PLSO The Oregon Surveyor March April 2020

18 The Oregon Surveyor  | Vol. 43, No. 2 was a standing congressionally approved offer of dedication, whichwas operative at all times between 1866 and 1976, the ISC recognized, public acceptance of that offer was necessary, to make that federal stat- ute applicable to any given location, but that acceptance required only very basic public road usage, thus countless roads became legally public, even though no one realized they were public, creating a vast web of undocumented public rights, held by states and counties, encumbering the western landscape. In effect, RS 2477 en - abled plain citizens to put in place rights of a genuinely public nature, through the power of federal law, operating in tan- dem with their own privately conducted acts of road development and road use, without the approval, or even the knowl- edge, of any personnel at the county or state level, essentially forcing such author- ities to take responsibility for a network of roads they had not participated in cre- ating. During the late Nineteenth Century and the early Twentieth Century however, the ISC was of course fully aware, all of the western states came into existence, and each one of them soon began to enact statutes pertaining to the subject of ded- ication and acceptance, many of which were applicable to those routes of trav- el that had been federally authorized by virtue of RS 2477. Thus began the era of interaction between federal law and state law, in the context of public road develop- ment and establishment in the western portion of our nation, which has proven to be intensely problematic, introducing legal complexities that our judicial system continues to struggle to resolve. “Whether anRS 2477 right-of-way has been established” in any given location, the ISC proceeded to inform the litigants, “is de- pendent upon state lawpertaining to road creation”, cognizant that once any partic - ular road became a county road through the operation of RS 2477 it clearly became a valid public right-of-way, in the formof a publicly held easement, subject to all rel- evant rules regarding road use derived from state law, and typical use of each such road was thus governed by state law from that point forward, regardless of whether the land through which the road passed remained federal or became private. In the view taken by the ISC, any suggestion that state law, once it came into existence, could play no role whatsoever in county road establishment related to RS 2477, was simply nonsensical, as well as being contrary to the spirit of federal law embodied in RS 2477, since Congress had clearly envisioned in 1866 that state law would subsequently arise through- out the western territories, and Congress deliberately left the RS 2477 grant exceed- ingly open in its terms, in anticipation that state law relating to public road creation and adoption would soon be developed, which did in fact occur, just as expected. In addition, federal courts have never de- nied the relevance or efficacy of state law relating to dedication and acceptance of county roads, the ISCpointedout, observing that there can be no valid objection to the application of “long established principles of state law” in the county road establish- ment context, when those principles are applied in a manner which aids in “effec - tuating congressional intent” to facilitate formation of a western network of pub- lic roads, as that intent was manifested in RS 2477. Because neither RS 2477 nor any other federal law suggests that Congress intended in 1866 to prohibit all forth- coming state law from playing any role in county road creation, development or adoption, the ISC concluded, and indeed any such intention would have been quite perverse, state and county personnel, and state and federal courts alike, are all au- thorized to take state law on the topic of road dedication and acceptance into con- sideration, when engaged in ascertaining the validity of assertions of county road establishment pursuant to RS 2477, such as thosemade by Nemeth, with which the Shoshone County Board was confronted in 2016. Thus the lower court judge had erred, the ISC determined, in dismissing Nemeth’s request for judicial evaluation of the RS 2477 status of his access road, because Nemeth had in fact done exact- ly what the law expects any citizen to do under such circumstances, and he was therefore entirely worthy of the partic- ular form of assistance with his RS 2477 quest which he had filed his legal action to obtain. The refusal in 2017 of the Shoshone Coun- ty Board to take any steps to aid Nemeth does not appear to have been due to any animosity or disdain toward him, instead it was evidently the direct and natural con- sequence of the smackdown which the county had experienced at the hands of a federal judge in the Eagle Creek case. As we have seen, in 2009 county personnel responded appropriately when they were asked by private parties to support the ex- istence of an RS 2477 right-of way in the Eagle Creek area, by assembling all rele- vant historical evidence and challenging federal resistance to the existence of the purported county right-of-way in federal court. After a 3 year investment of county resources in that effort however, the case ended unsuccessfully, as in 2012 a feder- al judge refused to allow Idaho state law pertinent to RS 2477, which the county had sought to leverage, to displace feder- al law, specifically the stern parameters of the QTA. So it was not at all surprising that county personnel, having been chastened in federal court just 5 years earlier, were highly reluctant in 2017 to plunge into an- other comparable battle, being convinced as they were that Idaho law was incapa- ble of enabling them to achieve victory in any RS 2477 case in the QTA forum. The controversy which had erupted between Nemeth and the county however, the ISC realized, was not over the legal status of Nemeth’s access route, a matter which clearly could not be fully resolved in the state court system, due to the presence of a federal property interest, instead the dispute between Nemeth and the County Board was over proper implementation of the Idaho road validation process, which was purely a product of statutory law at the state level. Responding to the county’s allegation that the Idaho road validation process had been rendered useless by a federal judge, during the adjudication of the Eagle Creek case under the QTA, the ISC stated that the real issue raised by the county’s decision to decline to assist Nemeth was “whether the QTA has ef- fectively stripped Idaho of authority (as maintained by the county) to validate a right-of-way over federal land,” before proceeding to confirm that the QTA “does not preclude state courts from validating federal land rights-of-way under RS 2477.” The trial judge had erroneously decided, just as had the Board, that any opposition to the federal position regarding the legal status of Nemeth’s access road was futile, the ISC then noted, but in reality the fed- eral position was perfectly logical, given the complete absence of any formal as- sertion on the part of the county, at any point in time, that the road in question was in fact a county road. Their desire to avoid suffering another defeat in an RS 2477 QTA action had caused the Board to refrain from properly ascertaining the true basis for the federal position, so there was no evidence that the Forest Service had ever actually disputed the existence of an RS 2477 right-of-way in the contest- ed location, and as a result the county was unable to prove that validation of the road at issue, through completion of Featured Article