AGO 2000-F-005.

• Case Date: January 26, 2000
• Court: North Dakota

North Dakota Attorney General Opinions 2000. AGO 2000-F-005. STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 2000-F-05Date issued: January 26, 2000Requested by: Dennis Edward Johnson, McKenzie County State's Attorney- QUESTION PRESENTED - Whether federal land in North Dakota can be burdened by public roads established by prescription under state law and by the state's section line law.- ATTORNEY GENERAL'S OPINION - It is my opinion that federal land in North Dakota can be burdened by public roads established by prescription under state law and by the state's section line law. - ANALYSIS - Background In 1866 Congress enacted a statute giving the public a right-of-way on federal land that had not been reserved for a particular use. The statute stated: "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." Ch. 262, § 8, 14 Stat. 251, 253 (codified at 43 U.S.C. § 932). The law became known as "R.S. 2477" because it was originally codified at section 2477 of the 1873-74 Revised Statutes. The grant was repealed in 1976 by the Federal Land Policy Management Act (FLPMA), which set a new direction for public land management. Pub. L. 94-579, 90 Stat. 2743, 2793 (1976). Congress, however, preserved R.S. 2477 rights-of-way in existence on the date of FLPMA' s passage. Secs. 509(a) (codified at 43 U.S.C. § 1769(a)), 701(a)(h). Thus, the question becomes whether North Dakota law establishing public roads properly accepted Congress's offer before it was withdrawn in 1976. In North Dakota public roads can be established by prescription, that is, by continued public use. A significant body of case law addresses the creation of public roads by statutory prescription and by prescription under the common law. E.g., Hartlieb v. Sawyer Tp. Bd., 366 N.W.2d 486 (N.D. 1985); Kritzberger v. Traill County, 242 N.W. 913 (N.D. 1932); Berger v. Morton County, 221 N.W. 270 (N.D. 1928); Burleigh County v. Rhud, 136 N.W. 1082 (N.D. 1912); Walcott Tp. v. Skauge, 71 N.W. 544 (N.D. 1897). The law is codified at N.D.C.C. § 24-07-01. State law also establishes all section lines as public roads, which is a subject that has also often been addressed by the courts. E.g., Ames v. Rose Tp., 502 N.W.2d 845, 847-48 (N.D. 1993); Small v. Burleigh County, 225 N.W.2d 295, 297 (N.D. 1974); Huffman v. Bd. of Supervisors, 182 N.W. 459, 461 (N.D. 1921). Section lines comprise "a system of highways," Huffman, 182 N.W. at 461, over which the public has a "vested" and "absolute right" to travel. Walcott Tp., 71 N.W. at 546. A section line is considered a highway and open for travel without the need for any governmental action. State v. Silseth, 399 N.W.2d 868, 869 (N.D. 1987); Small, 225 N.W.2d at 300; Huffman, 182 N.W. at 461. The section line access law is codified at N.D.C.C. § 24-07-03. Both prescriptive roads and section line roads are considered, by the North Dakota Supreme Court, an appropriate means by which the offer of R.S. 2477 might be accepted. Huffman, 182 N.W. at 461; Walcott Tp., 71 N.W. at 545-46. But the federal government wasn't a party to such cases. So a definitive answer to the question whether state law properly accepted the R.S. 2477 grant remains. The grant has recently generated a nationwide controversy. As a result, in 1993 the Department of Interior, at Congress's direction, issued a study of the R.S. 2477 grant.(fn1) Also in 1993, Congress's own research service issued a report.(fn2) Many law review articles discuss and debate R.S. 2477.(fn3) And as will be discussed, in the 1980s and 1990s the nature of R.S. 2477 was litigated. Part of the controversy is due to the importance of roads to the infrastructure of the states. Indeed, R.S. 2477 roads "are major components of the transportation systems in most western states." Sierra Club v. Hodel, 848 F.2d 1068, 1082 (10th Cir. 1988), overruled in part on other grounds, Village of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992). It is in North Dakota's western counties where the need for roads confronts extensive federal land ownership. The Bureau of Land Management oversees some of this land but most of it is managed by the Forest Service as part of the Little Missouri River National Grasslands. Unfortunately, federal land managers sometimes view the need and even the existence of public roads across federal land differently than local officials, as is apparently the case in McKenzie County. Resolution of the dispute requires determining the role of state law in defining the 1866 grant. Indeed, this is the essence of the R.S. 2477 controversy nationwide. Sierra Club, 848 F.2d at 1080. In particular, the controversy concerns the meaning of that part of the grant providing "for the construction of highways." What is unclear is whether this requires the actual construction of a highway, or if a highway may be created merely by prescription or statutory declaration. Because R.S. 2477 is a federal statute, federal law must interpret it. United States v. Gates of the Mts. Lakeshore Homes, Inc., 732 F.2d 1411, 1413 (9th Cir. 1984). But state law can be adopted or borrowed to provide the rules of decision. United States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979). Kimbell Foods sets forth several factors to be considered when deciding whether state law should govern. Id. at 728-29. To fully apply these factors, however, several matters affect the Kimbell Foods analysis and require review. State court decisions have always applied state law Many state courts have considered how the 1866 grant may be perfected. These decisions uniformly find that state law governs. Barbara G. Hjelle, "Ten Essential Points...