Outpost of Freedom blog

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

Gary Hunt
Outpost of Freedom
April 25, 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.

During the course of the constantly revised Opinion (final version, below), on June 30, 1997, Barbara Scott-Brier, Solicitor, Pacific Northwest Region, Department of the Interior, who had been working on the Draft (see Feb 28 & May 22) sends a letter to Elaine Zielinski, State Director, Bureau of Land Management {215-216}, requesting information relative said Draft. The request is for:

1. Copies of the following documents underlying the trailing route:

T31S, R32E, WM.,

Section 16, SG, 2/14/1859

OR 6773, Deed to US, 7/5/1949

Section 21, SG 8, 3/10/1890

SG 16, 9/13/1890

IL 6, 3/26/1891

Patent 772, 10/4/1890

Section 28, Patent 772, 10/4/1890

SG 28, 9/10/1892

Patent 426, 6/4/1890

Patent 7, 12/5/1884

Section 32, Patent 453, 1/11/1889

Patent 404, 1/11/1889

Section 33, Patent 7, 12/5/1884

Patent 1066, 4/16/1890

2. Copies of the GLO survey notes for T31S, R32½E, WM.
3. Any evidence that the Bureau may have that the State of Oregon has recognized a public highway along some or all portions of the trailing route.
4. Any evidence of an established legal right-of-way along a portion or all of the trailing route.
5. Any maps, photos, or documents of the trailing route area that might be pertinent in resolving this possible RS 2477 claim.

It appears that there is a bit of child-like desperation in finding a means of assuring that the RS 2477 claim can be denied. This ignores the fact, as addressed above, that RS 2477, the Mining Act of 1866, is self-fulfilling. No requirements, except usage, establish the right-of-way.

However, Elaine Zielinski responds, on August 18, 1997, with a mountain of documents, in response to the request. The response includes all of the available documents requested in the June 30 letter {270-347}.

Apparently, after the December 7, 1995 Circuit Court Final Order, awarding the Bird waterhole rights to the Hammonds, the Water Board issued the permit to the FWS. On July 24, 1997, Hammond’s attorney filed an Appeal to the issuance of the permit to the FWS, instead of the Hammonds, as the Court had ordered {264-266}. The obtained files have no copy of the permit issued to FWS.

Finally, on August 4, 1997, we have a final version of the Opinion form the Realty Department regarding “Potential Revised Statute (RS) 2477 Claim by Hammond Ranches, Inc.” {257-261}.  This began with the initial Draft on February 28. There were many subsequent versions, as the effort was to avoid any indication that there might be validity to an RS 2477 claim by the Hammonds.

To: Barbara Scott-Brier, Attorney-Adviser

Office of the Solicitor, Pacific Northwest Region

From: Chief, Division of Realty

Portland, Oregon (ARW-RE)

Subject: Potential Revised Statute (RS) 2477 Claim by Hammond Ranches, Inc.

Issue:

You asked for a review to assist in determining whether Hammond Ranches (Ranch) may have a valid RS 2477 claim of a right-of-way for moving livestock (cattle) across Malheur National Wildlife Refuge land. The existing trailing route is shown on Fish and Wildlife Service (Service) map Exhibit 1. The Service has asserted that the Ranch does not have a right to use Refuge land without a Refuge Special Use Permit. The Ranch contends that it is their historic right to use the route, although it has not asserted a right of use based on RS 2477.

Abbreviated History of Revised Statute (RS) 2477:

Revised Statute 2477 is an 1866 Federal statute granting highway rights-of-way over federal public lands and is 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 Chapter 262, Section 8 of the Act of July 26, 1866, (14 Stat. 353), a mining law act; the act was subsequently codified as RS 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, Public Law 94-576, 90 Stat. 2743, 43 U.S.C. 1701, et seq, the so-called “Organic Act” of the Bureau of Land Management (the Bureau). Because of the repeal, at issue are RS 2477 claims of grants of rights-of-way perfected after July 26, 1866, and before October 21, 1976. In this matter 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, state court decisions, and 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 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 of the 1970’s and later Wilderness Act withdrawals, caused the law to move to the forefront. States began asserting claims based on this provision for existing highways or those proposed to be built on federal lands. Furthermore, states, counties, and individuals appear to find this law to be prospectively useful in blocking wilderness designations and for gaining free access across federal lands.

The legislative history is silent as to the meaning of Section 8 of the 1866 Act. 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 RS 2477 claims, ordered the Bureau to research the issues, canvas the public and other federal agencies, and publish proposed regulations to create a process by which these claims could be identified and evaluated. The Bureau was to establish standards against which the claims were to be decided. The Bureau’s report, released on June 1, 1993, created such controversy that no regulations have been finalized to date.

Secretary Hodel’s policy was revoked by Secretary Babbitt’s January 22, 1997, memorandum (Exhibit 3), which established a revised policy for carrying out any determinations the Department might be 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 Memorandum:

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 (in this case, 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 will 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 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 policy is significantly different from prior policy. An important point is that the affected agency, not the Bureau of Land Management, makes the recommendation for the Secretary’s approval.

Fish and Wildlife Service, Region 1 Realty Actions and Findings:

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 right could be claimed. The map, Exhibit 4, shows the respective dates when the federal lands along the route became unavailable for an RS 2477 claim because of a land grant, transfer, withdrawal, or reservation. (The date inside the land status box on the map is when the land left federal ownership or was withdrawn for Refuge purposes.)

We found the following:

1) Land grants were made 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. The lands in this grant would never have been available for an RS 2477 claim since the land grant predates passage of RS 2477 (1866). This land grant is the earliest gap in the trailing route. The gap bisects the trail making it unusable as a continuous route. Other State Grants occurred in the 1880’s and early 1890’s;

2) Homestead Patents were granted in the 1880’s and 1890’s. Homestead Patents transferred lands out of federal ownership;

3) Malheur National Wildlife Refuge was first set-aside or reserved in the area of the trail on July 16, 1935, by Executive Order 7106, “Establishing The Malheur Migratory Bird Refuge, Oregon.”

Maps, Plats, and Written Documents

We researched the land status underlying the trailing route by studying the following maps and plats: Bureau of Land Management Master Title Plats, Historical Indexes, and Government Land Office (GLO) plats, including an 1877 plat; a U.S. Geological Survey quadrangle map of the area; a Fish and Wildlife Service Land Status Map; and the “Map of French-Glenn Live Stock Co. Property, Harney Co., Oregon dated November 27, 1908. We also looked at the Executive Orders file, which contains the history of federal land reservations, withdrawals, and transfers concerning the refuge. We looked for unreserved public land on which a public highway existed or may have existed between 1866 and 1976.

We found the following. The 1877 plat shows a “wagon road” traversing the plat from NE to SW. This road corresponds in part to the trailing route the Ranch is using. The GLO survey was conducted in late 1877. It is likely that the road was in existence before the survey, although we do not know when. The 1908 “French-Glenn Map” shows a “wagon road” that corresponds in part to the route the Ranch is using.

We recommend reviewing the survey notes and records to determine whether there is any evidence as to when the wagon road was built.

Construction of Highways

We did not find evidence of construction of a public highway for passage of vehicles carrying people or goods. Few portions of the trailing route qualify as constructed road; and one of those places, a crossing over Bridge Creek, was constructed in the early 1990’s.

We recommend looking at the Patents to determine whether there were any right-of-way reservation(s) in them. The Survey Branch suggested we review County and Road Commissioner’s Journals, and reports from Road Supervisors, the County Road Master, and the County Surveyor. We recommend investigating records from Harney County and its predecessor to determine whether there were any petitions to open a road corresponding to the trailing route, and whether any monies were spent on construction and/or maintenance for such a road.

Analysis:

The trailing route was actually broken as a continuous route in 1859 when the first State Grant of public lands occurred along the route. Assuming for argument’s sake that the 1859 grant did not break the route, there were unreserved federal public lands along the trailing route between 1866 and 1884.

We found no evidence of construction between 1866 and 1976, although we found mention of a “wagon road.”

A key question may be whether the County or State ever acknowledged prior to 1976 the entire route as a public highway. Another question is whether if there were a public highway, was it on the “wagon road” or the current trailing route. If the former, could there be a public highway on the trailing route since it deviates from the “wagon road.”

Conclusion and Recommendations

In conclusion, at this time we have not found evidence supporting an RS 2477 claim. If even a small portion of the route was not a public highway, then in our view the claim would not be valid over the entire route.

However, as noted above, we recommend conducting additional research due to some uncertainties regarding this matter. First, we recommend that your office ask the Bureau of Land Management to provide some basic information from their files, particularly: dates of patents; any recognition of travel routes; any evidence of right(s)-of-way; and historical maps, photos or documents of travel routes in the trailing area. We recommend that we then review those documents as well as possibly County records. After the above research is complete, we may also need to research the certain issues such as the meaning of “construction of highways”.

Thank you for your assistance in this mater. If you have further questions, please call Bob Hiller at 503-231-6201.

In reviewing those documents, you will see that they went from one suggesting that there was a valid RS 2477 claim, to the final version, in which they suggest that there is no valid claim, though they leave it open by suggesting subsequent research into what “construction” means.

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 4 – May 22, 1997

 

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