PLSO The Oregon Surveyor March April 2020

20 The Oregon Surveyor  | Vol. 43, No. 2 been authoritatively found that no pub- lic rights exist in any particular location. Nonetheless, Idaho Code, in recognition of the importance of legal access to all properties, public and private, the ISC em- phasized, wisely provides “a mechanism for the public to seek validation of feder- al land rights-of-way established prior to 1976 pursuant to RS 2477,” and no coun- ty personnel, at either the administrative or the judicial level, being public employ- ees charged with a duty to carry out state law, have any option to block proper im- plementation of that process, as it was legislatively intended to function. “No- tably,” the ISC added “none of the Idaho statutes relating to validation of RS 2477 rights-of-way ... preclude validation (by counties) of rights-of-way that currently traverse federal land,” thereby confirming that any attempt to justify either admin- istrative or judicial inaction by pointing to the QTA as a legal blockade, prevent- ing any decisions made at the county or state level from being legally efficacious, must be deemed groundless, because all county and state employees are required to follow state law, rather than refraining fromperforming their duties as a result of their own fear of any potentially adverse subsequent impact of federal law on their decisions. While it would be easy to place blame for ignorance of the law upon ei- ther the defendants or the trial judge, the real root cause of this controversy was the high level of ambiguity which clouds the true scope and legal impact of the QTA, with regard to non-federal land rights of all kinds, particularly the influence of the QTA on the relevance of state law, which made those public servants erroneously feel that it was beyond their power to ef- fectively assist any citizen, such as Nemeth, withany RS 2477 issue. In summary, county personnel plainly failed to respond appro- priately to the Nemeth scenario because they came away from the Eagle Creek case with the mistaken impression that if any authorized federal personnel say that any given road within the boundar- ies of a federal reservation is not a county road, then it is not a county road, making any efforts, either administrative or judi - cial, to prove that the contested route is in fact legally a county road under state law, necessarily a fruitless waste of pub- lic resources. Although the congressional intent to shield and shelter federal properties and federal land rights, by protecting them from stale, senseless or otherwise unjustified private attacks, which is embodied in the QTA and other late Twentieth Century federally enacted legislation must certainly be re- spected, RS 2477 is a product of an earlier and very different era, which legitimately expressed the congressional intent of that time period, and therefore also remains worthy of judicial respect, as the ISC ac- knowledged, stating that “this Court has expressly approved validation of rights- of-way (created per RS 2477) on federal land ... therefore a public road (even in- side a federal reservation) ... is within the County’s legal authority to validate” despite that federal presence. No conflict exists between federal law and state law, where federal lawenvisions and anticipates either the subsequent or the contemporaneous exercise of state law, the ISC astutely real- ized, since state law logically operates as an extension or continuation, where fed- eral law ends, thus concerns stemming from federal law, specifically the appli - cability of the QTA to Nemeth’s access route, could provide Shoshone County personnel, guided as they are solely by state law, with no basis upon which to neglect their role as representatives of a public entity, created to serve their citi- zens. Moreover, as the ISC also indicated on this occasion, long prior to the QTA era Congress granted all citizens the right to develop routes of travel suitable for pub- lic use upon the public domain, and the enactment of RS 2477 represented feder- al acknowledgement that such roadways, once established, comprising legitimate- ly permanent public right-of-way, would never be foreclosed through any arbitrary exercise of federal authority, which is why Congress expressly verified, upon enacting the Federal Land Policy and Management Act in 1976, that the action taken at that time was not intended to have any ad- verse impact upon any existing RS 2477 rights. Titlemarketability has long been an instrumental factor in the RS 2477 equa- tion as well, the ISC quite appropriately noted, stating that the plaintiff clearly had “a personal stake in having the road validated,” because “Idaho case law sup- ports the use of declaratory judgment (in state court) ... under the very statutes at play in this case” when any county fails to take statutorily mandated action on an RS 2477 validation request submitted by a private property owner to verify the existence of legal access to his land for conveyance purposes. Thus the ISC found that Nemeth had acted in full accord with state law, and the dismissal of his case, resulting frommisperceptions regarding the interaction of state and federal law, was plainly unjustified, confirming that once the County Board dropped the ball, by electing to take no action in Nemeth’s aid, it became legally incumbent upon the state judicial system, specifically the lower court, to provide Nemeth with the RS 2477 ruling he sought, even if the tri- al judge was convinced that the plaintiff had no chance of achieving subsequent success in federal court (FN 4). As we bid farewell to Nemeth at this point, early in 2020, while his legal action is still in progress, its unclear whether or not his case will ever reach the QTA arena, as did the Eagle Creek case, and quite obviously it will not, if he is unable to emerge vic- torious at the state court level, although the ISC has awarded him a renewed op- portunity in that regard, by clarifying the relevance of state law to his case, and directing a trial judge to give proper atten- tion to whatever evidence he chooses to present going forward. Moreover, even if Nemeth ultimately prevails in state court, should the Forest Service subsequently decide to take issue with any RS 2477 rul- ing in his favor, he will then be required to satisfy the parameters of the QTA, as the County Board was so acutely aware from the outset, in order to accomplish his objective, and thereby earn the right to honestly tell potential buyers of his es- tate that the access issue which has long plagued his property has been conclusively resolved, making his title genuinely mar- ketable, should he manage to prevail in federal court. Undoubtedly, Nemeth has already learned at least one especially poignant lesson, upon experiencing the massive legal consequences of his own failure to force his grantor to verify to him, through some formof suitable documen- tation, that the land his grantor proposed to sell to himhad genuine legal access, be- foreNemethmade his acquisition. Nemeth stands in his current position because he made the classic mistake, made by count- less other grantees before him, to their great regret—he failed to demand prop- erly documented verification that the road he knew he would need to use for access, after making his acquisition, was in fact a county road bearing a public easement, and that was indeed a plain failure on his part, even if he was verbally misinformed by one or more parties about the road’s legal status at that time. For us as spec- tators however, along with that powerful observation, there are a number of other valuable lessons to be gleaned, regarding RS 2477, the role and operation of state Featured Article