PLSO The Oregon Surveyor March April 2020

Professional Land Surveyors of Oregon |  www.plso.org 19 the process set forth by state law, would produce any QTA litigation. Having clarified that trepidation over be - coming ensnarled in another losing effort in federal court had misguided the deci- sion making process conducted by the County Board in 2017, leading the Board to decline to engage in the statutorily de- fined road validation process on behalf of Nemeth, as county personnel had prop- erly done when called upon to do so by other citizens of Shoshone County in the past, the ISC next scrutinized the state - ments made by the federal judge in 2012, which had proven to be highly misleading and discouraging to county personnel, to explain why the county’s position based upon those statements was legally unten- able. In the Eagle Creek case, the federal judge shot down the RS 2477 case made by the county because the evidence of the formation of a public roadway which the county brought forth was weak, and in so doing that judge correctly informed the litigants that mere approval of a county road by county personnel, under any road validation process found in state law, was insufficient to overcome the capacity of federal law to shield federal property, as set forth in the QTA. In emphasizing that the QTA is essential to RS 2477 verifica - tion in the federal context however, and that federal law can never be bypassed, whenever a federal land rights interest is present, the federal judge “did not hold that county validation of a public right-of- way under Idaho law is improper,” the ISC reminded the litigants. Quite the contrary in fact, because where “no validation pro- ceeding was ever instituted” at the state or county level, the ISC specified, in accord with state law, the US has no obligation to view every route of travel passing through federal land as a public roadwhichwas es- tablished under RS 2477, nor are federal personnel required to presume that any given state or county regards every such road as a typical public road, when no doc- umentation of any such validation exists. Thus the ISC highlighted the fact that the statutorily mandated road validation pro- ceedings play a genuinely valuable role, providing open notice of the conclusions reached by state or county personnel to all the world, including federal personnel, even though the completion of such pro- ceedings, being a manifestation of state law, is not legally conclusive when a fed- eral land rights interest is present, as the federal judge had accurately indicated in 2012. Even given the fact that federal op- position toNemeth’s quest for legal access was potentially forthcoming, the ISC real- ized, statutory duties, imposed by state law, were triggeredwhenNemeth brought his access issues to the attention of the County Board and sought their assistance, so the Board had no option to arbitrarily foreclose the matter by simply taking no action, based upon suppositions or spec- ulation regarding Nemeth’s chances of success in a possible future QTA action. First the Board, and then the trial judge as well, had inappropriately let a citizen of Shoshone County down, when he gen- uinely needed assistance, by declining to collaborate with him in any manner and taking the position that no action in his aid was merited, just because in the Board’s estimation, or that of the Board’s legal ad- visors, Nemeth was pursuing a lost cause. The case which Nemeth sought to make was indeed hopeless, the ISC understood, if he were to be forced to turn to the QTA with no county support, regardless of the merit embodied in his contentions, be- cause as we have seen no individual has any legal standing to present proof in any federal courtroom that an RS 2477 right- of-way exists in any given location, due to the fact that the QTA is designed to allow only holders of non-federal title interests to challenge the federal government, and if the road at issue was in fact public, it was the county, rather than Nemeth, which held the relevant non-federal title, in the form of a public easement, pene- trating a federal reservation. Public road validation of some kind, emerging from county or state government at some level, is thus legally mandatory in the QTA con- text, the ISC recognized, although such validation constitutes an aspect of state law rather than federal law, because no individual such as Nemeth has any op- tion to proceed with any QTA litigation focused on RS 2477 independently, as federal law effectively requires any such person to obtain support from the pub- lic entity which holds the non-federal title to any given public right-of-way. In Nemeth’s case however, as previously indicated, the development of a QTA sce- nario was not a foregone conclusion, as both the members of the Board and the trial judge had mistakenly assumed, be- cause it remained equally possible that the Forest Service would simply choose not to attempt to legally combat the RS 2477 status of Nemeth’s access road, should it be deemed to be a legitimate county road in state court, making full adjudication of Nemeth’s case at the state court level piv- otal, the ISC noted. Having clarified that no evidence indicated that Nemeth had done anything to merit the disdain which the defendants had shown toward him, the ISC proceeded to point out that the evidence actually suggested that Nemeth had amuch better chance of success than did those who the county had partnered with in the Eagle Creek case. In that pri- or case, the usage dated from an earlier time period, but it was never substantial, and upon arising it had immediately gone into a state of rapid decline, rather than remaining consistent or escalating, and in addition, no definitive route location was ever established, as the various trails through the Eagle Creek area frequently shifted position, so none of them were ever mapped as distinct public routes. In Nemeth’s case however, although his access road did not come into existence until 1906, there was evidence that coun- ty personnel took part in building it, and that county funds were invested in its construction, plus the road had remained in virtually constant use ever since then, and it had even been shown and labeled as “a good motor road” on various his- torical maps, including certain federally producedmaps, for several decades. Both the Board and the trial judge had evident- ly allowed the failure of the Eagle Creek litigation to unjustly jaundice their per- spective upon all other RS 2477 scenarios, the ISC observed, leaving them incapable of recognizing that Nemeth’s access road, unlike the Eagle Creek Trail, had a realis- tic chance of garnering judicial approval, even in federal court, thus the dismissal on Nemeth’s case could not stand. While Nemeth and his legal team had managed to surmount and decimate the legal position taken by Shoshone County in defense of the County Board, and had thus prevailed in the eyes of the appel- late panel, resulting in an ISC reversal of the lower court’s dismissal of Nemeth’s case, he was still far from being home free or on track for certain success, be- cause the trial judge was not obligated to issue a decree favorable to him. Although Nemeth brought forth certain evidence revealing that his RS 2477 assertion was not baseless, and the ISC ruling in this case requires a definitive decision on the legal status of his access road, the trial judge might well decide that the road in question was never genuinely public, and nothing in Idaho law requires any coun- ty support for individual legal ventures of the kind pursued by Nemeth, once it has Featured Article continues on page 20 T