PLSO The Oregon Surveyor March April 2020

Professional Land Surveyors of Oregon |  www.plso.org 15 boundary arises, either to pass through the remaining western federal land to reach a non-federal estate, or converse- ly, to take part in recreational or scientific activities upon federal property by cross- ing non-federal land. Access issues of several closely related yet distinct varieties can arise under the western scenario as it exists today, each of which has the capacity to make legal access problematic in various ways, wher- ever a pattern of alternating federal and non-federal land ownership exists: • Per RS 2477, undocumented public access rights exist in a given location, having developed while the subject property was still part of the unsold public domain, but once that property is patented and becomes private land it bears the onerous burden of an ambiguous public access easement, typically requiring verification or clarification through troublesome, bitter, expensive, and time consuming litigation. • Correspondingly, an absence of any legitimate RS 2477 right-of-way, upon land which has passed from the public domain and is now privately held, can allow the owner of that land to prevent access through his estate to any adjoining federal land, and can also have the effect of landlocking other privately held properties, potentially bringing the typically acrimonious right- of-way condemnation process into play. • Development of remote and long dormant private land often results in improvement of ancient trails or construction of new roads within that estate, thereby making adjoining federal land more readily accessible in the physical context, while not necessarily making that federal land legally accessible by means of such new routes or improved existing routes, often leading to intense legal controversy. • Changes in the status of federal land, such as a transfer of admin- istrative jurisdiction over that particular land from one depart- ment of the federal government to another, quite often alters federal regulation of the use of federal properties, bringing intensified federal scrutiny to existing road use, sometimes resulting in federally imposed road closures, typically in pursuance of environmental protec- tion objectives, thereby terminating access to either private land or other federal land, which had long been available. • Federal re-acquisition of land which was originally part of the public domain, but was conveyed into private ownership and stood as private property for many years, before being obtained once again by the federal government, frequently gives rise to serious legal questions regarding the validity of any undocu- mented existing routes of travel that pass through that land. Thus an endless tug-of-war endures, os- tensibly between those who want most if not all federal land to remain roadless- ly pristine, yet want to have direct legal access to that land, typically for recre- ational purposes, and those who believe the presence of federal land should never operate as an obstacle preventing access to private land, in accord with the now arcane congressional policy of the Nine- teenth Century, embodied in RS 2477. Before engaging in a detailed review of our featured federal case, which is set in northeastern Idaho, we will take notice of some comparable prior cases of the last few years fromother areas, each of which illustrates the kind of difficulty that sce - narios such as these can introduce. [See the full original article for reviews of cas- es from Arkansas, California, Montana, Oklahoma & Virginia, which have been omitted here.] As the foregoing five cases amply demonstrate, access to land contin- ues to rank among the most pervasively problematic aspects of the endlessly con- troversial relationship between public and private property rights, and in the west- ern states, even decades after its demise as an active federal statute supporting public right-of-way creation, RS 2477 re- mains at the heart of some of the most acrimonious litigation over access rights. Our final featured case of this series takes us to the Gem State, one of the most glo- riously wild regions of our country, to observe how county personnel, through a sequence of events and litigation which taxed public resources for a period of 8 years, learned an important lesson about the complexity of the legal implications of the seemingly simplistic law known as RS 2477. A goldmining boom, which occurred in 1883, resulted in a rush of people at that time to the spot once known as Eagle City, located at the junction of Eagle Creek and Prichard Creek in the Panhandle of Idaho. Some of the miners soon carved out a trail, running eastward from Eagle City to Belknap, Montana, where they ob- tained supplies, which came to be known as the Eagle Creek Trail, and a telegraph line was built, presumably more or less coincident with the route of that trail, to expedite communication between Eagle City and Belknap. The gold found at Eagle City very rapidly played out however, and by the end of 1884 only a few stragglers remained encamped there, still engag- ing in some limited mining activities on an individual basis. The first public high - way to penetrate the region was built in 1885, but rather than tracing the route of the Eagle Creek Trail, it followed a more direct and more readily useful route be- tween Belknap and Murray, in Shoshone County, Idaho, which had become a prom- inent site of mining activity, bypassing the forsaken site of Eagle City, since it had al- ready been effectively abandoned by its residents. In 1888, a GLO surveyor com- pleted amineral survey east of the former site of Eagle City, and in so doing he ob- served that a 12 mile long trail leading to Murray had become the primary route of access to that area, while the 20 mile long trail to Belknap still existed but had fallen into disuse, and the telegraph line which had once connected the defunct Eagle City site to the world had already been removed. In 1906, the Idaho Panhan- dle National Forest was federally created, encompassing within its vast boundaries the vicinity once occupied by the miners who had camped at Eagle City, but by then both mineral activity in that area and use of the Eagle Creek Trail as a mineral sup- ply route had long ended, thus the entire area became part of a federal reservation, which prevented the formation of any RS 2477 right-of-way thereafter. Throughout the Twentieth Century, the route of the old Eagle Creek Trail was ad- ministered by federal personnel as typical National Forest land, as for several decades no one suggested that it might legally be a public highway, potentially subject to improvement and standard vehicular us- age, based upon its use by miners prior to 1906. In 1997 however, federal personnel completed a “Watershed Environmental Assessment” covering land through which that trail passed, and the Forest Service published a decision on a proposal known as the “Eagle Creek Restoration Project,” continues on page 16 T Featured Article