Death Valley Road May Not Even Be There

     FRESNO, Calif. (CN) – Ruling that “if nobody built it, and nobody came, it was never there,” a federal judge denied Inyo County’s claim to a little-traveled road in Death Valley, a road so remote the county could not prove where it is.
     U.S. District Judge Anthony Ishii found that the county failed to prove the road was a public highway, and that its Board of Supervisors gained it in a federal land grant.
     Inyo County sued in October 2006 to quiet title to rights of way on four sections of the road in Death Valley National Park.
     The Department of the Interior, The National Park Service, and the superintendant of Death Valley National Park were named as defendants.
     In 2007, the court allowed the California Wilderness Coalition, the Center for Biological Diversity, Sierra Club, Wilderness Society, and Friends of the Inyo to join as defendants.
     Ishii dismissed the county’s claims in a previous decision, except for a segment called Last Chance Road. Ishii said the county did not file in time to include the other three sections in its claim.
     Death Valley is the hottest, driest and lowest National Park in the country. Its highest recorded temperature was 134 degrees in 2007. Average summer temperatures often reach 120, and average rainfall is less than 2 inches.
     Despite its harsh climate, Death Valley is home to a welter of plant and animal life, including sagebrush, Joshua trees, kit foxes, bighorn sheep and cougars.
     The park is popular with tourists, who explore its salt flats and badlands, slide down sand dunes, and hike in its mountains. Thousands of stargazers visit Death Valley’s northwest corner each year to see a stunning view of the Milky Way in one of the nation’s darkest places.
     After adding Last Chance Road to the California Desert Conservation Area in 1976, Congress in 1994 tasked the National Park Service with protecting it.
     Inyo County claims it has right of way on Last Chance Road under R.S. 2477, a 19th century federal law allowing “‘construction of highways over public lands, not reserved for public uses.'”
     “Plaintiff’s claim of entitlement under R.S. 2477 stems from actions taken by the Inyo County Board of Supervisors on March 1, 1948, when they adopted Resolutions 48-8 and 48-9 which established identified [sic] certain roads as county roads,” Ishii wrote.
     But the county failed to identify specific roads in the two resolutions. It just referred to maps, which the present-day Board does not have.
     Ishii wrote that though this was not a major concern, the county’s inability to include the maps in its complaint casts doubt on whether the section of Last Chance Road at issue “was ever actually incorporated by an action of the Board of Supervisors into the County system of roads.”
     Other maps narrowed down a possible location for Last Chance Road, in the northwest portion of the Last Chance Mountain range near Last Chance Canyon, but remained inconclusive.
     “Whether the parties agree that the Last Chance Road was properly adopted, described or demarcated, it appears that the map indicates at least a general location of the feature called Last Chance Road,” Ishii wrote.
     Ishii noted that county employees who say they did maintenance on the road could not remember where they did it.
     “[P]erhaps most significant to the court’s purposes, the County’s sole employee who claims to have participated in road grading on the Last Chance Road segment in question could not recall that the path he followed during an on-site deposition in 2010 was the same that he recalled grading, nor was he able to identify features, such as berms or windrows that were conclusively the result of road maintenance operations. …
     “The only use of the claimed Last Chance Road actually known to anyone is the occasional use at some time in the past by hunters,” Ishii wrote.
     The federal agencies sought dismissal in 2008, claiming Inyo County had run out of time to quiet title. After the court ruled on these motions, the county filed for summary judgment in 2010. The defendants filed their own motion for summary judgment in response.
     Inyo County claims it gained right of way when its Board of Supervisors accepted a land grant from the federal government under R.S. 2477 in 1948.
     But Ishii relied on the 10th Circuit ruling in Southern Utah Wilderness Alliance v. BLM, another quiet title claim under R.S. 2477.
     “A state’s acquisition of a grant of right of way under R.S. 2477 may be found in facts that lie along a continuum whose polar ends can be described best by paraphrase from the movie ‘Field of Dreams’: If they built it and the travelers came, the right-of-way is there. At the other end of the spectrum it is equally indisputable that if nobody built it, and nobody came, it was never there,” Ishii wrote.
     “Unfortunately for plaintiff, who bears the burden of proof, the state of the evidence places them close enough to the second polar extreme that it matters little to their cause whether the court looks to state law or to federal law.”
     Ishii rejected the county’s claims that it had accepted a land grant under R.S. 2477 on the basis that “some of the roads incorporated into the Official Register of County Roads in 1948 did not actually exist at the time.”
     Since the original maps are not available, Ishii concluded that the road’s alleged inclusion in the county road system, and the Inyo Board’s ambiguous attitude toward the road in subsequent actions, prevent the county from establishing a right of way.
     Ishii acknowledged that the 10th Circuit ruling that a right of way claim could be established if the road in question qualified as a highway.
     Despite noting the ambiguity in determining if a road is a highway, Ishii said that “[a] road that is used sporadically merely by ‘sightseers, hunters, and trappers’ can not be something that is necessary or convenient for the accommodation of the public and therefore a highway,” citing Hamerly v. Denton.
     Ishii concluded that Last Chance Road cannot be a highway because deposition testimony from two county employees reveals that people have not used the road since the late 1970s.
     “The fact that no person at the on-site deposition in 2010 could identify any physical feature in that location that denoted a definite road built or traveled by people is evidence of the casual and sporadic nature of its use as well as its lack of importance,” the judge wrote.
     Ishii said the county’s motion for summary judgment failed because it could not prove the road was a highway, or that its Board was granted right of way under R.S. 2477.
     He said the defendants could go forward with their motions for declaratory and injunctive relief.
     “Therefore, it is hereby ordered that plaintiff’s motion for summary judgment is denied. Defendant’s cross-motions are correspondingly granted.
     “The Clerk of the Court shall enter judgment in favor of the defendants and defendant-intervenors and shall close the case.”

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