AGO 88-28.

Case Date:December 30, 1988
Court:North Dakota
 
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North Dakota Attorney General Opinions 1988. AGO 88-28. STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 88-28Dated issued: December 30, 1988Requested by: Representative Gordon Berg
QUESTION PRESENTED - Whether the United States Fish and Wildlife Service, in advancing the purposes of its waterfowl production areas, must comply with state law when seeking to close a section line, a public road that is not on a section line, or an "established trail." - ATTORNEY GENERAL'S OPINION - It is my opinion that the United States Fish and Wildlife Service, in advancing the purposes of its waterfowl production areas, must comply with state law when seeking to close a section line, a public road that is not on a section line, or, in some cases, an "established trail." - ANALYSIS - The issue considered in this opinion is the authority of the U.S. Fish and Wildlife Service (FWS) with regard to section lines, public roads, and "established trails." To close any of these routes, the FWS must comply with state law. Because each type of route has a distinct legal nature, however, there is a different reason the FWS must comply with state law to close each of the three. Thus, this opinion separately discusses section lines, public roads, and "established trails." Section Lines Because they were granted to North Dakota by Congress, section line roads have a unique legal status. In the Act of July 26, 1866, Congress provided that: "the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253 (1866) (codified at 43 U.S.C. § 932), repealed by Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, § 706(a), 90 Stat. 2743, 2793 (1976). This provision constituted an offer of public land for highway purposes that could be accepted by the states in various ways. DeLair v. County of LaMoure, 326 N.W.2d 55, 59 (N.D. 1982). The Dakota Territory accepted the grant in an 1871 law, which provided: "hereafter all section lines in this Territory shall be and are hereby declared public highways as far aspracticable." An Act Regulating the Laying Out of Public Highways, ch. 33, § 1, 1870-1871 Laws of Dakota Terr. 519, 519-520 (1871) (codified at ch. 29, § 1, 1877 Rev. Code 125). Once the grant of highways over the public domain was accepted, the public became vested with an absolute right to use section lines. Small v. Burleigh County, 225 N.W. 2d 295, 298 (N.D. 1974); see also Walcott Township of Richland County v. Skauge, 71 N.W. 544, 546 (N.D. 1897). This vested right "could not be revoked by the general government.'" Small v. Burleigh County, 225 N.W.2d at 298 (quoting Wenburg v. Gibbs Township, 153 N.W. 440, 441 (N.D. 1915)). This right has never been surrendered. Small v. Burleigh County, 225 N.W.2d at 297. Upon vesting of this right, state or local officials need take no formal action to open a section line road or otherwise declare the road's status as a public highway. Id. "'Section lines whether traveled or not were already highways by virtue of legislative declaration, and might be traveled and subjected to such use as far as practicable,. . .'" Id. at 299 (quoting Koloen v. Pilot Mound Township, 157 N.W. 672, 673 (N.D. 1916) (emphasis in Small v. Burleigh County)). This opinion request arose from a concern that the FWS may seek to close section line roads crossing waterfowl production areas. The 1934 Migratory Bird Hunting Stamp Act, as amended in 1958, gave the FWS authority to acquire land to establish waterfowl production areas. Act of Aug. 1, 1958, Pub. L. No. 85-585, § 3, 72 Stat. 486, 487 (1958) (codified at 16 U.S.C.S. § 718d(c) (1978)). Such areas are part of the National Wildlife Refuge System and are managed by the FWS. 16 U.S.C.S. § 668dd(a) (1) (1978). Nothing in the 1934 Stamp Act or other federal law specifically gives the FWS authority to close section lines crossing waterfowl production areas. Further, even if, either explicitly or implicitly, federal law gave the FWS authority to close public roads, such authority would not be applicable to section line roads. Faxon v. Lallie Civil Township, 163 N.W. 531 (N.D. 1917), appeal dismissed (for lack of jurisdiction), 250 U.S. 634 (1919); Minidoka & S.W.R. Co. v. Weymouth, 113 P. 455 (Idaho 1911). In Faxon a North Dakota township had established a public highway on a section line. Faxon, the landowner, claimed compensation for the taking of his land for the road. The township responded that it owed nothing because it had a highway easement by virtue of the 1866 congressional grant and the 1871 acceptance of this grant. 163 N.W. at 532. Faxon's land was in the Devils Lake Indian Reservation, which was set apart by an 1874 treaty. Faxon claimed the establishment of the reservation repealed the 1866 grant. The court, however, said that by 1874 the 1866 act had been in effect eight years and accepted for three. Id. at 532-33. The court continued: It is also clear that the right granted to the state was not in the nature of a license, revocable at the pleasure of the grantor, but that highways once established over the public domain under and by virtue of the act became vested in the public, who had an absolute right to the use thereof which could not be revoked by the general government . . . . Id. at 533. The court added that nothing in the 1874 treaty creating the Indian reservation would cause the court to believe Congress intended to divest the public...

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