Posted on 02/15/2004 10:01:35 AM PST by brityank
At long last...
A win for the ranchers
By Mountain States Legal Foundation
It must have been an open and shut case. Oral arguments occurred on December 10, 2003, in Montana federal district court; two days later, the court ruled for Stephen and Jean Roth of Darby, Montana. The court held that the Roths own an easement in the Bitterroot National Forest, created in 1897, and the Selway-Bitterroot Wilderness Area, created in 1964, for Tamarack Lake dam and reservoir and four ditches that deliver water to the Roths' ranch.
The Roths' victory was welcome news to landowners across the west who are fighting with the U.S. Forest Service and other federal land agencies over whether they have the right to access their property. Despite the specific language of titles and patents, even patents signed by Presidents of the United States; the well-established protections afforded property owners by the common law; and, the express provisions of several federal statutes, federal agencies insist that landowners have no rights, and must either apply for a revocable license to access their property or sue.
The Roths' facts are straight-forward. In 1988, they purchased 750 acres in Ravalli County; in 1990, they bought 50 adjacent acres; both purchases included water rights to operate their Trapper Creek Ranch, including Tamarack Lake dam and reservoir and four ditches. The Roths asserted that, under congressional acts adopted in 1866 and 1891, they held easements for these facilities, easements the Forest Service could not prevent them from using. When the Forest Service denied them access, the Roths sued the United States under the Quiet Title Act.
In opposing the Roths' lawsuit, the United States asserted first that the 12-year statute of limitations for filing a Quiet Title Act suit had expired because the Forest Service had always disputed their claim. The court rejected the argument, pointing to a 1998 document in which the Forest Service admitted just the opposite: the Roths had an easement.
On the merits, the Roths argued that, once their predecessors had constructed the Tamarack Lake dam and reservoir on federal lands, pursuant to the Act of 1891, the easement authorized by Congress vested automatically. The United States countered that those rights did not vest automatically; the Secretary of the Interior must have approved that easement. The court rejected that argument because it was at odds with the position espoused by the U.S. Department of the Interior beginning in 1910, a position embraced twice by the U.S. Supreme Court. The court also concluded that to accept the United States' new position would be to condemn the 1891 Act of Congress to "a sort of legal purgatory."
As to the Roths' ditches, which the Roths asserted had protected rights-of-way under both the 1866 Act and the 1891 Act, the United States argued that the Roths had "not carried their burden of proof" without explaining what statutory requirements the Roths had failed to meet, or citing anything in the record to support its position. The court flatly rejected the United States' argument - concluding that the Roths had "indeed met their burden..." The court did so, in part, because, in 1975, a Forest Service District Ranger wrote "[a] review of old records reveals the ditches....were in place prior to [creation of Bitterroot National Forest]; [thus,] no special use permit will be required."
As to every claim made in its case with the Roths, the Forest Service knew better. The Forest Service knew it had acted adversely to the Roths' rights only recently; the Roths' case was not time barred. The Forest Service knew the Roths' rights to the dam and reservoir had vested automatically; the United States had taken that position for nearly 100 years. The Forest Service knew the Roths' ditch rights predated the Bitterroot; it admitted that in 1975.
How many others are there like the Roths, folks told by federal bureaucrats that they do not have an easement, when the bureaucrats know better? It is not a happy thought!
[My Bold/Underline]
Ping for your list.
| Daryl L. Hunter - Editor |
Many of us have left California as California is no longer the place we grew up in.
To many Californians move to the mountains and bring their CA politics with them and ruin the place though, = Californication. I do my best to show them that all Californians aren't liberal, environmentalists hell bent to change their community.
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