The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 4 – May 22, 1997

The Harassment of the Hammonds
Act II – Decade of the Nineties
Scene 4 – May 22, 1997

Hammond-family

Gary Hunt
Outpost of Freedom
April 21, 2016

This series is not about the two fires and subsequent conviction of Dwight and Steven Hammond.  It is about the abuse, by government agencies, in the two decades prior to the first fire.

Note: Numbers shown thus, {nn} refer to PDF page numbers in the “Hammond Legal Trailing File Part II” pdf file.

On May 22, 1997, Bob Hiller, author of the draft opinion dated February 27, faxes a revised draft {163-171}. The revised draft is as follows:

Subject: Potential Revised Statue (RS) 247 Claim by Hammond Ranches, Inc.

Issue:

You asked for a review to determine whether Hammond Ranches (Ranch) may have a valid RS 2477 claim of a stock driveway for moving livestock (cattle) across Malheur National Wildlife Refuge land. The route is shown on Fish and Wildlife Service (Service) map Exhibit 1. The Service has told Hammond Ranches they do not have a right to use Refuge land without a Refuge Special Use Permit (SUP). The Hammond’s say it is their historic right to use the route. However, to date, they have not asserted the right of use of the driveway based on RS 247. To resolve this dispute we need to refute the historic use claim and potential RS 247 assertion, and uphold our right to control use on the Refuge. One method of controlling and authorizing stock driveway use is to grant a SUP.

Abbreviated Revised Statue (RS) 2477 History:

Revised Statute 2477 is an 1866 Act (Federal law) “granting” highway rights-of-way over Federal public lands stated in deceptively simple language:

“The right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”

This grant was originally found in law in Chapter 262, Section 8 of the Act of July 26, 1866 (14 Stat. 353), a mining law act; was subsequently codified as Revised Statue (R.S.) 2477; and was later recodified in 1938 as 43 U.S.C. 932. The statute was repealed by Section 706(a) of the Federal Land Policy and Management Act of October 21, 1976 (FLPMA), Public Law 94-576, 90 Stat. 2743, 43 U.S.C. 1701, et sect, the so-called “Organic Act” of the Bureau of Land Management (the Bureau). Because of the repeal, we are generally concerned about RS 2477 “claims” of grants of right-of-ways “perfected” after July 26, 1866 and before October 21, 1976. Specifically, we are interested in claims between July 26, 1866 and the date on which the underlying Federal public domain land was “set-aside” (federal land withdrawals and reservations) for some federal purpose, or was deeded (granted or transferred) out of Federal ownership.

Revised Statue 2477 has been the subject of inconsistent state statutes and court decisions, and a handful of inconsistent federal court decisions, during its 110-year existence. Almost all of the reported state court decisions involved competing rights of third parties. The United States was not a party to them.

For a long time not much was made of or done with this provision of law. In fact it did not elicit much reaction until after its repeal in 1976. The large public lands set-asides (reservations and withdrawals) of the 1970’s and later, particularly Wilderness Act withdrawals, caused the law to move to the forefront. States began citing this provision in asserting their claims for existing highways or those to be built on Federal lands. In many cases, the States were counting on RS 2477 claims to block pending wilderness designations. Furthermore, states, counties and individuals have found this law to be prospectively useful for gaining free access across Federal lands.

The legislative history is silent as to the meaning of Section 8 of the 1866 Act. This is a major reason why interpretation and application of the law is difficult and confusing. There is no legislative guidance as to what Congress had in mind for this grant of right-of-way across Federal lands.

Between its passage in 1866, and its repeal in 1976, no changes were made to Revised Statue 2477. The only understanding or interpretation of it comes from inconsistent case law. States, counties, and others wanting to apply the law asserted it as a basis for rights-of-way across federal land. There were no regulations or specific guidance for its application until 1988. On October 7, 1988, Secretary of the Interior Hodel issued “Secretarial Guidance” as “Departmental Policy on Section 8 of the Act of July 26, 1866, Revised Statute 2477 (Repealed), Grant of Right-of-Way for Public Highways (RS 2477)” (Exhibit 2).

The Bureau was tasked with processing RS 2477 claims and determining their validity. In 1992, Congress, after hearing from constituents and agencies about the problems of determining these rights, ordered the Bureau to research the issues. The Bureau was to canvas the public and other federal agencies, and publish proposed regulations. They were to create a process by which these claims of valid existing rights could be identified and evaluated. The Bureau was to establish standards against which the claims were to be decided. The Bureau released its report on June 1, 1993. The report created such controversy that no regulations have been finalized to date. In July 1994, in response to the Service’s inquiry, the Bureau’s Oregon State Office stated that RS 2477 assertions are still allowed, but their processing was on nationwide hold pending the issuance of final rules.

The Hodel policy was revoked by Secretary Babbitt’s January 22, 1997 guidance memorandum (Exhibit 3). This established a revised policy for carrying out any determinations the Department might he called upon to make regarding RS 2477. The Secretary also reaffirmed his previous instructions to the Bureau to defer processing of RS 2477 assertions except in cases where there is a demonstrated, compelling and immediate need to make such determinations. Secretary of Interior Babbitt’s RS 2477 Policy:

Secretary Babbitt’s January 1997 memorandum provides the following six provisions:

1.Claims. The entity requesting the Department to make a determination as to whether an RS 2477 right-of-way exists must file written information to be considered and must provide information on why there is a compelling and immediate need for such a determination.

2.Withdrawals and Reservations. The agency involved (the Service) will consult the public land records of the Bureau of Land Management to determine the status of land over which the claimed right-of-way passes. If such lands were withdrawn, reserved, or otherwise unavailable at the time that the highway was allegedly constructed and remained unavailable through October 21, 1976, the Service would recommend the Secretary deny the claim.

3.Construction. The Service will examine all available documents and maps and perform an on-site examination to determine whether construction occurred prior to the repeal of RS 2477 on October 21, 1976.

4.Highway. The Service will evaluate whether the alleged right-of-way constitutes a highway, that is, a thoroughfare used prior to October 21, 1976 by the public for passage of vehicles carrying people or goods from place to place.

5.Role of State Law. The Service will apply state law in effect on October 21, 1976, to the extent it is consistent with federal law.

6.Secretary’s Determination. The Service will make recommendations on the above issues and the Secretary will approve or disapprove those recommendations.

This new (Babbitt) policy is significantly different from prior (Hodel) policy. An important point is that the affected agency, not the Bureau makes the recommendation for the Secretary’s final approval.

FWS Region 1 Realty Actions and Findings:

Maps, plats, and written documents

We researched the land status underlying the stock driveway route by studying the following maps and plats: Bureau Master Title Plats, Historical Indexes, and Government Land Office plats, including an 1877 plat: a U.S. Geological Survey quadrangle map of the area: a Fish and Wildlife Service Land Status Map; and “Map of French-Glenn Live Stock Co. Property, Harney Co., Oregon dated 11/27, 1908. We also looked at the “Executive Orders” file, which contains the history of the Refuge so far as federal land reservations, withdrawals and transfers are concerned. We were looking for “unreserved public land” on which a highway existed between 1866 and 1976; and for a built (constructed) public trail, road, or “driveway” which coincides with the route the Ranch is using. The GLO plat shows a “Wagon Road” (highlighted) traversing the plat from NE to SW. This road mostly corresponds to the stock driveway the Hammonds are using. The Road would have to have been in existence at the time of the GLO survey in late 1877. It is likely that it had been in existence before the survey, though presently we do not know how long. We need to look at the survey notes/record to find out more about it. We should ask the Bureau to provide copies of the survey notes.

Land Grants, Transfers, Withdrawals and Reservations

The RS 2477 enactment date of July 26, 1866 and the various land grants, transfers, withdrawals and reservations through 1935, create a window during which an RS 2477 could be claimed. Exhibit 1, map, shows these dates. The dates are when the Federal land became unavailable for an RS 2477 assertion because of a land grant, transfer, withdrawal or reservation. The date inside the “land status box” is when the land left Federal ownership or was withdrawn for Refuge purposes, closing the RS 2477 windows. We found: 1) land grants to the State of Oregon (State Grants) that the present trailing route crosses. The earliest State Grant, near the north end of the route, is dated 1859. This grant is the earliest gap” in the stock driveway’s route because after the grant, the lands would be unavailable for an RS 2477 claim unless specifically reserved in the grant. The gap bisects the driveway making it unusable as a continuous route. Most State Grants occurred in the 1880’s and early 1890’s; 2) Homestead Patents granted in the 1880’s and 1890’s. Homestead Patents transferred land out of Federal ownership; 3) that Malheur National Wildlife Refuge was first set-aside or reserved in the area of the Ranch driveway by Executive Order 7106, on July 16, 1935, “Establishing The Malheur Migratory Bird Refuge, Oregon.”

Construction of Highways

We did not find evidence of construction of a public highway for passage of vehicles carrying people or goods. The “French-Glenn Map” shows a “wagon road” that roughly corresponds to the route the Ranch is using. Few portions of this route qualify as constructed road, and one of those places, a crossing over Bridge Creek was constructed in the early 1990’s. We did not look at Patents for a right-of-way reservation. Our Survey Branch suggested another source of evidence of trail or road construction, which we did not look at. These sources are County and Road Commissioner’s Journals, Road Supervisor’s Reports, the County Road Master, and the County Surveyor. Both Harney County and its predecessor county (Coos?) records should be investigated. We would look for petitions to open a road corresponding to the stock driveway, and monies spent on construction and/or maintenance for such road. However, because of the sensitivity of this issue, we would not recommend opening these discussions at this time.

Conclusion and Recommendation:

We found narrow windows of opportunity for an RS 2477 claim between 1866 and 1884 The windows occur because there was unreserved Federal public land along the stock driveway route, unreserved land must be available for an RS 2477 assertion to be valid. Although we found no evidence of construction, if use of the stock driveway for moving livestock equals “construction of highways”, cited in Secretary Babbitt’s January 22, 1997 memorandum; and if the use was at the proper time, and if the route is accepted as a public highway, then predecessors of the Ranch and the Ranch could assert an RS 2477 claim. A key question is whether the County or State acknowledged the entire route as a public highway during any of the windows. If even a small portion of the route is not acknowledged as a public highway, then the claim would not be valid over the entire route. It is important to note that we did not look at the County sources described above which could have critical bearing on the assertion of an RS 2477 claim. An RS 2477 assertion may be possible. However, we have not found evidence supporting such a claim.

Due to several uncertainties regarding this matter, our recommendation is that the Solicitor should ask the Bureau’s State Office to provide some basic information from their files that might quickly clarify some of our questions. Examples include dates of patents; recognition of travel routes; evidence of rights-of-ways; and historical maps, photos or documents of travel routes in the trailing area. Also at sometime in the future, we need to review the County records when the timing is appropriate. We don’t want to alert the County early on.

This is one of many revisions, showing the care in not giving anything out that would help the Hammonds. The final letter will come up in its chronological place.

Perhaps it is time for us to look at the Mining Act of 1866, especially that provision that addresses rights-of-way. Understand that though the Act was written with regard to mining, it was considered, for over a century, to apply to any use of a roadway over public lands. Quite frankly, back then, most of the western regions were public lands. Settlement tended to come well after the Civil War. Whether crossing public lands to get to Oregon (the Oregon Trail), or to stop and settle, mine, or start a ranch, the law as it existed then applied to any passage over public lands.

It is safe to assume, as with the old Oregon Trail, that lack of continued use might be grounds for an abandonment of that right of passage. Much of the old Oregon Trail has been replaced by highway, and cars tend to prefer paved roads. However, cattle aren’t as finicky, and probably prefer the softer ground, while the rancher prefers the shortest distance between two points. From the Act:

SEC. 8. And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.

[I]s hereby granted” requires no act, no application, no permission, no involvement by the government — it exists. And, it did so until that provision was repealed. However, a right-of-way established under the Act was not repealed with the repeal of the Act.

As pointed out in a previous article (Act I – Scene 4), an Affidavit by the Ash, Wetzel, and Miller, was filed in February 1973, prior to the Repeal of RS 2477 in 1976. The affidavit states that the road was in use for over thirty years prior to the date of the Affidavit.

That we, and each of us, know of our own knowledge that said access road, for a continuous and uninterrupted period in excess of thirty years has been and is now in general use by land owners served by said access road, by employees of the federal government and of the state of Oregon, and by members of the public generally; and that at no time has the use of said access road, for a period in excess of the past thirty years, been denied to any member of the public or to any of the owners of any of the ranch land served by said access road.

So, clearly, the right of what met all of the requisite conditions as existed before the repeal. The continuous use is clearly established, and no subsequent act or rule can remove that right, so clearly established by an act of Congress in 1866.

All that remains is to revisit “construction”, regardless of what was said in Hiller’s opinion of May 22.  Hiller says:

3. Construction. The Service will examine all available documents and maps and perform an on-site examination to determine whether construction occurred prior to the repeal of RS 2477 on October 21, 1976.

So, would he expect that those miners, back in 1866, would have used heavy equipment to construct their roads? At best, the extent of most construction would entail moving some boulders, perhaps cutting some trees (the evidence of which would be long gone, by now), and, perhaps, having worn a path into the ground from the traffic that used the “road” to get from here to there.

To Be Continued

The Harassment of the Hammonds – Act I – Scene 1 – Introduction

The Harassment of the Hammonds – Act I – Scene 2 – October 24 1986 – March 20 1987

The Harassment of the Hammonds – Act I – Scene 3 – April 2, 1987 – April 15, 1987

The Harassment of the Hammonds – Act I – Scene 4 – May 6, 1987 – April 22, 1988

The Harassment of the Hammonds – Act I – Decade of the Eighties- Scene 5 – May 2, 1988 – May 9, 1988

The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 1 – Feb. 18, 1994 – June 9, 1994

The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 2 – June 28, 1994 – Feb. 22, 1997

The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 3 – Feb. 28, 1997 – May 21, 1997

 

The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 5 – June 30, 1997 – Aug. 4, 1997

The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 6 – Feb. 25, 1998 – Jan. 12, 2004

 

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