PAM AND RON BROWN

191 IBLA 302 Decided September 25, 2017

United States Department of the Interior Office of Hearings and Appeals

Interior Board of Land Appeals 801 N. St., Suite 300

Arlington, VA 22203

703-235-3750 703-235-8349 (fax)

PAM AND RON BROWN

Decided September 25, 2017

Appeal from a Trespass Decision of the Uncompahgre (Colorado) Field Office, Bureau of Land Management, assessing appellants with $736.00 in trespass liability and penalty fees for unauthorized development of a road on

Decision affirmed.

1. Generally

The Federal Land Policy and Management Act of 1976, 43 § 1733 (g) (2012), prohibits the "use, occupancy, or development of any portion of the public lands contrary to any regulation of the Secretary [of the Interior]." Under 43 C.F.R. § 2801.9(a), the use of public lands or facilities over, under, on, or through public lands, including roads, trails, and highways, requires a right-of-way. Using, occupying, or developing the public lands or their resources without a required authorization or in a way that is beyond the scope and terms of one's authorization is prohibited, and constitutes a trespass. The unauthorized grading and graveling of a road crossing public land is an act of trespass for which BLM may assess costs and penalties.

2. Trespass: Defenses; Revised Statutes Sec. 2477

BLM need not administratively determine or otherwise recognize an R.S. 2477 right-of-way as a defense to trespass unless a Federal court has determined that the land is subject to an R.S. 2477 right-of-way.

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Constance E. Brooks, Esq., Cody B. Doig, Esq., and Danielle R. Esq., Denver, Colorado, for appellants; Tracie A. Williamson, Esq., Office of the Regional Solicitor, U.S. Department of the Interior, Lakewood, Colorado, for the Bureau of Land Management.

OPINION BY DEPUTY CHIEF ADMINISTRATIVE JUDGE ROBERTS

and Ron Brown (Appellants) have appealed from an October 30, 2014, Trespass Decision of the Uncompahgre (Colorado) Field Office, Bureau of Land Management (BLM), assessing $736.00 in trespass liability and penalty fees for maintenance of a road on public land without an approved right-of-way (ROW). On two occasions in 2013 and 2014, Appellants bladed and laid gravel on Old Lindsay Canyon Trail (OLCT) in Montrose County, Colorado, including a portion of the road that lies on public land administered by BLM. Appellants do not dispute that they performed the work, but argue that they are permitted to perform "routine maintenance" of OLCT because i t is a Revised Statute § 2477 (R.S. 2477) right-of-way (ROW). We conclude that BLM properly issued the Trespass Decision.

SUMMARY

Using, occupying, or developing the public lands or their resources without a required authorization or in a way that is beyond the scope and terms of one's authorization is prohibited under the Federal Land Policy and Management Act of and constitutes a trespass. The regulations provide that a party must have a ROW grant for purposes of using public lands for systems or facilities over, under, on, or through public lands, including roads, trails, and highways. The blading and graveling of a road that crosses public land without an ROW issued by BLM is an act of trespass. The claim that such a road constitutes an R.S. 2477 ROW does not provide a valid justification for grading and graveling the road in the absence of evidence that the road has been declared by a Federal court to constitute an R.S. 2477 ROW pursuant to the Quiet Title Act.2 Here, BLM properly issued a Notice of Trespass and assessed trespass fees and penalties for the unauthorized work on OLCT. We affirm BLM's Trespass Decision.

43 § 1733 (g) (2012). 28 U.S.C. § 2409a(a).

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BACKGROUND

A. Maintenance Activities on OLCT

This case involves work by Appellants on a portion of OLCT that lies in the Dry Creek Travel Management Area, which is public land managed by BLM. OLCT runs south from U.S. Highway 90 in Montrose County, Colorado, across private property, before crossing BLM land for approximately .20 miles. After exiting BLM land, the road continues across several more parcels of privately-owned property in the Beaver Hi l l Heights residential subdivision, including that of Appellants.3 A driveway connects OLCT and the single-family home on Appellants' land. According to Appellants, OLCT provides the only access to their property, particularly during the winter months when other area roads become impassable due to ice and snow.4 In order to maintain the road in their desired condition for access to their property, Appellants have performed maintenance work on OLCT on at least two occasions, as described below.

On November 13, 2013, a member of the public notified BLM that Appellants had bladed a portion of OLCT and had laid new gravel on i t . 5 BLM contacted the Browns, and Mr. Brown conceded that he had recently bladed and graveled OLCT and that he had performed similar work on several prior

BLM informed him that a ROW was required to perform such activities on public land, and Mr. Brown orally disagreed.7

The next day, a BLM investigator visited the public portion of OLCT and verified that i t had been bladed and covered with new gravel.8 During that visit, Appellants approached the investigator in a truck loaded with additional gravel.9 Mr. Brown again disagreed with BLM's statement that he was required to obtain an ROW to perform additional road work, but nonetheless represented that he would not place any more new gravel on the public portion of the road.10

Dry Creek Official Travel Designation Map. See Statement of Reasons (SOR) at 19-20; Affidavit of Brown (Nov. 25,

2014); Affidavit of Ron Brown (Nov. 25, 2014). BLM Conversation Record (Nov. 14, 2013). Id. Id. Id. Id. Id.

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Later that day, a BLM Ranger met with Appellants, took photographs of the work, and prepared a law enforcement report.11 Mr. Brown told the Ranger that in 2002, a BLM employee informed Appellants that they were permitted to perform maintenance on OLCT without a BLM-issued ROW.12 Appellants also expressed concern that the individual who reported Appellants' blading and graveling activities to BLM was subject to a civil restraining order held by Appellants.13 On July 30, 2014, BLM received another report of maintenance on OLCT.14 The next day, a BLM investigator conducted another site investigation, took photographs, and concluded that OLCT had again been bladed and newly graveled.15

B. BLM's Trespass Determinations and the Browns' Appeal

On August 29, 2014, BLM issued a Notice of Trespass to the Browns for unauthorized development of public land.16 In this Notice, BLM cited Appellants for blading and graveling OLCT in both November 2013 and July 2014, which BLM stated amounted to development of public lands without an ROW. I t further instructed Appellants to obtain an ROW before performing any more maintenance on OLCT, assessed $656 in trespass and administrative fees, and advised that additional fees would be assessed i f Appellants failed to comply and pay the fine.17

Appellants did not pay the fine, and instead responded to BLM by letters dated September 15, 2014, and September 24, 2014. Neither of those letters disputed BLM's statement that Appellants had bladed and graveled the public portion of OLCT. Appellants argued instead that OLCT is a publicly-accepted R.S. 2477 ROW, which permits them to use and maintain the road in accordance with its historical use. On September 30, 2014, Appellants appealed the Notice of Trespass to the Board, which docketed the appeal as IBLA 2014-293.

BLM issued a Trespass Decision on October 30, 2014, assessing an additional $80 in trespass fees, for a total of $736, and again advising the

Id.. Id. Id. BLM Conversation Record (July 30, 2014). BLM Conversation Record (July 31, 2014). Notice of Trespass (Aug. 29, 2014). Id.

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Browns to obtain an ROW from BLM before performing any more maintenance on OLCT.18 BLM copied the Board on its Trespass Decision and indicated that the Browns' prior appeal was premature because of the interlocutory nature of BLM's Notice of Trespass. Appellants filed a motion to withdraw their appeal in IBLA 2014-293, which the Board dismissed by order dated November 13,

Appellants appealed BLM's Trespass Decision to the Board, which docketed the appeal as IBLA 2015-41.

DISCUSSION

A, BLM Has Authority Under FLPMA to Require an ROW for Activities on Public Lands Beyond "Casual Use"

[1] The Federal Land Policy and Management Act of 1976 (FLPMA) prohibits the "use, occupancy, or development of any portion of the public lands contrary to any regulation of the Secretary [of the Interior]."20 BLM regulates the use of certain public lands on the Secretary's behalf, and requires an ROW for the use of "public lands or facilities over, under, on, or through public lands," including "roads, trails, highways," and the l ike.2 1

"[U]sing, occupying, or developing the public lands or their resources without a required authorization or in a way that is beyond the scope and terms of [one's] authorization" is prohibited, and is considered to be trespass.22

Without an ROW or other authorization, members of the public are permitted only "casual use" of the public lands, by activities "ordinarily resulting in no or negligible disturbance of the public lands, resources or improvements," such as surveying and collecting data.23 An individual may therefore be found in trespass for using or developing public land beyond "casual use," or beyond the scope of his or her authorization.24 BLM may recover the costs expended in investigating and terminating the trespass, as well as a penalty of no less than the processing fee for the ROW application.25

Trespass Decision (Oct. 30, 2014). Order, IBLA 2014-293 (Nov. 13, 2014) 43 U.S.C. § 1733 (g) (2012). 43 C.F.R. § 2801.9(a)(6). Id. § 2808.10. Id. § 2801.5(b). id. §§ 2801.5(b); 2808.10. Id. § 2808.11(a), (b).

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BLM concluded that the blading and graveling of the public portion of OLCT was beyond the scope of casual use, and that Appellants had no valid authorization to perform the work.26 Appellants do not dispute that they bladed and laid new gravel on the public portion of OLCT, or that those activities exceed "casual use."27

B. OLCT's Alleged Status as an R.S. Provides no Justification for Appellants' Blading and Graveling Activities

Appellants argued to BLM, and argue now to the Board, that R.S. 2477 provided the requisite authorization for its blading and graveling activity on the public land portion of OLCT. Appellants contend that the "extensive history of public use" of the OLCT is sufficient to establish OLCT as a public road.28 In its Trespass Decision, BLM did not address whether OLCT is a publicly accepted R.S. 2477 ROW, noting that "a binding determination of an R.S. 2477 ROW must be obtained through a Quiet Title Action in court."29 BLM added: "To date, neither the State of Colorado, nor Montrose County, has sought an R.S. 2477 ROW."30

BLM nonetheless found that even i f the R.S. 2477 claim was valid, the Browns' work was still prohibited, because "it was beyond routine maintenance and constituted construction of improvements" and was therefore outside the scope of an R.S. 2477 ROW.31 BLM stated that the Browns' work exceeded "casual use" because "maintenance," including the Browns' blading and graveling work, was not a "negligible disturbance."32 BLM explained that i t does "not seek to prohibit access and use of [OLCT]," but only to prevent the unauthorized maintenance of the public portion of the road.33

[2] Appellants argue that BLM was required to make an administrative determination regarding OLCT's R.S. 2477 status before issuing its Trespass

Trespass Decision at 2. SOR at 16. Id. at 13. Trespass Decision at 2. Id. Id. Id. Id.

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Decision.34 Although BLM has the authority to make such administrative determinations,35 i t was not required to do so before issuing its Trespass Decision to Appellants.36 The Board follows the well-established rule that BLM is not required to make R.S. 2477 administrative determinations before managing roads that run through public lands.37

R.S. 2477, enacted by Congress on July 26, provided as follows: "The right of way for the construction of highways over the public lands, not reserved for public uses, is granted." The Court of Appeals for the Tenth Circuit set out in detail the history of the provision in Southern Utah Wilderness Alliance v. Bureau of Land Management (SUWA v. BLM).30 Pertinent to deciding the Browns' appeal, the Court recognized that in repealing R.S. 2477 with the passage of FLPMA, Congress provided that any valid R.S. 2477 ROW existing before October 21, 1976, would remain in effect absent proof i t had been abandoned.40 The Court recognized the well-settled principle that although BLM lacks primary jurisdiction to make determinations on the validity of the ROWs granted under R.S. 2477, it may properly determine the validity of R.S. 2477 ROWs for its own purposes, as an aid to rendering administrative decisions regarding the public lands.41

As the Tenth Circuit recognized in SUWA v. BLM, the burden of proof is on the parties seeking to enforce an R.S. 2477 ROW to establish "public use" of the route for the period required under applicable State law, and the

Appellants' Reply to BLM Answer (Feb. 11, 2015) at 3-4. See Memorandum of the Secretary, "Departmental Implementation of

Southern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735 (10th Cir. 2005)" (Mar. 22, 2006).

See, e.g., Uintah County, Utah, 182 IBLA 191, 195 (2012). Williams v. Bankert, 2007 U.S. Dist. LEXIS 77503 (D. Utah), at *17-20;

American Motorcyclist Association, 188 IBLA 177, 205 (2016). Act of July 26, 1866, 262, § 8, 14 Stat. 251, 253, Revised Statutes 2477,

formerly codified at 43 U.S.C. § 932 (1970). The statute was repealed by section 706(a) of FLPMA. Pub. L. No. 94-579, 90 Stat. 2743, 2793, effective Oct. 21, 1976.

425 F.3d 735 (10th Cir. 2005). Id. at 741. Id. at 757; see Charles W. 168 IBLA 352, 359 (2006).

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presumption is in favor of the land owner, i.e., in this case, the United States.42

As we stated in Uintah County, Utah, "[w]hether an R.S. 2477 ROW was actually established prior to repeal of the statute, and has not been abandoned, is a matter to be decided by a court under Federal law . . .

We followed this principle in County Commissioners of Mesa County, Colorado, in which we stated, with regard to BLM's decision to close certain travel routes crossing public lands: "[U]nless and unti l any claims by the County that i t possesses R.S. 2477 rights-of-way are determined to be valid by a Federal court under the Quiet Title Act, the County possesses no R.S. 2477 rights-of-way that establish legally cognizable interests in the routes at issue."44 Only a court of competent jurisdiction, pursuant to the Quiet Title Act, may issue an enforceable judgment as to whether a valid R.S. 2477 ROW exists. Appellants have provided no evidence of any such judicial determination, but rather concede that none exists.45

On appeal, Appellants argue that the historical use of OLCT supports their premise that the road is a publicly accepted R.S. 2477 ROW under Colorado state law, which they argue governs R.S. 2477 determinations in that

But without a Federal court ruling that OLCT is a valid R.S. 2477 ROW, BLM is not bound by historical use to treat this road as a valid R.S. 2477 ROW. And in any event, the record does not support Appellants' argument. The relevant local government entity - Montrose County - did not include OLCT in its 1987 request to BLM for designation of certain roads as R.S. 2477 ROWs.47

Montrose County also explicitly notified Appellants in September 2014 that i t had no interest in pursuing a ROW on any portion of OLCT.48 Nor is there any evidence that the State of Colorado has demonstrated any interest in designating OLCT an R.S. 2477 ROW.

425 F.3d 768, 770-71 n.22 and n.23; see Charles W. 168 IBLA at 361.

182 IBLA at 195; see also County Commissioners of Mesa County, Colorado, 190 IBLA 280, 294 (2017).

190 IBLA at 294. SOR at 9-10; Reply at 2-3. at 11-14. BLM Conversation Record (May 8, 2014). E-mail from Montrose County Attorney to Appellants (Sep. 4, 2014).

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Appellants further argue that within the scope of the R.S. 2477 ROW for OLCT, they are permitted to perform "routine maintenance" of the road without first consulting with BLM, and that their blading and graveling activities fall within that definition.49 Because there is no Federal court determination that OLCT is a valid R.S. 2477 ROW, however, Appellants have no right to perform "routine maintenance" on the road. But even i f the road was a valid R.S. 2477 ROW, we disagree with Appellants' characterization of the work they have undertaken on OLCT as "routine maintenance."

Any improvements to an R.S. 2477 ROW are required to be "consistent with uses to which the right of way had been put, fixed as of October 21, 1976.'"50 Appellants rely on SUWA v. BLM, for the argument that an R.S. 2477 ROW holder may conduct "routine maintenance" as long as i t remains within the scope of the road's historical uses.51 The extent of the right of the Browns or the local government to use OLCT, i.e., to maintain, improve, and use the road, would have to be defined with reference to the nature and condition of the road in 1976, when its uses were fixed.52 The Browns contend that their blading and graveling merely maintained the road for its traditional use of providing passage to members of the public traveling through the Old Lindsay Canyon.53 There is no showing that blading and graveling is consistent with the nature and condition of OLCT as it was in 1976.

BLM stated in its Trespass Decision that notwithstanding Appellants' claim that OLCT constituted an R.S. 2477 ROW, their blading and graveling activity "went beyond routine maintenance . . . and would not fall within the scope of an R.S. 2477 ROW."54 Relying on SUWA v. BLM, BLM stated that even i f Appellants could establish that OLCT constitutes an R.S. 2477 ROW, they would still lack authority to perform this type of work on OLCT.55 In SUWA v. BLM, the court defined "any significant change in the surface composition of the road (e.g., going from dirt to gravel...)" to be "construction" as opposed to

16. County San Bernardino, 181 IBLA 1, 27 (2011) (quoting SUWA, 425 F.2d

at 748). See SOR at 8-11, 16-18 (citing SUWA, 425 F.3d 735); Reply at 11-12 (same). See County San Bernardino, 181 IBLA at 27. SOR at 16-18; Reply at 11-12. Trespass Decision at 2. Id. (citing SUWA, 425 F.3d at 745-50).

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The Court noted that BLM cannot effectively exercise its land management responsibilities without knowing "in advance when right-of-way holders propose to change the width, alignment, configuration, surfacing, or types of roads across federal land . . . Thus, even if this is an R.S. 2477 ROW, Appellants were required to consult with BLM on whether their activities were "reasonable and necessary in light of the uses of [the R.S. 2477 ROW]" and could proceed without permission, or beyond the scope of uses, in which case they would require BLM permission.58

BLM found that Appellants laid new gravel on OLCT,59 and Appellants themselves repeatedly state that they applied a "thin layer" of road base to the OLCT.60 Despite lengthy arguments regarding the necessity of the work for accommodating traditional uses of the road, Appellants provide no support for their argument that laying new gravel on OLCT did not amount to a change in surface composition.61 In fact, their argument rests, in part, on the necessity, in their opinion, of altering the road's surface.62 We agree with BLM that Appellants' blading and graveling of OLCT went beyond casual use and routine maintenance.63

PENDING MOTIONS

BLM has requested, pursuant to Board regulations, that certain documents submitted in this matter be kept confidential.64 We note that the Board has not relied on any of the redacted or other confidential information to reach its determination in this case. BLM's request complied with relevant Board rules requiring that the requester identify the purportedly confidential information. The request further referenced applicable exemptions from the

SUWA, 425 F.3d at 749 n. 22 (quoting United States v. Garfield County, 122 F. Supp. 2d 1201, 1253 (2000) (emphasis added)).

Id. at 747 (emphasis added). Kane County v. U.S., 772 F.3d 1205, 1224 (10th Cir. 2014). Notice of Trespass. SOR at 17; Reply at 1-2. See SUWA, 425 F.3d at 747. See SOR at 17. See Trespass Decision at 2. BLM's Request for Certain Documents Previously Submitted to be Held

Confidential (Jan. 27, 2015).

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Freedom of Information and the common law attorney-client and attorney work product privileges as a justification for its confidentiality.66

Appellants oppose the request on the basis that they were not served a copy of BLM's administrative record, and allege that BLM has already revealed what Appellants believe to be the confidential information.67 Neither of Appellants' arguments is relevant to the factors we are to consider pursuant to 43 C.F.R. § 4.31. We therefore grant BLM's request.

CONCLUSION

Appellants do not dispute that they graded and graveled OLCT in November 2013 and July 2014, as detailed in BLM's Trespass Decision. The work amounted to unauthorized development of public lands beyond casual use. Appellants have failed to establish that OLCT constitutes an R.S. 2477 ROW, that their grading and graveling OLCT qualifies as routine maintenance of the road, or that their work was conducted pursuant to any other authorization from BLM. BLM properly issued its Trespass Decision.

Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior,68 we affirm BLM's Trespass Decision.

I concur:

5. U.S.C. § 551 (2012). 43 U.S.C. § 4.31(a) (2012). Appellants' Opposition to BLM's Request that Previously Submitted

Documents be Held Confidential (Feb. 43 C.F.R. § 4.1.

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