to coal values." On its face, "withdrawn ... and reserved" sounds like a reservation. But just because a withdrawal uses the term "reserved" does not mean that it reserves land "for public uses." We must decide whether "reserved for classification and appraisement with respect to coal values" is equivalent to "reserved for public uses."
We conclude that it is not. As noted above, land is "reserved" when it is dedicated to a specific public purpose. This is not what the coal withdrawal did. Instead, the coal withdrawal narrowly, and temporarily, removed potential coal lands from certain kinds of private appropriation. This is evident from its historical context. In the early 1900s, the nation confronted a coal shortage which coincided with the discovery of "widespread fraud in the administration of federal coal lands." Amoco Prod. Co. v. S. Ute Indian Tribe, 526 U.S. 865, 868, 119 S.Ct. 1719, 144 L.Ed.2d 22 (1999). Unscrupulous characters would obtain land under other pretenses, only to use the land for coal mining without having to pay for the real value. Due to a lack of funding, the Department of the Interior had to rely on affidavits of entrymen to determine whether lands were valuable for coal or not. This allowed railroads and other coal interests to obtain vast tracts of coal lands under railroad and agricultural grants for a nominal price. President Roosevelt "responded to the perceived crisis by withdrawing 64 million acres of public land thought to contain coal from disposition under the public land laws." Id. at 869, 119 S.Ct. 1719. This gave the United States an opportunity "to reexamine and reclassify lands which it thought might have exceptional value, thus preventing them from being disposed of at a price which took no account of that value." Confederated Bands of Ute Indians v. United States, 112 Ct.Cl. 123, 1948 WL 5025, *5 (Ct.Cl.1948) (unpublished). President Roosevelt's order did not, however, reserve the withdrawn lands for a public use. As a 1924 Department of the Interior decision explained: "Temporary withdrawals made prior to ... classification or reservation merely for the purpose of withholding the land from further disposition under the public land laws until further investigation has been made and a decision arrived at as to the character of the land and its chief value, have no effect as raising any presumption as to the character of the land, nor do they dedicate it to any special purpose or reserve it for any special form of disposal." George G. Frandsen, 50 Pub. Lands Dec. 516, 520 (1924).
President Roosevelt's broad withdrawal outraged homesteaders and other western interests, as even those homesteaders who had made a valid entry lost the opportunity to obtain a patent unless they could prove that the land was not valuable for coal. Amoco Prod., 526 U.S. at 869, 119 S.Ct. 1719. Congress thus crafted a compromise with the Coal Lands Acts of 1909 and 1910. The 1909 Act protected the rights of homesteaders who had entered
Thus, not only were the lands subject to the coal withdrawal not "reserved" for any particular "public use"; they remained open to settlement, sale, and entry under several important public land laws, including the homestead laws, the desert-land law, and certain mining laws. See Act of June 22, 1910, ch. 318, 36 Stat. 583 (providing that "unreserved public lands ... which have been withdrawn or classified as coal lands ... shall be subject to appropriate entry under the homestead laws ... [and] the desert-land law, to selection under ... the Carey Act, and to withdrawal under ... the Reclamation Act").
Indeed, because R.S. 2477 provided one of the most important means of establishing access to homestead, desert-land, and mining claims, it would make little sense for Congress to open public lands to private claims but forbid settlers to construct highways to access those claims. As the BLM argued in prior litigation, in response to the argument that withdrawals under the Taylor Act in the 1930s precluded the establishment of R.S. 2477 rights of way:
Southern Utah Wilderness Alliance, IBLA 90-375, Answer of the Bureau of Land Management to Additional Statement of Reasons of Appellants, at 6 (1990). Common sense also tells us in this case that the narrow 1910 coal withdrawal, which permitted widespread settlement under the homestead, desert-land, and mining laws, was not meant to cut off the right to establish access to those claims.
b. Humboldt County v. United States
The BLM seeks support for its position from the Ninth Circuit's decision in Humboldt County v. United States, 684 F.2d 1276 (9th Cir.1982). In that case, Humboldt County asserted an R.S. 2477 right of way over land withdrawn under Executive Order No. 6910, issued in 1934, which withdrew "from settlement, location, sale or entry, and reserved for classification" all of the vacant, unreserved, and unappropriated public land in twelve western states, including Nevada (in which Humboldt County lies) and Utah. See Executive Withdrawal Order, 55 I.D. 205, 207 (1935). The Ninth Circuit focused its attention on what it saw as the "crucial language" in R.S. 2477: the phrase "public lands." 684 F.2d at 1281. It then reasoned syllogistically: (1) "public lands" are lands "subject to sale or other disposal under general laws"; (2) lands subject to Executive Order No. 6910 were "not subject to sale or disposition"; (3) therefore, lands subject to Executive Order 6910 were "not `public lands.'" Id.
We find this argument based on Humboldt unpersuasive for several reasons. First, neither the BLM nor SUWA has argued that the lands subject to the 1910 coal withdrawal were not "public lands" for purposes of R.S. 2477. Instead, they have argued that the coal withdrawal "reserved [the lands] for public uses." Humboldt says nothing about whether withdrawals "reserve" land for public use; it therefore provides little, if any, support for the Appellees' position.
Moreover, even if the analysis underlying Humboldt were applied to lands subject to the coal withdrawal, it would not lead to the same conclusion. For, according to Humboldt, lands are "public" if they are "subject to sale or other disposal under general laws." Id. And lands covered by the coal withdrawal remained subject to sale and disposition under the homestead and desert-land laws, as well as under the metalliferous mining laws. Thus, on Humboldt's own terms, lands subject to the coal withdrawal are "public lands" available for establishment of rights of way under R.S. 2477.
Finally, it is worth pointing out that in prior litigation the BLM itself has rejected Humboldt. In a 1990 appeal before the Interior Board of Land Appeals, the BLM denounced the "convoluted argument that the public lands in the west were withdrawn from the operation of R.S. 2477 by Executive Order No. 6910." Southern Utah Wilderness Alliance, IBLA 90-375, Answer of the Bureau of Land Management
In sum, we conclude that the 1910 coal withdrawal was not a "reservation" for purposes of R.S. 2477. The withdrawal did not dedicate the subject lands to a specific "public use," but instead left the land open to private appropriation, while withholding it from appropriation as a coal resource.
This case is REMANDED to the district court for a de novo proceeding, in accordance with this opinion. The parties shall be permitted to introduce evidence including, but not limited to, the administrative record before the BLM in making its determinations. In that proceeding, the Counties will bear the burden of proof on their R.S. 2477 claims. The district court shall determine whether the road work undertaken by the Counties in 1996 constituted a trespass, whether the Counties have a valid R.S. 2477 claim with respect to the fifteen disputed routes, and whether Kane County exceeded the scope of its right of way with respect to the Skutumpah Road.
As amended, this section now provides:
43 U.S.C. § 2.
Also relevant are 43 U.S.C. § 1457, which states, "The Secretary of the Interior is charged with the supervision of public business relating to the following subjects and agencies: . . . 13. Public lands, including mines," and 43 U.S.C. § 1201, which states, "The Secretary of the Interior, or such officer as he may designate, is authorized to enforce and carry into execution, by appropriate regulations, every part of the provisions of Title 32 of the Revised Statutes not otherwise specially provided for." Title 32 of the Revised Statutes originally consisted of R.S. §§ 2207-2490.
The Utah Supreme Court held a nearly identical earlier version of this statute applicable to R.S. 2477 claims in Lindsay Land & Live Stock Co. v. Churnos, 75 Utah. 384, 285 P. 646, 648 (1929), relying on Laws of Utah 1886, ch. 12, § 2 ("A highway shall be deemed and taken as dedicated and abandoned to the use of the Public when it has been continuously and uninterruptedly used as a Public thoroughfare for a period of ten years.").