County of Shoshone v. United States (912 F. Supp. 2d 912, 2012)

MEMORANDUM DECISION AND ORDER RE:

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (Docket No. 32)

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Docket No. 36)

RONALD E. BUSH, United States Magistrate Judge.

Now pending before the Court are (1) Plaintiffs’ Motion for Partial Summary Judgment (Docket No. 32), and (2) Defendants' Motion for Summary Judgment (Docket No. 36). Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

I. INTRODUCTION

This action speaks to a controversy rooted deep into the early history of Idaho, involving the legal status of claims to rights-of-way for the construction of roadways across federal lands. Here, the Court is asked to decide the legal status of a mountainous passage route that dates to 1884, located in Shoshone County, Idaho, referred to by the parties as the “Eagle Creek Road.”

In 1866, Congress enacted an open-ended grant of “[t]he right[-]of[-]way for the construction of highways over public lands, not reserved fdr public uses .... ” Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by Federal Land Policy Management Act of 1976 (“FLPMA”), Pub.L. No. 94-579 § 706(a), 90 Stat. 2748. Commonly called “R.S. 2477” after its residing place in the 1866 volume of Revised Statutes, , this offer of a right-of-way over unreserved federal land remained in effect for 110 years, and “most of the transportation routes of the West were established under its authority.” Southern Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 740-41 (10th Cir.2005) (“During that time, congressional policy promoted the development of the unreserved public lands and their passage into private productive hands; R.S. 2477 rights-of-way were an integral part of the congressional pro-development lands policy.”).

In enacting FLPMA in 1976, Congress abandoned this approach to public lands by moving to a different policy which emphasized the retention of federal lands with an increased emphasis on conservation and preservation. See id. at 741 (citing 43 U.S.C. § 1701 et seq.).

Even though FLPMA repealed R.S. 2477, it nonetheless preserved any rights-of-way that existed before FLPMA’s October 21, 1976 effective date, and any such qualifying rights-of-way remain valid today. See 43 U.S.C. § 1769(a); see also Southern Utah Wilderness Alliance, 425 F.3d at 741 (“[FLPMA] thus had the effect of ‘freezing’ R.S. 2477 rights as they were in 1976.”) (citing Sierra Club v. Hodel, 848 F.2d 1068, 1081 (10th Cir.1988)). No R.S. 2477 right-of-way may be established, however, once the land in question is withdrawn from the public domain or included within a reserve. See Adams v. United States, 3 F.3d 1254, 1258 (9th Cir.1993); see also United States v. Jenks, 804 F.Supp. 232, 235-36 (D.N.M.1992) (roads created after Presidential proclamation reserved land as national forest were, not public roads under R.S. 2477).

Still, Congress never specified a particular method or procedure for establishing R.S. 2477 rights-of-way. Indeed, “the establishment of R.S. 2477 .rights[-]of[-]way required no administrative formalities: no entry, no application, no license, no patent, and no deed on the federal side; no formal act of public acceptance on' the part of the states or localities in whom the right was vested.” Southern Utah Wilderness Alliance, 425 F.3d at 741; see also Report to Congress on R.S. 2477: The History and Management of R.S. 2477 Rights-of-Way Claims on Federal and Other Lands (June 1993) (explaining that R.S. 2477 highways “were constructed without any approval from the federal government and with no documentation of the public land records, so there are few official records documenting the right-of-way or indicating that a highway was constructed on federal.land under this authority.”). This, coupled with the fact that parties rarely had need to wrestle with R.S. 2477 issues while the statute was still in force (especially when considering the federal government’s pre1976 policy of opening and developing public lands), can make for a difficult, well-after-the-fact, task to- prove an R.S. 2477 right-of-way, sending litigants to “the historical archives for documentation of matters no one had reason to document .at the time.” Southern Utah Wilderness Alliance, 425 F.3d at 742.

This case presents such a task for Plaintiffs. Answering the question of whether Eagle Creek Road is an R.S. 2477 right-of-way requires an examination of events taking place between: (1) 1884, when the Eagle Creek Road first came into existence to help miners and merchants traverse from Montana' into Coeur d’Alene gold fields, and (2) November 6, 1906, when President Theodore Roosevelt created the Coeur d’Alene Forest Reserve and withdrew/reserved the land upon which the Eagle Creek Road is located from .the public domain (see Defs.’ Ex. 77 (President Roosevelt’s proclamation reserving lands that became the Coeur d’Alene Forest Reserve)). See e.g., Adams, 3 F.3d at 1258 (“To establish a[n] [R'.S. 2477 right-of-way], the Adamses must show that the road in question was built before the surrounding land lost its public character in 1906.”) (citing Humboldt Cnty. v. United States, 684 F.2d 1276, 1281 (9th Cir.1982)).

Not surprisingly, given the length of time since the events underlying this lawsuit, there is no direct testimony about the history of the road. All of the evidence is drawn from the historical record — from contemporaneous bút' still extant written accounts of the creation and use of the route, or from government records touching upon the mining claims in the vicinity, or from the records of other governmental activities relating to the ongoing business of the vicinity. There are maps of many forms, newspaper articles from the gold rush maelstrom of the time, records of patented and unpatented mining claims, and historical accounts authored at different times over the last century by local historians or government agencies. The record is an enormous patchwork of such evidence, with interlocking pieces in some instances, and missing parts in other instances.

The Court has scrutinized, considered, and weighed each of the hundreds of documents in the record. The Court has carefully read the parties’ respective historical narratives, offered through the reports or declarations of those employed to trace the history of the road. The parties’ briefing, which places the historical record upon the legal template of R.S. 2477 and applicable Idaho law, was a great aid to the Court, and has been pondered at length.

II. GENERAL BACKGROUND

Plaintiffs Shoshone County, George Stephenson, and New Jersey Mining Company (collectively “Plaintiffs”) bring this action against, among many others, Defendant U.S. Forest Service (collectively “Defendants”), seeking to re-open Eagle Creek Road to public access. See Pis.’ Compl. (Docket No. 1) (asserting four, interrelated, claims for relief). Despite the underlying dispute, the parties generally agree upon many of the historical facts giving rise to Eagle Creek Road and, thus, the foundation for the Court’s consideration of the parties’ cross motions for summary judgment.

In 1883, in the quintessential rush following the discovery of gold near Prichard Creek (a tributary to the North Fork of the Coeur d’Alene River), the mining camp of'Eagle City was thrown down in the area where Eagle Creek joins Prichard Creek. The location was near the first placer claims, and took advantage of one of the few “flats” found in the otherwise heavily timbered and steep countryside. Much of the “rush” to Eagle City took place in the Fall and Winter of 1883, and on into the early months of 1884, when entrepreneurs in Belknap, Montana (located on the Northern Pacific Railroad’s main line) sought ways to take a merchant’s profit from the eager gold seekers headed for the Eagle Creek district. These businessmen immediately set about trying to build the most direct route the topography would allow between Belknap and Eagle City (crossing over the summits of the Bitterroot Mountains that divided the Montana Territory and the Idaho Territory) and then promoted the “Belknap Trail” route to new arrivers even as it was just being established, as the shortest route to the gold claims. The parties disagree as to the exact form of Eagle Creek Road in those early years, but they do agree that whatever form it did take, it existed over some part of the Belknap Trail. See Pis.’ SOF, p. 2, ¶¶ 5 (Docket No. 32, Att. 2); see also Defs.’ SOF, p. 1, ¶¶ 1-2 (Docket No. 37); Pis.’ Resp. to SOF, pp. 1-2, ¶¶ 1-2 (Docket No. 50, Att. 1).

By the Spring of 1885, however, nearby Murray, Idaho supplanted Eagle City as the center of mining activity in the area. See Defs.’ SOF, p. 1, ¶ 3 (Docket No. 37); see also Pis.’ Resp. to SOF, p., 2, ¶ 3 (Docket No. 50, Att. 1). As a result, other routes, more direct to Murray, began connecting the Northern Pacific Railroad in Montana and the Coeur d’Alene gold fields. One was the “New Belknap Trail,” which altogether avoided Eagle Creek Road and Eagle City, shortening the distance between Belknap and Murray by approximately six miles. See Defs.’ SOF, pp. 1-2, ¶ 4 (Docket No. 37); see also Pis.’ Resp. to SOF, pp. 2-3, ¶ 4 (Docket No. 50, Att. 1).

Despite agreement about some historical facts, the parties differ in their respective characterizations of Eagle Creek Road’s importance, use, and maintenance over time. That disagreement is a central fulcrum of this lawsuit, and one which the Court must resolve in order to decide the pending motions.

For example, notwithstanding the ascension of Murray over Eagle City, coupled with the emergence of the New Belknap Trail, Plaintiffs contend that activity along Eagle Creek Road “did not materially change” as evidenced by the mining records, government declarations in county commission records, voting records, and purported county maintenance of the road:

• Petitions from residents of Ellensburg, Idaho (located in the Eagle Creek drainages upstream from the town) in March and April of- 1885 to the Shoshone County Board of Commissioners requested the declaration of a county road from Ellensburg to Eagle City. Plaintiffs contend such a declaration must have been made, even though there is no record of such, because the Commissioners, on July 13, 1885, did-enact a declaration of county road between the “Ellensburg to Eagle Road” and Doctorville, Idaho (another mining camp in the Eagle Creek drainage), demonstrating that the petition for the Ellensburg to Eagle Road was granted, but inadvertently omitted from the Shoshone County Commissioners Minutes. See Pis.’ SOF, pp. 4-6, ¶¶ 13-14 '& 18-20 (Docket No. 32, Att. 2); see also Pis.’ Resp. to SOF, p. 3, ¶ 5 (Docket No. 50, Att. 1).

• A number of government mineral surveys between 1887-1888 reference “a good wagon road” and “a good trail” attributable to Eagle Creek Road. See Pls.’ SOF, p. 4, ¶ 15 (Docket No. 32, Att. 2).

• Several maps printed between 1891-1904 identify the Belknap Trail and the Eagle Creek Road. See Pls.’ SOF, p. 5, ¶ 16 (Docket No. 32, Att. 2); see also Pls.’ Resp. to SOF, p. 3, ¶ 6 (Docket No. 50, Att. 1).

• The April 10, 1906 - Shoshone County Commissioners Minutes report a petition from citizens requesting “the appropriation of funds to assist in the improvement of the wagon road now extending from the old Town of Eagle to the confluence of the East and West Forks of Eagle Creek to the placer camp of Smith & Dunlap, and for the establishment of a new road from the camp of Smith & Dunlap to the mouth of Tributary Creek.” See Pls.’ SOF, p. 5, ¶ 17 (Docket No. 32, Att. 2); see also Pls.’ Resp. to SOF, p. 4, ¶ 8 (Docket No. 50, Att. I).

• In the 1884-1885 Legislative Session, Idaho’s Territorial Legislature passed An Act to Amend an Act Regulating Roads, Highways and Public Thoroughfares in Idaho Territoi"y — requiring that counties create road districts, appoint supervisors of roads to run the road districts, and assess taxes, spend money, and engage labor to maintain the roads in such districts. Consistent with this law, on January 21, 1885, the Shoshone County Commissioners established District No. 2, which included Eagle Creek Road. Nearly a month later, however, the Shoshone County Commissioners created a new Road District — District No. 6 — which included most of the Eagle Creek drainage; the only known road within District No. 6 was Eagle Creek Road. Thereafter District No. 6 merged into District No. 2 and, between 1885-1906, taxes were collected and expenditures were made for roads within that District. See Pis.’ SOF, pp. 6-7, ¶¶ 21-28 (Docket No. 32, Att. 2).

• Along with unpatented mining claims, several patented mineral claims were granted within the East Fork of Eagle Creek drainage before 1906, upon which these claims relied upon the Eagle Creek Road for access. See Pis.’ SOF, p. 8, ¶¶ 30-31 (Docket No. 32, Att. 2); see also Pis.’ Resp. to SOF, pp. 2-4, ¶¶ 3 & 7 (Docket No. 50, Att. 1).

In stark contrast, Defendants assert that, nearly as quick as the Eagle Creek Road portion of the Belknap Trail came into existence, miners and the new fortune seekers abandoned Eagle City for Murray (the minerals in the area having either played out, already been claimed, or having proved too difficult to mine profitably). According to Defendants, Eagle Creek Road was no longer needed and, thus, no longer regularly used as a thoroughfare connecting the railroad to the area, commenting:

• By May of 1885, Eagle city was almost entirely deserted and the center of mining activity in the area shifted to the small town of Murray, Idaho. With the rapid demise of Eagle City, there is no indication that additional work occurred on the Eagle Creek route until after the 1906 Forest reservation. See Defs.’ SOF, p. 1, ¶ 3 (Docket No. 37).

• Also in 1885, a few miners at the Ellensburg mining camp sought to complete the Eagle Creek route. Realizing that business interests in Belknap and Eagle City had no incentive to either maintain or complete the route, they petitioned Shoshone County “for a road from Eagle” to the camp. The County asked for a second petition, which the residents presented, but the historical record contains no direct evidence that the County ever approved the petition. The Ellensburg camp disappeared by 1888. See Defs.’ SOF, p. 2, ¶ 5 (Docket No. 37).

• The Eagle- Creek’ route slipped into obscurity. Several maps of the region in the 1890’s and early. 1900’s contain no mention of the route, at all, suggesting that any then-contemporaneous reference to the. same reflected only the occasional miner in the area. The general inaccessibility of the area, with a paucity of level ground, poor soils, and a short growing season kept settlers, loggers, and ranchers away. Travel up the route was a “slow and painstaking effort,” with high water crossings that made travel “quite difficult and dangerous.” Horse travel was often impossible and there are no accounts of travel by wagon. Much of the route was in the creek itself. See Defs.’ SOF, p. 2, ¶ 6 (Docket No. 37).

• Mining activity, though present as of 1885, was extremely limited. For example, in 1904, there were only seven mining claims reported within the East Fork of the Eagle Creek drainage, with only one placer operation known to have been working during the period in questioh. As late as 1912, only a “few miners” lived in or near the area. See Defs.’ SOF, pp. 2-3, ¶ 7 (Docket No. 37).

• In 1906, several attempts were made to obtain public funding for the Eagle Creek route but they were unsuccessful. Two petitions were submitted to Shoshone County to “assist” with “improvement” and “betterment” of the route and to “establish” or “create” a road to the mouth of-Tributary Creek. Both were explicitly “tabled” and rejected by the County. At about the same time, the Idaho Intermbuntain Wagon Road Commission considered a petition for the construction of a road from the Dunlap and Smith placer camp to Jack Waite Forks. The Commission rejected this petition because the proposal “seemed to be largely for the benefit of one mine.” See Defs.’ SOF, p. 3, ¶ 8 (Docket No. 37).

Armed with their own version of the historical ■ facts surrounding this action, both parties move for summary judgment concerning the legal status of Eagle Creek Road as contemplated by R.S. 2477 and the case law interpreting its application to situations like this.

For their part, Plaintiffs argue that Eagle Creek Road constitutes an R.S. 2477 right-of-way as a matter of law because, during the relevant time period, it represented a “highway” under Idaho law due to its (1) regular public use over the requisite period of time, (2) declaration as a “county road” by Shoshone County, and (3) maintenance by Shoshone County at the public’s expense. Nee-Pis.’ Mem. in Supp. of Mot. for Partial Summ. J. (“Pis.’ MSJ”), pp. 1, 10-17 (Docket No. 32, Att. 1). Alternatively, Plaintiffs argue that, in response to the Shoshone County Board of Commissioners’ relatively recent validation of Eagle Creek Road as a public right-of-way, Defendants never sought judicial review of that decision under Idaho law and are therefore barred from now objecting to Plaintiffs’ attempt at establishing Eagle Creek Road as an R.S. 2477 right-of-way. See id. at pp. 1,17-20.

Defendants not only dispute Plaintiffs’ arguments, but affirmatively seek an opposite ruling — namely, that Eagle Creek Road is not an R.S. 2477 right-of-way as a matter of law. .See Defs.’ Mem. in Supp. of Mot. for Summ. J./Opp. to Pis.’ MSJ (“Defs.’ MSJ”), pp. 13, 23-38 (Docket No. 40). Defendants also raise procedural árguments that preliminarily (1) challenge Plaintiffs George E. Stephenson’s and New Jersey Mining Company’s standing to pursue this action, and (2) contend Plaintiffs’ claims are altogether time-barred. (See id. at pp. 13-23).

The Court heard oral argument on the parties’ cross motions for summary judgment in the federal courthouse in Coeur d’Alene, Idaho. The following day, the Court, the parties, their representatives, and the parties’ counsel participated in a site inspection of Eagle Creek Road. Pursuant to the agreement of all parties, the site inspection involved an auto-tour of the portions of Eagle Creek Road open to automobile travel, followed by foot travel over the portion of Eagle Creek Road that is not open to automobile travel. The particular sections of Eagle Creek Road so traveled are identified as different sections in the map exhibits and briefing submitted by the parties in conjunction with the pending motions.

Following the site inspection, the Court permitted the parties to file a written follow-up, giving each party an opportunity to connect their written and oral arguments as to the pending motions with the observations made during the site inspection. Those written follow-ups have since been submitted to the Court (see Docket Nos. 63-66), along with several notices of supplemental authority (see Docket Nos. 67, 68, 70, 72-73, & 79-80). Therefore, this Memorandum Decision and Order resolves the issues presented by the parties’ briefing to date.

III. STANDARD OF LAW

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as .a-matter of law. See Fed.R.Civ.P. 56; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). One of the principal • purposes of the summary judgment “is to isolate and dispose of factually unsupported claims .... ” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It is “not a disfavored procedural shortcut,” but is instead the “principal tool [ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327, 106 S.Ct. 2548. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505.

The evidence, including all reasonable inferences - which may be drawn therefrom, must be viewed in a light most favorable to the non-moving party and the Court must not make credibility findings. See id. at 255, 106 S.Ct. 2505. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir.1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir.1988).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the non-moving party’s case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).

This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in his favor. See id. at 256-57, 106 S.Ct. 2505: The non-moving party must go beyond the pleadings and show “by [his] affidavits, or by the depositions, answers to interrogatories, or admissions on file” that a genuine issue of material fact exists. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

As a general rule, the Court is “not required to comb through the record to find some reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir.2001) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir.1988)). Instead, the “party opposing summary judgment must direct [the Court’s] attention to specific triable facts.” Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir.2003). An exception to this rule exists when cross-motions for summary judgment are filed. In that case, the Court must independently search the record for issues of fact. See Fair Housing Council of Riverside Co., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001).

In cases such as this, contemporaneous direct evidence is hard to come by and is, not surprisingly, largely absent from this record. What remains — circumstantial evidence — is appropriately considered, but in order to support a party’s argument, such evidence, must be more than mere conclusions, and the strength of such evidence turns upon the strength.of the inferences to be drawn from the evidence, particularly when measured against the larger context of all of the historical record.

IV. DISCUSSION

A. The Quiet Title Act and the NonGovernmental Plaintiffs’ Standing

As a limited waiver of sovereign immunity, the Quiet Title Act is the sole avenue by which Plaintiffs can prove the existence of its R.S. 2477 rights in court. See Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 286, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983) (holding that Quiet Title act is “the exclusive means by which adverse claimants [may] challenge the United States’ title to real property.”). Under the Quiet Title Act, the United States may be named as a party defendant in a civil action to. adjudicate a disputed title to real property in which the United States claims an interest. See 28 U.S.C. § 2409a(a). However, the Quiet Title Act sets forth heightened pleading requirements: a plaintiff asserting a claim under the Quiet Title Act must “set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States.” See 28 U.S.C. § 2409a(d).

Defendants concede Plaintiff Shoshone County’s standing to pursue this action. However, Defendants argue that the nongovernmental Plaintiffs — George E. Stephenson and the New Jersey Mining Company — have no recognized interest in title to the alleged right-of-way (Eagle Creek Road) and therefore lack standing to bring a quiet title suit against the United States. See Defs.’ MSJ, p. 14 (Docket No. 40). Plaintiffs contend that these two Plaintiffs maintain the requisite right and interest in Eagle Creek Road because, as Shoshone County residents and property holders, Idaho law permits them to petition the county to initiate public proceedings to validate a highway or public right-of-way (or, as the case may be, challenge any validation). See Pis.’ Resp. to Defs.’ MSJ and Reply, pp. 28-30 (Docket No. 49) (citing I.C. §§ 40-203A(l) & (4)) (“... under Idaho laws, members of the public who have specialized and unique interests in the right-of-way should be able to bring suit to protect their rights when the federal government seeks to infringe on those rights.”).

Unquestionably, these non-governmental Plaintiffs have some interest in seeking a reopened Eagle Creek Road. Still, those interests — however they may be defined — are shared by the public at large (at least insofar as the public consists of “any resident or property holder” in Shoshone County, as expressed within Idaho Code section 40-203(A)). “Courts which have addressed whether a plaintiff, as a member of the public, can assert a title under the Quiet Title Act for access to routes established pursuant to R.S. 2477 have ruled that there is no subject matter jurisdiction.” Friends of Panamint Valley v. Kempthorne, 499 F.Supp.2d 1165 (E.D.Cal.2007). In other words, the right to use a public road is not itself a right or interest in property as recognized by the Quiet Title Act. See Public Lands for the People, Inc. v. U.S. Dept. of Agriculture, 733 F.Supp.2d 1172, 1193 (E.D.Cal.2010). “Th[at] interest ... must be some interest in the title to the property.” Kinscherff v. United States, 586 F.2d 159, 160 (10th Cir.1978).

Here, the two non-governmental Plaintiffs have an interest in the use of Eagle Creek Road that is shared by the public as a whole. See id. (“Members of the public as such do not have “title” in public roads. To hold otherwise would signify some degree of ownership as an easement. It is apparent that a member of the public cannot assert such an ownership in a public road.”). The interest in the title to Eagle Creek Road, however, vests in the public generally or potentially, in this case, Plaintiff Shoshone County. See Long v. Area Manager, Bureau of Reclamation, 236 F.3d 910, 915 (8th Cir.2001) (“... the right of an individual to use a public road is not a right or interest in property for purposes of the Quiet Title Act. The proper plaintiff to challenge the condemnation of a public road is the governmental entity that owns the easement.”).

Therefore, even though both non-governmental Plaintiffs claim an interest (albeit not a real property interest) in the use of Eagle Creek Road, the United States has not waived its sovereign immunity in a way that permits these Plaintiffs to seek to vindicate such interests. Without the necessary property interest in Eagle Creek Road, Plaintiffs George E. Stephenson and the New Jersey Mining Company have no standing to bring a quiet title suit against the United States. Defendants’ Motion for Summary Judgment is granted in this respect.

B. The Quiet Title Act and the Statute of Limitations

The Quiet Title Act’s waiver of sovereign immunity is subject to a 12-year statute of limitations. Pursuant to 28 U.S.C. § 2409a(g):

Any civil action under this section ... shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.

28 U.S.C. § 2409a(g). If the statute of limitations has run on a waiver of sovereign immunity, the federal court lacks jurisdiction. See Block, 461 U.S. at 292, 103 S.Ct. 1811 (1983). Because Plaintiffs instituted this action on October 5, 2009, their attempt to quiet title is barred if they knew or should have kriown' of the United States’ adverse claim by October 5, 1997.

The statutory term “should have known” imparts a test of reasonableness. See Middle Fork Holding Co., Inc. v. United States, 2010 WL 107380, *3 (D.Idaho 2010); see also Fidelity Exploration and Production Co. v. United States, 506 F.3d 1182, 1186 (9th Cir.2007) (“Although a court ‘should not construe such a time-bar provision unduly restrictively,’ it must ‘be careful not to interpret it in a manner that would extend the waiver beyond that which Congress intended.’ ”) (quoting Block, 461 U.S. at 287, 103 S.Ct. 1811). To this end, this District Court has held that “an action accrues under the [Quiet Title Act] when the United States’ actions would have alerted a reasonable landowner that the government claimed an interest in the land.” Middle Fork, 2010 WL 107380 at *3 (citing Shultz v. Dept. of Army, 886 F.2d 1157, 1160 (9th Cir.1989)). The parties accept this general standard, but disagree as to whether, in the context of Defendants’ conduct in addressing periodic flooding and washouts along Eagle Creek Road in the late 1990’s, Plaintiffs knew or should have known of the United States’ adverse claim to Eagle Creek Road before October 5, 1997. See Defs.’ MSJ, pp. 17-23 (Docket No. 40); see also Pis.’ Resp. to Defs.’ MSJ and Reply, pp. 7-10- (Docket No. 49).

To decide this issue, the Court draws upon the underlying factual chronology, which contains the following pertinent details:

• In response to a series of floods that occurred throughout the Coeur d’Alene River basin from November 1995 through March 1996, the Idaho Panhandle National Forests made plans for twelve potential road rehabilitation projects, including Eagle Creek Road. Among other things, the Eagle Creek Road proposal provided for the obliteration and permanent closure of 3.85 miles of Eagle Creek Road. See Defs.’ MSJ, pp. 20-21 (Docket No. 40) (citing Defs.’ Ex. 182 at pp. JM 2494-2504).

• On February 12, 1997, notice of these “Flood Rehabilitation” projects was listed on a “Quarterly Schedule of Proposed Actions.” See Defs.’ MSJ, p. 21 (Docket No. 40) (citing Defs.’ Ex. 184 at JM 2725); see also Defs.’ Ex. 182 at JM 2497.

• On March 21, 1997, project “scoping” letters were sent to various agencies, adjacent landowners, and individuals who expressed an interest in the rehabilitation projects. See Defs.’ MSJ, p. 21 (Docket No. 40) (citing Defs.’ Ex. 182 at JM 2497). The letters “included an overview of conditions and key concerns, and a brief description of proposed flood rehabilitation activities.” Defs.’ Ex. 182 at JM 2497.

• On March 22, 1997, and March 25, 1997, news articles regarding the proposed rehabilitation projects, including Eagle Creek, were published in area newspapers. See Defs.’ MSJ, p. 21 (Docket No. 40) (citing Defs.’ Ex. 184 at JM 2728 & 2730); see also Defs.’ Ex. 182 at JM 2497.

• On April 21, 1997, the Forest Service released its Watershed Rehabilitation Environmental Assessment (“EA”) See Defs.’ MSJ, p. 21 (Docket No. 40) (citing Defs.’ Ex. 184 at JM 2674). The EA outlined a “No-Action” alternative which would have kept Eagle Creek Road open. More significantly, for purposes of this lawsuit, the EA described the preferred and “Proposed Action” alternative as calling for the obliteration of 3.85 miles of Eagle Creek Road. See Defs.’ Ex. 184 at JM 2681-2685; see also Pis.’ Resp. to Defs.’ MSJ and Reply, p. 8 (Docket No. 49); Second Brackebusch Decl. at ¶ 12 (Docket No. 51).

• On May 16, 1997, á local newspaper published an article — titled, “Forest Service Ponders Closure of Popular Road” — describing the Eagle Creek Road closure proposal. See Defs.’ MSJ, p. 21 (Docket No. 40) (citing Defs.’ Ex. 184 at JM 2537 (“The U.S. Forest Service is asking for public input qn its proposal to close the popular East Fork of Eagle Creek Road The environmental assessment was finished April 21 and the preferred option by the Forest Service interdisciplinary team is to remove the road and provide an alternative road .... ‘If public comment is such, this preferred option could change.....' ")).

• On May 29, 1997, the Forest Service issued a “Decision Notice” for all of the rehabilitation projects, except for Eagle Creek. See Defs.’ MSJ, p. 21 (Docket No. 40) (citing Defs.’ Ex. 181) (“The East Fork Eagle Creek proposal will, be addressed under separate decision documentation.”); see also Pis.’ Resp. to Defs.’ MSJ . and Reply, p. 8 (Docket No. 49); Second Brackebusch Decl. at ¶ 13 (Docket No. 51).

• On July 23, 1997, the Forest Service issued a Supplement to the EA, focusing only upon Eagle Creek. See Defs.’ MSJ, pp. 21-22 (Docket No. 40) (citing Exs. 183 at JM 2512-2513 & 184 at JM 2599). Along with the “No-Action” alternative, the Supplement to the EA identified two other alternatives, proposing to close the same segment of Eagle Creek Road. See id.; see also Pis.’ Resp. to Defs.’ MSJ and Reply, p. 8 (Docket No. 49); Second Brackebusch Decl. at ¶ 14 (Docket No. 51).

• On October 7, 1997, the Forest Service issued a “Decision Notice” for the Eagle Creek Restoration Project, closing approximately four miles of the then-existing road. See Defs.’ MSJ, p. 22 (Docket No. 40) (citing Defs.’ Ex. 178); see also Pis.’ Resp. to Defs.’ MSJ and Reply, pp. 8-9 (Docket No. 49); Second Brackebusch Decl. at ¶ 15 (Docket No. 51).

Based on such facts, Defendants argue that once the April 21, 1997 Watershed Rehabilitation Environmental Assessment was issued, “Plaintiffs knew or should have known of the Forest Service’s proposal to close portions of the Eagle Creek Road .... ” and, therefore, Plaintiffs’ claims are now time-barred. See Defs.’ MSJ, p. 22 (Docket No. 40). In response, Plaintiffs argue that not until the October 7, 1997 Decision Notice did any Quiet Title Act claim accrue because, until that point, Plaintiffs were never on notice that their interests in Eagle Creek Road were officially adverse to the United States’ interests. See Pis.’ Resp. to Defs.’ MSJ, pp. 8-10 (Docket No. 49). The Court agrees with Plaintiffs.

First, both the (1)- April 21, 1997 Environmental Assessment, and the (2) July 23, 1997 Supplement to the Environmental Assessment, referenced a “No-Action” alternative which, if adopted, would have maintained the status quo with respect to the East Fork of Eagle Creek and Eagle Creek Road. The Forest Service, pursuant to the National Environmental Policy Act (“NEPA”), was required to continue consideration of these alternatives until it made, and announced, its final decision, which did not occur until the October 7, 1997 Decision Notice. Before then, Plaintiffs’ interests were perhaps under a cloud, but any such threat remained inchoate. See Pis.’ Resp. to Defs.’ MSJ and Reply, pp. 9-10 (Docket No. 49) (“In the present case, the USFS did not issue a final decision until October 7, 1997. Therefore, the “no action” alternatives listed in the EA/SEA were still being considered by the agency, and Plaintiffs had no notice until that time.”). Plaintiffs’ interests in Eagle Creek Road were never formally limited or made practically ineffectual before October 7, 1997; accordingly, the Quiet Title Act’s 12-year limitations period was not triggered any earlier. See Middle Fork, 2010 WL 107380 at *3 (“Thus, when a plaintiff claims a non-possessory interest, an action accrues only when the government, adversely to the interests of plaintiff, denies or limits the use of the alleged easement.”) (citing Michel v. United States, 65 F.3d 130, 132 (9th Cir.1995)).

Second, and more fundamentally, Defendants’ arguments would implicitly allow Plaintiffs to institute this quiet title action before a final decision was made. Had Plaintiffs’ brought their claims before October 7, 1997’s Decision Notice, they likely would face a motion from the Forest Service to dismiss in light of the absence of any final decision (which came on October 7, 1997). This tension ultimately cuts against Defendants’ statute of limitations argument, when:

[a] contrary holding would lead to premature, and often unnecessary suits. If a government claim to title were sufficient to trigger the running of the limitations period on any claim affecting use of the property, a claimant of a right of access would be forced to bring suit within twelve years even though the government gave no indication that it contested the claimant’s right. The claimant would be compelled to sue to protect against the possibility, however remote, that the government might someday restrict the claimant’s access. The statute should not be read to create such an undesirable result.

Middle Fork, 2010 WL 107380 at *3.

Here, the United States absolutely contested Plaintiffs’ interest in Eagle Creek Road once it issued its October 7, 1997 Decision Notice closing a 4-mile section of Eagle Creek Road. Requiring Plaintiffs to assert its interests through a quiet title action before then strikes the Court as an awkward and inefficient mechanism for resolving such disputes. Only following the October 7, 1997 Decision Notice, did Plaintiffs absolutely know that their interests and the Government’s interests were not aligned.

Because Plaintiffs brought this action within 12 years of October 7, 1997, their claims are not barred by the statute of limitations. Defendants’ Motion for Summary Judgment is therefore denied in this respect.

C. Eagle Creek Road and R.S. 2477

R.S. 2477 provided for “right[s][-]of[-]way for the construction of highways over public lands, not reserved for public uses.” See supra. Controversies like the one presented in this action often arise because the establishment of these rights-of-way were completely void of any administrative formalities — no entry, no applications, no licenses, no patents, no deeds, no formal acts of acceptance were needed to establish an R.S. 2477 right-of way. See supra; see also Southern Utah Wilderness Alliance, 425 F.3d at 741 & 754 (“R.S. 2477 was a standing offer of a free right[-]of[-]way over the public domain,” acceptance of which occurred “without formal action by public authorities .... All that is required ... are acts on the part of the grantee sufficient to manifest an intent to accept the congressional offer.”).

“To begin with, ‘federal law governs the interpretation of R.S. 2477,’ but ‘in determining what is required for acceptance of a right of way under the statute, federal law ‘borrows’ from long-established principles of state law, to the extent that state law provides convenient and appropriate principles for effectuating congressional intent.’ ” San Juan Cnty., Utah v. United States, 2011 WL 2144762, *5 (D.Utah 2011) (quoting Southern Utah Wilderness Alliance, 425 F.3d at 768). In Southern Utah Wilderness Alliance and San Juan Cnty., the borrowed state law was “that of the State of Utah, supplemented where appropriate by precedent from other states with similar principles of law.” Id. Here, the state law to be “borrowed” is that of the State of Idaho.

The burden of proof to establish the existence of ah R.S. 2477 right-of-way falls squarely upon the claimants who seek to enforce rights-of-way against the United States. See Cnty. of Inyo, 873 F.Supp.2d at 1239-40; see also San Juan Cnty., 2011 WL 2144762 at *5 (citing Southern Utah Wilderness Alliance, 425 F.3d at 768). Moreover, under federal law, “land grants are construed favorably to the Government, that nothing passes except what is conveyed in clear language, and that if there are doubts they are resolved for the Government, not against it.” Id. “[I]t has long been the law that land ‘grants must be construed favorably to the government and that nothing passes but what is conveyed in clear and explicit language-inferences being resolved not against but for the government.’ ” The Wilderness Society v. Kane Cnty., 581 F.3d 1198, 1220 (10th Cir.2009) (reversed on other grounds en banc) (quoting Caldwell v. United States, 250 U.S. 14, 20, 39 S.Ct. 397, 63 L.Ed. 816 (1919)); accord, Adams, 3 F.3d at 1258 (9th Cir.1993).

■ Hence, it is Plaintiffs’ burden to prove that Eagle Creek Road was a “highway” under Idaho law prior to the land subsuming Eagle Creek Road exiting the public domain on November 6, 1906. See Pis.’ MSJ, p. 10 (Docket No. 32, Att. 1) (“Therefore, if a public right-of-way was established under state law before the repeal of R.S. 2477, and before reservation from the public domain, then it remains a valid right-of-way under the federal government’s R.S. 2477 grant.”).

D. Creating Roads Under Idaho Law

Under Idaho law, a public right-of-way is established by either (1) use in compliance with road creation statutes, or (2) a positive act of acceptance by the local government. See .Galli v. Idaho Cnty., 146 Idaho 155, 191 P.3d 233, 237 (2008) (citing Farrell v. Bd. of Comm’nr of Lemhi Cnty., 138 Idaho 378, 64 P.3d 304, 310 (2002)). Plaintiffs argue that Eagle Creek Road constitutes a public right-of-way under Idaho law by either statutory mechanism.

As to the first method, section 850 of the [Territorial] Revised Statutes of Í887 defines “highways” as “roads, streets or alleys, and bridges, laid out or erected by the public, or if laid out or erected by others, dedicated or abandoned to the public.” Galli, 191 P.3d at 238 (quoting R.S. § 850 (1887)). Section 851 declares that all highways created by the Board of Commissioners and that “all roads used as such for a period of five years, are highways.” Id. (reading sections 850 and 851 of Revised Statutes of 1887 together to mean that “[a] highway may not be created unless it is a road, street, alley or bridge that is erected or laid out by the public, and it is used for a period of five years.”). Importantly, the use “must be regular public use and not casual or desultory.” Id. at 237 (citing Kirk v. Schultz, 63 Idaho 278, 119 P.2d 266, 266 (1941)). Further, although direct evidence is not required to establish the fact of such “regular public use,” “there must be sufficient circumstantial evidence to support any inferences.” Gaily 191 P.3d at 238.

As to the second method for establishing a public right-of-way under Idaho law, “there must be some positive act or acts on the part of the proper public authorities clearly manifesting an intention to accept such grant with respect to the particular highway in question.” Kirk, 119 P.2d at 268. In Kirk, the Idaho Supreme Court held that such acceptance could include (1) a designation as a public highway, (2) a recording by order of the Board of County Commissioners, or (3) maintenance by public expenditure. See id.

Therefore, to establish an R.S. 2477 right-of-way in Eagle Creek Road, Plaintiffs must show either that (1) Eagle Creek Road represented a highway under Idaho’s applicable road creation statute before the surrounding land’s reservation in 1906, or (2) the appropriate public authority took an affirmative act recognizing Eagle Creek Road as a highway under Idaho law. In their third and fourth claims for relief, Plaintiffs allege that Eagle Creek Road represents an R.S. 2477 right-of-way under both approaches.

1. Plaintiffs’ Third Claim for Relief: ■ Eagle Creek Road and Idaho’s Road Creation Statutes

To qualify as a highway under Idaho’s road creation statutes during the relevant period of time, Eagle Creek Road must have been designated as -such by the Shoshone County Board of Commissioners and regularly used by the public- for five years. See Galli, 191 P.3d at 238. In their third claim for relief, Plaintiffs argue that Eagle Creek Road (1) was used as a public road for at least five years before 1906, and (2) was declared a county road and, therefore, a highway, by the Shoshone County Board of Commissioners. See Pls.’ MSJ, pp. 12-15 (Docket No. 32, Att. 1).

a. Eagle Creek. Road was Not Regularly Used by the Public for Five Years Between 188k and 1906

The' parties agree that Eagle Creek Road first came into existence in 1884 as miners began converging on what became Eagle City in response to the area’s gold rush. They disagree as to whether Eagle Creek Road was regularly used by the public for five years between 1884 and 1906.

Arguing this to be the case, Plaintiffs point out that (1) government mineral surveys between 1887 and 1888 refer to Eagle Creek Road (or some portion of the same) as a “good wagon road” or a “good trail”; (2) the Shoshone County Board of Commissioners designated Road Districts within Shoshone County to manage county roads, creating a Road District that included the area of Eagle Creek Road in 1885 (later modified and expanded in 1889 and 1895); and (3) in April 1906 (approximately seven months before reservation) a petition was made to the Shoshone County Board of Commissioners requesting the appropriation of funds to improve the “wagon road” then existing from Eagle City to the confluence of the East and West Forks of Eagle Creek to Smith & Dunlap’s placer camp — implicitly recognizing the existence of Eagle Creek Road as a county road that residents wanted to be improved. See Pis.’ MSJ, pp. 11-12 (Docket No. 32, Att. 1). In the Court’s mind, these cited instances’fall short of establishing the requisite five years of regular public use, particularly when examining the backdrop of Eagle City’s abbreviated life span.

i. Bust on the Heels of Boom— Eagle City’s Short Life

The beginning point in assessing the evidence bn this issue is the same beginning point as the Eagle Creek gold rush, and the immediate flood of activity in the region,.followed by its equally-as-rapid demise. Many descriptions of the rise and fall of Eagle; City, drawn from local and national newspapers and periodicals, have been placed in the record. A contemporaneous account from The Century Magazine, a well-known and widely, circulated magazine of its day, is the most compelling. In' his lengthy and often prosaic article published in the October 1884 issue, Eugene Y. Smalley characterized the Eagle Creek gold rush- thusly:

Of all the stampedes in old times or in recent years, the great Coeur d’Alene stampede of the winter and spring of 1884 was probably the most remarkable. The country it invaded was less known than any other part of the Rocky Mountain chain. No roads traversed it; there was not even a bridle trail. To make matters worse, the entire region was covered with a forest growth of cedar, pine, and fir, so dense as to resemble a Hindostán jungle. “Begorra, ye’ll find the trees growin’ as thick as a bunch of matches,” said an old Irish miner, whom I encountered on my way to the region, and he did not greatly exaggerate. To make matters still worse, the snovrfalls are phenomenal, and the stampede began in the dead of winter, when the snow was from twelve to twenty feet deep in the mountain passes. Yet, in spite of these obstacles, over five thousand men made their way into the heart of the Coeur d’Alene Mountains during the months of January, February, and March [of 1884].

Eugene V. Smalley, “The Coeur d’Alene Stampede.” The Century Magazine XXVIII (October 1884), p. 841, attached as Defs.’ Ex. 12.

Smalley’s account was mirrored by other descriptions found in the early mining camp newspapers (often in the breathless terms characteristic of such publications) and even in the New York Times, which, in its June 1, 1884 edition, described the anxious waiting in the winter of 1883-1884:

In anticipation of a great rush and prosperous times, Eagle City had been early stocked with supplies of all kinds. It had cost 25 cents a pound to carry the freight in, for everything had to be pulled on “toboggans” over the mountains, and high prices alone could make a profit for the shippers. The traveling in the Winter season was dangerous on account of the frequent and heavy falls of snow. Not only Eagle City but the whole country had been stocked in .the same way, and the merchants sat about waiting for the crowds who were to swarm in upon them, and buy everything at very high figures. For a week or two at the beginning of the rush sales were made in plenty, and tremendous profits were the result, but inside of a month everything changed. Business had come to a complete standstill, and the towns, and section throughout, became dead .... When the people began to come in, mining was of course impossible because of the snow. To locate a claim was in itself a hard matter, to say nothing of taking out gold. I refer to placer claims only. To hunt for quartz leads was even more impossible, for traveling on snowshoes was difficult and the leads were so covered up that though miles were traveled a hundredth part of the country could not be seen. Those who had taken claims were living on them in little huts. They were doing nothing, but sitting about, and were buying just enough to keep them alive ... all were waiting for something to start the wheel rolling ... There was not even a trail to Eagle City at the time these statements were made, though a good one is now completed into Eagle City and several hundred pack animals are going over it day by day.

Defs.’ Ex. 11.

The New York Times article does not identify the trail bringing “several hundred pack animals” a day into Eagle City. An inference could be drawn that it was the Belknap Trail, but the inference would be tempered by the fact that the Belknap Trail was only one of several routes that had sprung up to channel goods and miners across the mountains into Eagle City. In the July 8, 1884 issue of the brand new Idaho Sun newspaper published in Murray, large display ads for two of the competing trails appeared side-by-side. See Pis.’ Ex. 11. The Belknap Trail advertisement promised the reader that it was “open to travel,” and was the “shortest road to the mines ... [with the] distance from Belknap to Eagle City 32 miles.” Id. It was a “Good Road for Horses and Footmen” and could be covered in “10 hours And Less on Horseback.” Id. Not so fast, its competitor’s ad seemed to say, in trumpeting the qualities of the “Trout Creek Trail” as the “Quickest, Cheapest and Fastest Freight Line from the Northern Pacific Railroad to Eagle, Murray and all points in the Coeur d’Alene Mountains.” Id. Yet another of the competing trails, the “Thompson Falls” route, was described three months earlier in The Coeur d’Alene Nugget (another of the nascent mining camp newspapers, but published in Eagle City) as having “a forwarding line established,” which “will no doubt make [it] the most feasible route to the mines.” See Pis.’ Ex. 9v

Much hope and anticipation was in the air in Eagle City in the Winter and Spring of 1883-1884. But when the snows melted away, far too little was found to satisfy such hopes and anticipation. Smalley chronicled the scene:

The great rush did not occur, however, until February, when the toboggan period began. A toboggan is the long, low sled used in Canada, and until the snows melted in April last it was the only mode of transportation to the mines. The toboggan men, wearing snow-shoes, and hauling from one to two hundred pounds on their rude sleds, could make from ten to twenty miles a day over the mountains, following the “blazing” on. the trees that indicated, the trial... .Twenty-five cents a pound was the. price for hauling freight from the railroad forty miles to the camp established in the fall at the forks of Eagle Creek, and called Eagle City.

* * *

When the snow went off the stampeders got to work. A few paying placers were opened, but in most cases the bed-rock was found to be from twelve to twenty feet below the surface, and covered with deposits of gravel and bowlders [sic]. It took an enormous amount of labor to get down to it. The “pay streak,” in most diggings, is found just on top of the first stratum of rock below the soil, the particles of gold having, in the course of ages, worked down through the earth until stopped by the rock. In the Coeur d’Alene region the miners had to work through an enormous amount of surface deposit.

“The bloom was off the boom,” as they say in Dakota, when I went to the Coeur d’Alenes in July [1884] last. Numbers of people had learned that locating a quartz claim on a mountainside, or sitting down in the cedar woods of a gulch and imagining how much gold there may be under twenty feet of gravel, is not a short cut to wealth. It costs a great deal of money to open a placer, and a great deal more to get gold out of quartz, and most of the stampeders had only enough to keep them in provisions for a few weeks., They hoped to sell their claims, but no one came with capital to buy. ■ Very few were able to dig ditches, build sluices, and begin cleaning the bed-rock.,- An exodus -from the mines'began in June,- and continued in a straggling way all summer. “It was not a poor man’s country,” said the returning adventurers, as they footed it over the mountains to the railroad. “What could a fellow do with only a shovel, a pick, and a plug of tobacco, when it took a thousand dollars’ worth of labor to get down to the pay dirt?” All the trails were filled with processions of melancholy men, sweating and swearing under their loads -of dirty blankets. Among them were merchants who had sold out their stocks at a loss, and gamblers looking for more promising fields. The-camps were by no means deserted, however. Only the drift-wood went out on the. ebb of the tide.

Five miles below Murray is Eagle, where the stampeders harbored last winter. Its rise and fall covered a period of only six months. Lots, with log buildings, which sold last February for one thousand five hundred dollars, can now be bought for fifty dollars. Yet the place occupies the only natural town site in the whole region, having an open flat of a hundred acres, where one can see a horizon of mountain-tops up at the head of Eagle Creek, and where the vision is not limited to moss-hung trees and a hand-breadth of sky. When the quartz leads on Eagle and Pritchard creeks are worked, Eagle will have a new growth. Just now its disconsolate inhabitants are eager to dispose of their huts, tents, and town lots, and their goods and whisky, at any price, and are only staying because they cannot get away....

Defs.’ Ex. 12.

In a different, but still closely contemporaneous, account, James L. Onderdonk, the Controller of the Idaho Territory, described Eagle City’s rise and fall in an 1885 book about the Territory, containing “Facts and Statistics” extolling the Territory’s “Mining, Farming, Stock-Raising, Lumbering, and Other Resources and Industries” for the “Home-Seeker, Capitalist, Prospector, and Traveler.” Onderdonk wrote:

Eagle City is situated near the junction of Eagle and Pritchard creeks, and between the two streams. The site is a beautiful one for a town, the two principal streets, Eagle and Pritchard, forming almost a complete angle at the foot of the mountain — Eagle street stretching up the valley of Eagle Creek to the north, and Pritchard street extending up the valley of Pritchard creek to the east. In the early part of the year 1884, Eagle City gave promise of becoming' the metropolis of the Coeur d’Alene. Town lots were laid out and taken up. for fully three fourths of a mile along each valley, and were rated very high. Extensive improvements were rapidly made, expensive business houses were erected, and there was a general rush of business of all kinds common to a stampede mining camp. But as the richest mines being opened were more contiguous to Murray,' four miles east of Eagle, up Pritchard Creek, business began early in the season to center in that rival burg, which soon began to lead, and before midsummer had largely absorbed the business interests and trade of the Coeur d’Alene, so that Eagle City is now almost deserted.

Defs.’ Ex. 19.

For this Court, the most significant import of these reports of the gold stampede of 1883-1884 into the Coeur d’Alenes is found in what came immediately after the frenzy — la, that the great stampede to Eagle Creek collapsed upon itself like the banks of snow dissolving into the spring freshet. If the historical record had described only the prodigious amounts of supplies that were brought into Eagle City in the Winter of 1883-1884, and the plentitude of fortune seekers waiting for the temperatures to rise and the ground to be revealed, inferences could be reasonably drawn that would favor the Plaintiffs’ position. The Court could reasonably assume that the Belknap Trail inevitably must have become a regular thoroughfare for miners, and for the opportunistic merchant and saloon-keeper profiteers who followed them. In such a setting, inferences also reasonably could be drawn that the traffic associated with a busy placer and lode mining district would continue for at least the five years of regular use required by the Idaho Territorial statutes that prescribed the creation of public highways.

But the historical record does not stop in the Winter of 1883-1884. It continues through that spring, and into the summer, when the promise of the Eagle Creek gold rush vanished in the face of hard realities. Competition was fierce, in limited space, for claims hemmed-in by creek-beds and steep hillsides. Those claims that were located were hardly the new El Dorado promoted by the Northern Pacific Railroad. Placer claims were disappointingly difficult to prospect and work. Easier arid richer claims were found further up Prichard Creek towards Murray, and Murray quickly replaced Eagle City as the center of the Coeur d’Alene mining universe. Even lode claims that were located after the snow melted in the Spring and Summer of 1884 were not surveyed until some years later.

When the Belknap Trail, on whose skeleton the Plaintiffs seek to place Eagle Creek Road for purposes of meeting R.S. 2477 requirements, was first envisioned, it was intended to be a thoroughfare for miners and others through and across the mountainous divide that separated the mining districts of the Coeur d’AIenes from the Northern Pacific Railroad, the Montana Territory, and points westward and eastward alike. Promoters hoped to create the preferred and most direct route into the center of the new mining excitement, beginning at Belknap and ending in Eagle City, by the least crooked line that could be drawn across the mountains and down the Eagle Creek drainage.

If the Belknap Trail had, in fact, bloomed in that manner, Plaintiffs’ case would be much ■ stronger. But the ambition for the Belknap Trail was never realized. The winter route was more of a toboggan run over deep snow than a trail impressed into the landscape. The wagon-width road across the full length of the Belknap trail, éven though perceived, was never achieved. Even the advertisement that appeared in the Summer of 1884 announcing the “opening” of the trail could boast at best that it was a “Good Road” for “Horses and Footmen.” See Pis.’ Ex. 11. It had immediate competition from the neighboring Trout Creek Trail for the everidissipating' number of miners, and was fighting to gain a toehold even as the mining prospects further to the east near Murray brought the actual mining clamor that had just barely begun in Eagle Creek to the mining camp of Murray instead. Even the businesspeople promoting the Belknap Trail abandoned Eagle Creek and Eagle City, choosing instead to create the Most “direct route to Murray” in a “new” Belknap Trail. There was. no reason to send freight over the trail to Eagle City, and no reason to finish any work to finish or improve the trail, much less create a wagon road — at least for their purposes.