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County of Shoshone v. United States

United States District Court, D. Idaho

November 21, 2012

COUNTY OF SHOSHONE OF the State of IDAHO; George E. Stephenson; New Jersey Mining Company, Plaintiffs
v.
UNITED STATES of America; Secretary of the United States Department of Agriculture; Chief of the United States Forest Service; Regional Forester of the Northern Region of the United States Forest Service; Forest Supervisor for the Idaho Panhandle National Forests of the United States Forest Service; District Ranger for the Coeur d'Alene River Ranger District of the United States Forest Service, Defendants.

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[Copyrighted Material Omitted]

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Keisha L. Oxendine, Osburn, ID, W. Alan Schroeder, Schroeder & Lezamiz Law Offices, LLP, Boise, ID, for Plaintiffs.

David L. Negri, U.S. Dept. of Justice, Warren S. Derbidge, U.S. Attorney's Office, Boise, ID, for Defendants.

MEMORANDUM DECISION AND ORDER RE: PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT (Docket No. 32) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Docket No. 36)

RONALD E. BUSH, United States Magistrate Judge.

Now pending before the Court are (1) Plaintiffs' Motion for Partial Summary Judgment (Docket No. 32), and (2) Defendants' Motion for Summary Judgment (Docket No. 36). Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

I. INTRODUCTION

This action speaks to a controversy rooted deep into the early history of Idaho, involving the legal status of claims to rights-of-way for the construction of roadways across federal lands. Here, the Court is asked to decide the legal status of a mountainous passage route that dates to 1884, located in Shoshone County, Idaho, referred to by the parties as the " Eagle Creek Road."

In 1866, Congress enacted an open-ended grant of " [t]he right[-]of[-]way for the construction of highways over public lands, not reserved for public uses ...." Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by Federal Land Policy Management Act

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of 1976 (" FLPMA" ), Pub.L. No. 94-579 § 706(a), 90 Stat. 2743. Commonly called " R.S. 2477" after its residing place in the 1866 volume of Revised Statutes, this offer of a right-of-way over unreserved federal land remained in effect for 110 years, and " most of the transportation routes of the West were established under its authority." Southern Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 740-41 (10th Cir.2005) (" During that time, congressional policy promoted the development of the unreserved public lands and their passage into private productive hands; R.S. 2477 rights-of-way were an integral part of the congressional pro-development lands policy." ).

In enacting FLPMA in 1976, Congress abandoned this approach to public lands by moving to a different policy which emphasized the retention of federal lands with an increased emphasis on conservation and preservation. See id. at 741 (citing 43 U.S.C. § 1701 et seq. ).

Even though FLPMA repealed R.S. 2477, it nonetheless preserved any rights-of-way that existed before FLPMA's October 21, 1976 effective date, and any such qualifying rights-of-way remain valid today. See 43 U.S.C. § 1769(a); see also Southern Utah Wilderness Alliance, 425 F.3d at 741 (" [FLPMA] thus had the effect of ‘ freezing’ R.S. 2477 rights as they were in 1976." ) (citing Sierra Club v. Hodel, 848 F.2d 1068, 1081 (10th Cir.1988)). No R.S. 2477 right-of-way may be established, however, once the land in question is withdrawn from the public domain or included within a reserve. See Adams v. United States, 3 F.3d 1254, 1258 (9th Cir.1993); see also United States v. Jenks, 804 F.Supp. 232, 235-36 (D.N.M.1992) (roads created after Presidential proclamation reserved land as national forest were not public roads under R.S. 2477).

Still, Congress never specified a particular method or procedure for establishing R.S. 2477 rights-of-way. Indeed, " the establishment of R.S. 2477 rights[-]of[-]way required no administrative formalities: no entry, no application, no license, no patent, and no deed on the federal side; no formal act of public acceptance on the part of the states or localities in whom the right was vested." Southern Utah Wilderness Alliance, 425 F.3d at 741; see also Report to Congress on R.S. 2477: The History and Management of R.S. 2477 Rights-of-Way Claims on Federal and Other Lands (June 1993) (explaining that R.S. 2477 highways " were constructed without any approval from the federal government and with no documentation of the public land records, so there are few official records documenting the right-of-way or indicating that a highway was constructed on federal land under this authority." ). This, coupled with the fact that parties rarely had need to wrestle with R.S. 2477 issues while the statute was still in force (especially when considering the federal government's pre-1976 policy of opening and developing public lands), can make for a difficult, well-after-the-fact, task to prove an R.S. 2477 right-of-way, sending litigants to " the historical archives for documentation of matters no one had reason to document at the time." Southern Utah Wilderness Alliance, 425 F.3d at 742.

This case presents such a task for Plaintiffs. Answering the question of whether Eagle Creek Road is an R.S. 2477 right-of-way requires an examination of events taking place between: (1) 1884, when the Eagle Creek Road first came into existence to help miners and merchants traverse from Montana into Coeur d'Alene gold fields, and (2) November 6, 1906, when President Theodore Roosevelt created the Coeur d'Alene Forest Reserve and withdrew/reserved the land upon which the Eagle Creek Road is located from the public domain ( see Defs.' Ex. 77 (President Roosevelt's proclamation reserving lands

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that became the Coeur d'Alene Forest Reserve)). See e.g., Adams, 3 F.3d at 1258 (" To establish a[n] [R.S. 2477 right-of-way], the Adamses must show that the road in question was built before the surrounding land lost its public character in 1906." ) (citing Humboldt Cnty. v. United States, 684 F.2d 1276, 1281 (9th Cir.1982)).

Not surprisingly, given the length of time since the events underlying this lawsuit, there is no direct testimony about the history of the road. All of the evidence is drawn from the historical record— from contemporaneous but still extant written accounts of the creation and use of the route, or from government records touching upon the mining claims in the vicinity, or from the records of other governmental activities relating to the ongoing business of the vicinity. There are maps of many forms, newspaper articles from the gold rush maelstrom of the time, records of patented and unpatented mining claims, and historical accounts authored at different times over the last century by local historians or government agencies. The record is an enormous patchwork of such evidence, with interlocking pieces in some instances, and missing parts in other instances.

The Court has scrutinized, considered, and weighed each of the hundreds of documents in the record. The Court has carefully read the parties' respective historical narratives, offered through the reports or declarations of those employed to trace the history of the road. The parties' briefing, which places the historical record upon the legal template of R.S. 2477 and applicable Idaho law, was a great aid to the Court, and has been pondered at length.

II. GENERAL BACKGROUND

Plaintiffs Shoshone County, George Stephenson, and New Jersey Mining Company (collectively " Plaintiffs" ) bring this action against, among many others, Defendant U.S. Forest Service (collectively " Defendants" ), seeking to re-open Eagle Creek Road to public access. See Pls.' Compl. (Docket No. 1) (asserting four, interrelated, claims for relief). Despite the underlying dispute, the parties generally agree upon many of the historical facts giving rise to Eagle Creek Road and, thus, the foundation for the Court's consideration of the parties' cross motions for summary judgment.

In 1883, in the quintessential rush following the discovery of gold near Prichard Creek (a tributary to the North Fork of the Coeur d'Alene River), the mining camp of Eagle City was thrown down in the area where Eagle Creek joins Prichard Creek. The location was near the first placer claims, and took advantage of one of the few " flats" found in the otherwise heavily timbered and steep countryside. Much of the " rush" to Eagle City took place in the Fall and Winter of 1883, and on into the early months of 1884, when entrepreneurs in Belknap, Montana (located on the Northern Pacific Railroad's main line) sought ways to take a merchant's profit from the eager gold seekers headed for the Eagle Creek district. These businessmen immediately set about trying to build the most direct route the topography would allow between Belknap and Eagle City (crossing over the summits of the Bitterroot Mountains that divided the Montana Territory and the Idaho Territory) and then promoted the " Belknap Trail" route to new arrivers even as it was just being established, as the shortest route to the gold claims. The parties disagree as to the exact form of Eagle Creek Road in those early years, but they do agree that whatever form it did take, it existed over some part of the Belknap Trail.[1] See Pls.'

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SOF, p. 2, ¶¶ 5 (Docket No. 32, Att. 2); see also Defs.' SOF, p. 1, ¶¶ 1-2 (Docket No. 37); Pls.' Resp. to SOF, pp. 1-2, ¶¶ 1-2 (Docket No. 50, Att. 1).

By the Spring of 1885, however, nearby Murray, Idaho supplanted Eagle City as the center of mining activity in the area. See Defs.' SOF, p. 1, ¶ 3 (Docket No. 37); see also Pls.' Resp. to SOF, p., 2, ¶ 3 (Docket No. 50, Att. 1). As a result, other routes, more direct to Murray, began connecting the Northern Pacific Railroad in Montana and the Coeur d'Alene gold fields. One was the " New Belknap Trail," which altogether avoided Eagle Creek Road and Eagle City, shortening the distance between Belknap and Murray by approximately six miles. See Defs.' SOF, pp. 1-2, ¶ 4 (Docket No. 37); see also Pls.' Resp. to SOF, pp. 2-3, ¶ 4 (Docket No. 50, Att. 1).

Despite agreement about some historical facts, the parties differ in their respective characterizations of Eagle Creek Road's importance, use, and maintenance over time. That disagreement is a central fulcrum of this lawsuit, and one which the Court must resolve in order to decide the pending motions.

For example, notwithstanding the ascension of Murray over Eagle City, coupled with the emergence of the New Belknap Trail, Plaintiffs contend that activity along Eagle Creek Road " did not materially change" as evidenced by the mining records, government declarations in county commission records, voting records, and purported county maintenance of the road:

• Petitions from residents of Ellensburg, Idaho (located in the Eagle Creek drainages upstream from the town) in March and April of 1885 to the Shoshone County Board of Commissioners requested the declaration of a county road from Ellensburg to Eagle City. Plaintiffs contend such a declaration must have been made, even though there is no record of such, because the Commissioners, on July 13, 1885, did enact a declaration of county road between the " Ellensburg to Eagle Road" and Doctorville, Idaho (another mining camp in the Eagle Creek drainage), demonstrating that the petition for the Ellensburg to Eagle Road was granted, but inadvertently omitted from the Shoshone County Commissioners Minutes. See Pls.' SOF, pp. 4-6, ¶¶ 13-14 & 18-20 (Docket No. 32, Att. 2); see also Pls.' Resp. to SOF, p. 3, ¶ 5 (Docket No. 50, Att. 1).

• A number of government mineral surveys between 1887-1888 reference " a good wagon road" and " a good trail" attributable to Eagle Creek Road. See Pls.' SOF, p. 4, ¶ 15 (Docket No. 32, Att. 2).

• Several maps printed between 1891-1904 identify the Belknap Trail and the Eagle Creek Road. See Pls.' SOF, p. 5, ¶ 16 (Docket No. 32, Att. 2); see also Pls.' Resp. to SOF, p. 3, ¶ 6 (Docket No. 50, Att. 1).

• The April 10, 1906 Shoshone County Commissioners Minutes report a petition

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from citizens requesting " the appropriation of funds to assist in the improvement of the wagon road now extending from the old Town of Eagle to the confluence of the East and West Forks of Eagle Creek to the placer camp of Smith & Dunlap, and for the establishment of a new road from the camp of Smith & Dunlap to the mouth of Tributary Creek." See Pls.' SOF, p. 5, ¶ 17 (Docket No. 32, Att. 2); see also Pls.' Resp. to SOF, p. 4, ¶ 8 (Docket No. 50, Att. 1).[2]

• In the 1884-1885 Legislative Session, Idaho's Territorial Legislature passed An Act to Amend an Act Regulating Roads, Highways and Public Thoroughfares in Idaho Territory — requiring that counties create road districts, appoint supervisors of roads to run the road districts, and assess taxes, spend money, and engage labor to maintain the roads in such districts. Consistent with this law, on January 21, 1885, the Shoshone County Commissioners established District No. 2, which included Eagle Creek Road. Nearly a month later, however, the Shoshone County Commissioners created a new Road District— District No. 6— which included most of the Eagle Creek drainage; the only known road within District No. 6 was Eagle Creek Road. Thereafter District No. 6 merged into District No. 2 and, between 1885-1906, taxes were collected and expenditures were made for roads within that District. See Pls.' SOF, pp. 6-7, ¶¶ 21-28 (Docket No. 32, Att. 2).

• Along with unpatented mining claims, several patented mineral claims were granted within the East Fork of Eagle Creek drainage before 1906, upon which these claims relied upon the Eagle Creek Road for access. See Pls.' SOF, p. 8, ¶¶ 30-31 (Docket No. 32, Att. 2); see also Pls.' Resp. to SOF, pp. 2-4, ¶¶ 3 & 7 (Docket No. 50, Att. 1).

In stark contrast, Defendants assert that, nearly as quick as the Eagle Creek Road portion of the Belknap Trail came into existence, miners and the new fortune seekers abandoned Eagle City for Murray (the minerals in the area having either played out, already been claimed, or having proved too difficult to mine profitably). According to Defendants, Eagle Creek Road was no longer needed and, thus, no longer regularly used as a thoroughfare connecting the railroad to the area, commenting:

• By May of 1885, Eagle city was almost entirely deserted and the center of mining activity in the area shifted to the small town of Murray, Idaho. With the rapid demise of Eagle City, there is no indication that additional work occurred on the Eagle Creek route until after the 1906 Forest reservation. See Defs.' SOF, p. 1, ¶ 3 (Docket No. 37).
• Also in 1885, a few miners at the Ellensburg mining camp sought to complete the Eagle Creek route. Realizing that business interests in Belknap and Eagle City had no incentive to either maintain or complete the route, they petitioned Shoshone County " for a road from Eagle" to the camp. The County asked for a second petition, which

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the residents presented, but the historical record contains no direct evidence that the County ever approved the petition. The Ellensburg camp disappeared by 1888. See Defs.' SOF, p. 2, ¶ 5 (Docket No. 37).
• The Eagle Creek route slipped into obscurity. Several maps of the region in the 1890's and early 1900's contain no mention of the route at all, suggesting that any then-contemporaneous reference to the same reflected only the occasional miner in the area. The general inaccessibility of the area, with a paucity of level ground, poor soils, and a short growing season kept settlers, loggers, and ranchers away. Travel up the route was a " slow and painstaking effort," with high water crossings that made travel " quite difficult and dangerous." Horse travel was often impossible and there are no accounts of travel by wagon. Much of the route was in the creek itself. See Defs.' SOF, p. 2, ¶ 6 (Docket No. 37).
• Mining activity, though present as of 1885, was extremely limited. For example, in 1904, there were only seven mining claims reported within the East Fork of the Eagle Creek drainage, with only one placer operation known to have been working during the period in question. As late as 1912, only a " few miners" lived in or near the area. See Defs.' SOF, pp. 2-3, ¶ 7 (Docket No. 37).

• In 1906, several attempts were made to obtain public funding for the Eagle Creek route but they were unsuccessful. Two petitions were submitted to Shoshone County to " assist" with " improvement" and " betterment" of the route and to " establish" or " create" a road to the mouth of Tributary Creek. Both were explicitly " tabled" and rejected by the County. At about the same time, the Idaho Intermountain Wagon Road Commission considered a petition for the construction of a road from the Dunlap and Smith placer camp to Jack Waite Forks. The Commission rejected this petition because the proposal " seemed to be largely for the benefit of one mine." See Defs.' SOF, p. 3, ¶ 8 (Docket No. 37).

Armed with their own version of the historical facts surrounding this action, both parties move for summary judgment concerning the legal status of Eagle Creek Road as contemplated by R.S. 2477 and the case law interpreting its application to situations like this.

For their part, Plaintiffs argue that Eagle Creek Road constitutes an R.S. 2477 right-of-way as a matter of law because, during the relevant time period, it represented a " highway" under Idaho law due to its (1) regular public use over the requisite period of time, (2) declaration as a " county road" by Shoshone County, and (3) maintenance by Shoshone County at the public's expense. See Pls.' Mem. in Supp. of Mot. for Partial Summ. J. (" Pls.' MSJ" ), pp. 1, 10-17 (Docket No. 32, Att. 1). Alternatively, Plaintiffs argue that, in response to the Shoshone County Board of Commissioners' relatively recent validation of Eagle Creek Road as a public right-of-way, Defendants never sought judicial review of that decision under Idaho law and are therefore barred from now objecting to Plaintiffs' attempt at establishing Eagle Creek Road as an R.S. 2477 right-of-way. See id. at pp. 1, 17-20.

Defendants not only dispute Plaintiffs' arguments, but affirmatively seek an opposite ruling— namely, that Eagle Creek Road is not an R.S. 2477 right-of-way as a matter of law. See Defs.' Mem. in Supp. of Mot. for Summ. J./Opp. to Pls.' MSJ (" Defs.' MSJ" ), pp. 13, 23-38 (Docket No. 40). Defendants also raise procedural arguments

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that preliminarily (1) challenge Plaintiffs George E. Stephenson's and New Jersey Mining Company's standing to pursue this action, and (2) contend Plaintiffs' claims are altogether time-barred. ( See id. at pp. 13-23).

The Court heard oral argument on the parties' cross motions for summary judgment in the federal courthouse in Coeur d'Alene, Idaho. The following day, the Court, the parties, their representatives, and the parties' counsel participated in a site inspection of Eagle Creek Road. Pursuant to the agreement of all parties, the site inspection involved an auto-tour of the portions of Eagle Creek Road open to automobile travel, followed by foot travel over the portion of Eagle Creek Road that is not open to automobile travel. The particular sections of Eagle Creek Road so traveled are identified as different sections in the map exhibits and briefing submitted by the parties in conjunction with the pending motions.[3]

Following the site inspection, the Court permitted the parties to file a written follow-up, giving each party an opportunity to connect their written and oral arguments as to the pending motions with the observations made during the site inspection. Those written follow-ups have since been submitted to the Court ( see Docket Nos. 63-66), along with several notices of supplemental authority ( see Docket Nos. 67, 68, 70, 72-73, & 79-80). Therefore, this Memorandum Decision and Order resolves the issues presented by the parties' briefing to date.

III. STANDARD OF LAW

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). One of the principal purposes of the summary judgment " is to isolate and dispose of factually unsupported claims ...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It is " not a disfavored procedural shortcut," but is instead the " principal tool [ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327, 106 S.Ct. 2548. " [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505.

The evidence, including all reasonable inferences which may be drawn therefrom, must be viewed in a light most favorable to the non-moving party and the Court must not make credibility findings. See id. at 255, 106 S.Ct. 2505. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir.1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir.1988).

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The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).

This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in his favor. See id. at 256-57, 106 S.Ct. 2505. The non-moving party must go beyond the pleadings and show " by [his] affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

As a general rule, the Court is " not required to comb through the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir.2001) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir.1988)). Instead, the " party opposing summary judgment must direct [the Court's] attention to specific triable facts." Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir.2003). An exception to this rule exists when cross-motions for summary judgment are filed. In that case, the Court must independently search the record for issues of fact. See Fair Housing Council of Riverside Co., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001).

In cases such as this, contemporaneous direct evidence is hard to come by and is, not surprisingly, largely absent from this record. What remains— circumstantial evidence— is appropriately considered, but in order to support a party's argument, such evidence must be more than mere conclusions, and the strength of such evidence turns upon the strength of the inferences to be drawn from the evidence, particularly when measured against the larger context of all of the historical record.

IV. DISCUSSION

A. The Quiet Title Act and the Non-Governmental Plaintiffs' Standing

As a limited waiver of sovereign immunity, the Quiet Title Act is the sole avenue by which Plaintiffs can prove the existence of its R.S. 2477 rights in court. See Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 286, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983) (holding that Quiet Title act is " the exclusive means by which adverse claimants [may] challenge the United States' title to real property." ). Under the Quiet Title Act, the United States may be named as a party defendant in a civil action to adjudicate a disputed title to real property in which the United States claims an interest. See 28 U.S.C. § 2409a(a). However, the Quiet Title Act sets forth heightened pleading requirements: a plaintiff asserting a claim under the Quiet Title Act must " set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States." See 28 U.S.C. § 2409a(d).

Defendants concede Plaintiff Shoshone County's standing to pursue this action. However, Defendants argue that the non-governmental Plaintiffs— George E. Stephenson and the New Jersey Mining Company [4]— have no recognized interest in title to the alleged right-of-way (Eagle Creek

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Road) and therefore lack standing to bring a quiet title suit against the United States. See Defs.' MSJ, p. 14 (Docket No. 40). Plaintiffs contend that these two Plaintiffs maintain the requisite right and interest in Eagle Creek Road because, as Shoshone County residents and property holders, Idaho law permits them to petition the county to initiate public proceedings to validate a highway or public right-of-way (or, as the case may be, challenge any validation). See Pls.' Resp. to Defs.' MSJ and Reply, pp. 28-30 (Docket No. 49) (citing I.C. §§ 40-203A(1) & (4)) (" ... under Idaho laws, members of the public who have specialized and unique interests in the right-of-way should be able to bring suit to protect their rights when the federal government seeks to infringe on those rights." ).

Unquestionably, these non-governmental Plaintiffs have some interest in seeking a reopened Eagle Creek Road. Still, those interests— however they may be defined— are shared by the public at large (at least insofar as the public consists of " any resident or property holder" in Shoshone County, as expressed within Idaho Code section 40-203(A)).[5] " Courts which have addressed whether a plaintiff, as a member of the public, can assert a title under the Quiet Title Act for access to routes established pursuant to R.S. 2477 have ruled that there is no subject matter jurisdiction." Friends of Panamint Valley v. Kempthorne, 499 F.Supp.2d 1165 (E.D.Cal.2007). In other words, the right to use a public road is not itself a right or interest in property as recognized by the Quiet Title Act. See Public Lands for the People, Inc. v. U.S. Dept. of Agriculture, 733 F.Supp.2d 1172, 1193 (E.D.Cal.2010). " Th[at] interest ... must be some interest in the title to the property." Kinscherff v. United States, 586 F.2d 159, 160 (10th Cir.1978).

Here, the two non-governmental Plaintiffs have an interest in the use of Eagle Creek Road that is shared by the public as a whole. See id. (" Members of the public as such do not have " title" in public roads. To hold otherwise would signify some degree of ownership as an easement. It is apparent that a member of the public cannot assert such an ownership in a public road." ). The interest in the title to Eagle Creek Road, however, vests in the public generally or potentially, in this case, Plaintiff Shoshone County. See Long v. Area Manager, Bureau of Reclamation, 236 F.3d 910, 915 (8th Cir.2001) (" ... the right of an individual to use a public road is not a right or interest ...


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