PLSO The Oregon Surveyor March April 2020

Professional Land Surveyors of Oregon |  www.plso.org 21 law in the RS 2477 context, and the QTA, such as these: • Individual states were, prior to and during the RS 2477 era, autho- rized to enact statutes indicating the specific format in which each state defines acceptance of RS 2477 roadways and the attendant formation of publicly held RS 2477 right-of-way, and such statutes did not become inoperative when the RS 2477 era ended in 1976, nor does the mandate embodied in such state statutes represent any infringement upon federal authority, so RS 2477 litigation can be carried to comple- tion at the state court level, in the absence of any dispute sufficient to trigger QTA jurisdiction. • Each Idaho county, being a state entity functioning in a public trust capacity, has a statutorily imposed and defined obligation to engage in the statutory road validation process, as a matter of state law, when called upon to do so for RS 2477 verification purposes by any typical county resident, and if that burden is improperly carried or disregarded by administrative personnel, then upon the submittal of a proper petition on behalf of a private claimant, that burden must be judicially picked up, borne, and carried to finality, within the state court system. • While the duty to perform a public road validation, when presented with an RS 2477 scenario, typi- cally resides with administrative personnel, operating at the state or county level in the western states, state courts are authorized to conduct such a road validation analysis as well, in response to an RS 2477 assertion made in the context of a typical quiet title action, resulting in a judicial declaration that an RS 2477 right-of-way either does or does not exist in the relevant location, which is legally binding upon all parties who are subject to state court jurisdiction, but is not binding upon the US, in observance of federal sovereign immunity. • No county or state employee, or elected or appointed official, including judges, operating at the state or county level or within any state court system, is authorized to step into the shoes of a federal judge, by formally determining or concluding that an RS 2477 right- of-way cannot be successfully proven to exist in any given location due to any factors associated with the QTA, because as a federal statute the QTA holds relevance only in federal court, and was not intended to preclude, prevent or impede proper completion of any right-of-way validation proce- dures which have been statutorily mandated under state law. • Contrasting the role of the QTA, in the RS 2477 context, with the entirely separate role of state law pertaining to right-of-way formation, development and establishment, the QTA does not supplant or displace any state law criteria used in making either administrative or judicial determinations of the validity of any given RS 2477 assertion raised at the county or state level, the QTA simply governs the enforcement of land rights in the presence of federal interest property of any kind. • Because the QTA has nothing whatsoever to do with the develop- ment of any rights under state law, and was not intended to prevent state law from operating fully, the parameters of the QTA come into play only when the federal govern- ment elects to dispute some form or aspect of non-federal land rights, until such point in time state law remains relevant and central to the resolution of those boundary and title issues which arise in either the public context or the private context. Footnotes 1. Prior editions of this series of articles contain more detailed information about RS 2477, and readers who wish to more fully explore that particular topic, or any comparable aspect of the federal land rights spectrum, are invited to contact the author, to obtain additional material focusing on either recent or historically significant federal case law. 2. Rapid national development which occurred in the wake of the Second World War brought a sense of fulfillment and satiation to Americans, who by the 1970s recognized that the full width of the North American continent had been effectively conquered and subjugated, leading a large segment of the population to focus upon preventing further exploitation of western resources. The Federal Land Policy and Management Act of 1976, which eliminated long standing opportunities to privately acquire federal property and dramatically limited the ways in which federal land could be legally used as well, was crafted with broad input from national leaders at the federal level, and reflected publicly supported environmental preservation concerns, which had been steadily increasing for 3 decades by the time that law was federally enacted. 3. See County of Shoshone v US (United States District Court for the District of Idaho - 11/21/12 - 912 F Supp 912) & County of Shoshone v US (Ninth Circuit Court of Appeals - 10/31/14 - 589 Fed Appx 834). 4. Should Nemeth ultimately be unable to prevail on his RS 2477 assertion, he could potentially turn to the provisions for access through federal lands, to reach privately owned properties such as his, which have been congressionally set forth in the federal law known as ANILCA, but the relevance of those particular federally sanctioned access measures to Nemeth’s property is unclear, being dependent upon a variety of factors, and his need to resort to such an alternative remains ambiguous as well. See Edition 11 of this series of articles (The Grill Litigation) for a more detailed examination of a comparable scenario focusing on the role and the implementation of ANILCA, as a source of federally authorized land access. Featured Article