FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS December 13, 2019 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
C. MARK CUPPS; MARK B. KOENIG; CHERYL L. KOENIG; DALE M. CARLSON; PEGGY CARLSON; JOHN E. MCINROY; ANN W. PECK; PHILLIP KOSKI; ANDREA KOSKI; ESTHER SANDOVAL; KAY YUEN HING REVOCABLE TRUST; FLOYD A. BARBOUR; WILLIAM G. CUTLER; BRUCE R. SMITH; DEBRA J. SMITH; JOSEPH RUPINKSKI, JR.; LARRY WEYHRICH; KATHY WEYHRICH; LARAMIE BOAT CLUB, INC.; BARBARA J. BARBOUR,
Plaintiffs-Appellants, v. No. 18-8024 (D.C. No. 2:16-CV-00086-SWS) PIONEER CANAL-LAKE HATTIE (D. Wyo.) IRRIGATION DISTRICT,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HOLMES, McKAY, and MORITZ, Circuit Judges.
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Plaintiffs-Appellants (“Landowners”), who own land adjacent to
Wyoming’s Lake Hattie Reservoir, seek review of findings of fact and
conclusions of law in favor of Defendant-Appellee Pioneer Canal-Lake Hattie
Irrigation District (“Irrigation District”), which owns and operates the reservoir.
According to the Landowners, the Irrigation District allowed reservoir
water to encroach on their land, impermissibly exceeding the boundaries of a
right-of-way approved under the Act of March 3, 1891, 26 Stat. 1095, 1101–02
(1891) (“Act”). 1 Following a bench trial, however, the district court ruled against
the Landowners, finding that the Irrigation District had not exceeded its right-of-
way.
For reasons set forth below, we agree with the Landowners that the district
court’s reasoning was erroneous and conclude that the judgment cannot otherwise
be upheld. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and
remand for additional proceedings consistent with this opinion.
I
1 The Act was repealed in 1976, but the law repealing the Act contained a savings clause providing that existing rights-of-way remain effective. See Federal Land Policy and Management Act of 1976, 90 Stat. 2743, 2786 (Oct. 21, 1976) (stating that nothing in the new law “shall be construed as terminating any valid . . . right-of-way[] or other land use right or authorization existing on the date of approval of this [a]ct”); id. at 2781 (“Nothing in this title shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted.”).
2 A
As relevant here, the Act permitted canal and ditch companies to obtain
rights-of-way through certain public lands “to the extent of the ground occupied
by the water of [a] reservoir and of [a] canal and its laterals, and fifty feet on each
side of the marginal limits thereof.” 26 Stat. at 1101. The Act continued:
Provided, That no such right of way shall be so located as to interfere with the proper occupation by the Government of any such reservation, and all maps of location shall be subject to the approval of the Department of the Government having jurisdiction of such reservation, and the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories.
Id. at 1101–02 (second emphasis added).
To “secure the benefits of” the Act, a company had to “file with the register
of the land office for the district where such land is located a map of its canal or
ditch and reservoir; and upon the approval thereof by the Secretary of the Interior
[(“Secretary”)] the same shall be noted upon the plats in said office, and
thereafter all such lands over which such rights of way shall pass shall be
disposed of subject to such right of way.” Id. at 1102. The Act applied to “all
canals, ditches, or reservoirs, heretofore or hereafter constructed, . . . on the filing
of the certificates and maps herein provided for.” Id.
In 1908, the Department of the Interior (“Department”) adopted regulations
for obtaining a right-of-way under the Act. See Regulations for Rights of Way
3 over Public Lands and Reservations, 36 Pub. Lands Dec. 567 (Dep’t of Interior
June 6, 1908). They required a company seeking to obtain the benefits of the Act
to file field notes of a survey and a map, among other things, with the register of
the land district in which the reservoir would be located. Id., ¶¶ 8, 8(j), 10, 11.
The field notes and map, the regulations said, “should” create a “record . . . so
complete that from it the surveys could be accurately retraced by a competent
surveyor with proper instruments.” Id., ¶ 10. The “line of survey” set forth in
those documents, the regulations added, “should be . . . , as exactly as possible,
the water line of the proposed reservoir.” Id. The map had to be “strictly
conformable to the field notes of the survey.” Id., ¶ 11. Once the Secretary
approved the map, the “lines of [the reservoir], as laid down on the map,” would
be marked on township plats by local officials. Id., ¶ 22. Following the
construction of the reservoir, “[n]o new map” was required, “unless there [were]
deviations from the right of way previously approved, either before or after
construction,” in which case “new maps and field notes in full” had to be filed.
Id., ¶ 23. Any new map had to “show clearly” or describe “the portions
amended[,]” and the location had to be “described in the forms as the amended
survey and the amended definite location.” Id. (emphases added).
B
4 In the early 1900s, engineer Z.E. Sevison sought permission from the State
of Wyoming to store water at the reservoir site. According to one of his
applications, which the State ultimately approved, the dam at the site would rise
eight feet above the water line when the reservoir was full. A map accompanying
that application showed a high-water line at an elevation of 7,290 feet. 2
In 1909, the Irrigation District’s predecessor-in-interest submitted to the
Department a map of the boundaries of a proposed Lake Hattie Reservoir for
approval of a right-of-way under the Act. The project’s chief engineer, W.H.
Rosecrans, certified on the face of the map that the surveys of the reservoir and
its canals “represent level lines, which are the proposed water lines of the
reservoirs and the proposed grade lines of the canals, and that such surveys are
accurately represented on the accompanying map and by the accompanying field
notes.” See Aplts.’ App., Vol. I, at 119 (1909 Map). The map further certified
that the surveys were “correctly represented on this map and by the accompanying
field notes” as the “definite location” of the reservoir and canals. See id. Field
2 As the district court noted, there is evidence in the record that this figure “is equivalent to” the 7,278 foot high-water elevation figure found in later documents and used more generally in this case and that “the discrepancy is likely due to [the use of] different elevation datum.” Aplts.’ App., Vol. I, at 83 n.3 (Findings of Fact & Conclusions of Law, filed Mar. 20, 2018); cf. Miccosukee Tribe of Indians of Fla. v. United States, 697 F. Supp. 2d 1324, 1341 n.25 (S.D. Fla. 2010) (observing that the “vertical control datum” established in 1929 was superseded by a new one in 1991 to account for, among other things, “crustal motion, and subsidence caused by withdrawal of underground fluid”).
5 notes accompanying the map stated that, “[i]n running the line of the reservoir[,]
the distances were determined by stadia on a self-reading rod divided into feet
and tenths, which served at the same time as a level rod to determine the true
water line.” Id. at 105 (Field Notes). In 1911, the Department approved the map
and the related application for a right-of-way under the Act.
A 1912 engineering report on the Lake Hattie project stated that the
reservoir’s high-water mark was 7,278 feet and that the dam rose to 7,285 feet.
The district court found that those figures “have remained the same over time.”
Id. at 86 (Findings of Fact & Conclusions of Law, filed Mar. 20, 2018).
In 1923, the Irrigation District’s predecessor-in-interest submitted to the
Department two affidavits as proof of construction. The first, from an official of
the predecessor-in-interest, stated that the reservoir had been constructed in
conformity with the approved map and field notes and in full compliance with the
Act. The second affidavit was from a civil engineer who had surveyed the
reservoir and supervised its construction. The engineer stated:
[T]hat the traverse of the shore line of [the reservoir] when filled to full capacity level is as given in the Field Notes accompanying [the application] . . . ; and that [the reservoir] as constructed conforms to the map and accompanying field notes . . . which were approved by the First Assistant Secretary of the Interior [in] 1911.
Id. at 128–29 (Bishop Aff., dated Nov. 7, 1923). Following the submission of
those affidavits and other documents, the Department concluded that, with one
6 exception not now relevant, the reservoir had been “constructed and completed
exactly in conformity with the specifications” and, thus, that “the easement [was]
earned.” Id. at 133–34 (Dep’t of Interior Letter, dated Nov. 27, 1923).
In 1938, Congress passed the Small Tract Act, which authorized the
Secretary to sell and lease small tracts of “vacant, unreserved, surveyed public
land” for use as, inter alia, a home, cabin, or business site. See Act to Provide
for the Purchase of Public Lands for Home and Other Sites, 52 Stat. 609 (1938).
In 1949 and 1950, in apparent preparation for leasing land near the reservoir
under the Small Tract Act, the Bureau of Land Management (“BLM”) performed a
re-survey of the reservoir and surrounding area.
In preparation for the re-survey, the BLM’s Regional Chief of Engineering
advised a local surveyor to “secure a copy of the traverse of the highwater line of
Lake Hattie” and “copies of the field notes showing the bearings and distances
along this right-of-way.” Aplts.’ App., Vol. I, at 136 (Bandy Letter, dated Sept.
28, 1949). The surveyor responded that he had located the 1909 map, which
“seem[ed] to be the only relevant map . . . fixing the definite limit on the right of
way granted for the reservoir.” Id. at 137 (Naret Letter, dated Sept. 30, 1949).
The surveyor further opined, however, that the map was of “doubtful value”
because it omitted “numerous courses and distances describing the traverse of the
7 reservoir.” Id. The surveyor also stated that he had not located the field notes,
which he “consider[ed] essential.” Id.
The BLM issued “Special Instructions” for performing the re-survey and
ultimately dividing the land into tracts. The Special Instructions provided, inter
alia, that surveyors should survey the boundaries of the reservoir right-of-way as
described in the 1909 map and field notes. Surveyors were also instructed that a
“boundary line” for tracts facing the reservoir should be kept at “approximately
ten feet vertical height above the present water level, and should also be kept a
minimum of forty feet from the right-of-way boundary.” Id. at 140 (BLM Special
Instructions, dated Oct. 6, 1949). This was intended to “leave a passage way at
least forty feet in width between the right-of-way boundary and the lots, and to
keep the lots above the high water elevation of the reservoir.” Id. 3
According to field notes from the re-survey, surveyors used the 1909 map
as a reference point and may have located old surveyor’s stakes remaining from
3 The Irrigation District suggests that some of the re-survey was performed either before the Special Instructions were issued or under a different set of Special Instructions in part because the reservoir plat from the re-survey indicates that it was completed under Special Instructions, “dated February . . . 1950.” See Aplts.’ App., Vol. I, at 157 (Reservoir Plat). The Landowners respond that any “incorrect date of the special instructions” in the re-survey work may be “a typographical error.” Aplts.’ Reply Br. at 19. Regardless, field notes from the re-survey discuss the process actually followed, and, as the Landowners observe, it is not significant to the issues before us “whether the surveyor was following instructions or [acting] of his own accord.” Id. at 20.
8 the original survey. The plat ultimately resulting from the re-survey stated that it
“represent[ed] a retracement and reestablishment of portions of the section
boundaries and the high-water line of the reservoir, designed to restore the
corners in their original locations, and the subdivision of a portion of the
section.” Id. at 157 (Reservoir Plat). There is testimony, however, that at the
time of the re-survey portions of the “Rosecrans line” on the 1909 map were
below the reservoir’s water level and that the re-survey did not establish the
reservoir’s high-water line. Id. at 362, 455 (Trial Tr., dated Jan. 25, 2018); see
also id. at 363 (testimony that, “[in] 1949, the level lines . . . as compared to
[those in the 1909 map] were no longer at the same elevations”); id. at 380
(testimony that the “retracement” of “the [1909] line in 1949” was “independent
of elevation”); Aplee.’s App., Vol. VI, at 1437 (Written Direct Test. of David R.
Coffey) (“The 1949-50 BLM survey does not refer to the high-water line or the
elevation of the spillway. Nor do the 1949-50 survey/survey field notes specify
the elevation of the high water line. Nor does the 1949-50 survey attempt, in any
way, to document the elevation of its retracement of the 1909 Rosecrans
survey.”).
In 1951, the Department issued a classification order under the Small Tract
Act, declaring some land, much of which adjoined the reservoir, available for
lease for cabins. Wyo. Classification Order No. 10, 16 Fed. Reg. 9288 (Sept. 13,
9 1951). The order subdivided the land into fifty tracts identified during the BLM
re-survey. Id. The order also required lessees to make improvements to the land
“appropriate for the use for which the lease is issued.” Id. at 9289. Federal
regulations later provided that land leased under the Small Tract Act could
sometimes be purchased, but only if the lessee had made the contemplated
improvements. See 43 C.F.R. §§ 257.3(b), 257.13(a) (1954).
Between 1959 and 1963, the United States granted ownership patents to the
land at issue in this case to the Landowners’ predecessors-in-interest. The patents
were “subject to any vested and accrued water rights . . . and rights to ditches and
reservoirs used in connection with such water rights.” Aplts.’ App., Vol. II, at
194–206 (Land Patents). None of the patents specifically referenced the Lake
Hattie Reservoir or any right-of-way under the Act. Several of the Landowners or
their predecessors-in-interest purchased title insurance policies for their land; the
policies, however, specifically excluded coverage for loss or damage resulting
from “instruments of record” relating to the Lake Hattie Reservoir. See Aplee.’s
App., Vol. VI, at 1611 (Insurance Policy, dated July 7, 1999).
In 2016, during the course of this litigation, a surveyor retained by the
Landowners performed a bathymetric 4 survey of the reservoir “to determine the
4 See generally Bathymetric, WEBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY (2002) (defining the term, inter alia, as “relating to the measurement (continued...)
10 current elevation of the points indicated in the Rosecrans survey as it was retraced
by the BLM.” Aplts.’ App., Vol. II, at 283 (Written Direct Test. of Jeffrey B.
Jones, filed Jan. 10, 2018). The survey showed “twenty-four coincidental
locations with elevations that are noted in the 1949 BLM Survey.” Id. All of the
locations were underwater at the time of the survey. A quarter of the locations
were within one foot of the reservoir’s water line as indicated on the 1909 map
(i.e., an elevation of 7,258 feet), which the surveyor deemed “statistically
significant.” Id. The surveyor noted that these locations were predominately
found in an area more sheltered from wind than other locations. The surveyor
also observed that there were “several points” that had significantly different
elevations than 7,258 feet, and that wind and water erosion and similar forces
might have “significantly alter[ed] the landscape” in the intervening century. Id.
at 283–84.
C
The Landowners filed this action in district court seeking to quiet title to
their land, eject the Irrigation District from it, and obtain damages for land
unlawfully taken. They claimed that, since 2015, the Irrigation District had been
storing water on their land “outside the limits” of its right-of-way under the Act
4 (...continued) of depths of water in oceans, seas, or lakes”).
11 and that it planned to continue to do so. Aplts.’ App., Vol. I, at 37 (Compl., filed
Apr. 28, 2016); see also Aplee.’s App., Vol. I, at 277–92 (First Am. Compl., filed
Aug. 9, 2016) (raising the same claims). The Irrigation District answered and
filed a counterclaim, principally for a declaratory judgment and to quiet title in its
own favor.
The Landowners moved for summary judgment, arguing that the Irrigation
District’s right-of-way is defined solely by the 1909 map and that the right-of-
way’s boundaries on that map clearly did not overlap any of their properties. The
Irrigation District opposed, arguing, inter alia, that its right-of-way is defined by
the ground occupied by the water of its reservoir. In denying the Landowners’
motion, the district court ruled that “the surveyed line shown on the 1909 map
ultimately approved by the Department of the Interior is the ‘marginal limits’ of
the ground occupied by the water of Lake Hattie Reservoir for purposes of
determining the extent of [the] right-of-way.” Aplts.’ App., Vol. I, at 64 (Order
Den. Pls.’ Mot. for Summ. J., filed May 22, 2017). The district court concluded,
however, that its ruling did not “end the matter” because there were “genuine
issues of material fact as to where the 1909 line of survey . . . lie[s] in relation to
the [Landowners’] properties.” Id. at 64, 68.
The Landowners filed a second motion for summary judgment on similar
grounds. The Irrigation District again opposed—and sought, in the same filing,
12 summary judgment in its own favor—reiterating its argument that its right-of-way
is defined by the extent of its reservoir. It argued in part that the Landowners’
theory “def[ied] logic,” ignored the impact of erosion and similar forces, and
would result in a right-of-way varying dramatically in elevation as the land shifts
over time, whereas the water in its reservoir can exist “only [at] one elevation” at
any given time because “[w]ater seeks its own level.” Aplee.’s App., Vol. V, at
1302 (Opp’n to Pls.’ Second Mot. for Summ. J., filed Aug. 7, 2017). The district
court denied both motions on the ground that “genuine issues of material fact
[still] exist[ed] as to where the 1909 line of survey . . . lies in relation to the
[Landowners’] properties.” Aplts.’ App., Vol. I, at 77–78 (Order Den. Mots. for
Summ. J., filed Oct. 5, 2017). The court opined that “the problem stems primarily
from [the Landowners’] reliance on the 1950 BLM survey as an exact retracement
of the 1909 survey line,” even though “the field notes from the 1950 BLM survey
create doubt as to its accuracy in actually retracing the 1909 line.” Id. at 78.
After a bench trial, the district court issued findings of fact and conclusions
of law, generally in favor of the Irrigation District. The district court discussed
much of the background information described above and found that: (1) Mr.
Rosecrans’s reference to “level lines” showed that he had surveyed the reservoir
at “a certain elevation level,” id. at 85; (2) the field notes from the BLM
re-survey did not indicate that it made any effort to determine the “actual
13 ‘right-of-way boundary’ or the ‘high water elevation’ of the reservoir,” id. at 90;
(3) erosion had likely altered the features of the reservoir since its construction,
and the 1909 map’s “level line” was no longer level by the time the BLM
attempted to retrace it, id.; (4) the “supposed boundary line,” as retraced by both
the BLM and the Landowners’ expert, “varie[d] dramatically” in elevation, id. at
91; (5) Mr. Rosecrans intended his survey line to be level at some particular
elevation, “as it must necessarily be in defining the scope of an easement for the
storage of water,” but the “line of the reservoir easement will necessarily move
over time” due to erosion and similar forces, id.; (6) the only way to manage
reservoir water is to control its elevation, as “[w]ater seeks its own level,” id.; (7)
the opinion of the Landowners’ expert suggesting that the “water line . . .
depicted on the 1909 Rosecrans survey is [at] 7,258 feet” is unreliable, as three-
quarters of the survey points measured were not within one foot of that elevation
and the expert did not adequately account for the effects of wind and wave action,
id. at 92; (8) there was contemporaneous evidence that the 1909 map was
“intended to depict” a high-water line eight feet below the crest of the dam, i.e.,
at 7,277 feet, id. at 92–93; and (9) since 2013, the Irrigation District has filled the
reservoir only as high as 7,275 feet, id. at 93.
The district court then reviewed the law, concluding that “the extent and
scope of a right-of-way granted under [the Act] is set and determined upon
14 approval of the required map” and, thus, “begins with the surveyed water line, as
shown on the approved map.” Id. at 94, 96. “Only in this way does the public
have definite notice of the boundaries of the right-of-way for purposes of
settlement.” Id. at 96. The district court, therefore, rejected the Irrigation
District’s view that its right-of-way is defined by reference to the extent of its
reservoir’s water. See id. at 96–98. The district court nonetheless opined that
given “the realities that a reservoir is, by definition, meant to store a certain
capacity of water, and that Rosecrans intended to depict a level water line –
necessarily at a certain elevation – the line depicted on the 1909 map is not a
fixed, permanent line, but is instead a transitory line that has moved and will
continue to move over time.” Id. at 98. That is, “[b]ecause a reservoir can only
be managed by controlling the level of the water contained therein, the scope and
extent of [the Irrigation District’s] right-of-way easement must be set at a certain
elevation level.” Id.
To determine that elevation level, the district court looked to “construction
application documents” contemporaneous with the 1909 map, taking from them
the height of the dam above the high-water line of the reservoir (i.e., eight feet). 5
5 The district court did not specify which “construction application documents” it was relying on. Its findings of fact, however, mentioned this eight- foot figure in connection with Mr. Sevison’s state-law, water-rights application. See Aplts.’ App., Vol. I, at 83.
15 Id. at 98–99. The district court further observed that the elevation of the crest of
the dam has consistently been 7,285 feet over time, and it would not be subject to
erosion “in the same manner as the shoreline.” Id. at 99. Thus, the Irrigation
District’s right-of-way was at an elevation of 7,277 feet, reflecting a distance of
eight feet between “the intended high water line” and the elevation of the crest of
the dam (i.e., 7,285 feet). Id. The district court accordingly quieted title in favor
of the Irrigation District. Moreover, since the elevation of the water in the
reservoir had not exceeded the extent of the right-of-way during the events giving
rise to this lawsuit, the Landowners’ damages claims were dismissed.
The district court entered judgment, and the Landowners timely appealed.
II
A
Where a district court makes findings of fact and draws conclusions of law
following a bench trial, we review its findings of fact for clear error and its
conclusions of law de novo. See United States v. Estate of St. Clair, 819 F.3d
1254, 1264 (10th Cir. 2016); Sanpete Water Conservancy Dist. v. Carbon Water
Conservancy Dist., 226 F.3d 1170, 1177–78 (10th Cir. 2000). “A finding is
clearly erroneous when the reviewing court has a definite and firm conviction that
it is mistaken, even though there may be some evidence to support it.” Estate of
St. Clair, 819 F.3d at 1264.
16 B
The Landowners contend that the district court erroneously ruled that the
boundary of the right-of-way was determinable by reference to something other
than the approved map. See Aplts.’ Opening Br. at 19–50. The Irrigation District
makes a variety of responsive arguments, but it characterizes the “real issue” as
follows: the purpose of a right-of-way under the Act is to permit the storage of
water, which “seeks its own level,” and, thus, the only way to manage reservoir
water is by reference to the elevation of the water. Aplee.’s Resp. Br. at 38–40.
As a result, resolving this case “necessarily required a ruling as to the elevation to
which [the Irrigation District] . . . can store water.” Id. at 16 (emphasis added).
Having thoroughly considered the parties’ arguments, we agree with the
Landowners that the district court’s ruling was premised on a legal error. 6
Preliminarily, the Landowners emphasize that the Secretary’s approval is
necessary to give rise to any right-of-way under the Act. This is, for example, the
primary thrust of the federal caselaw on which they rely. See, e.g., Utah Power &
Light Co. v. United States, 243 U.S. 389, 407 (1917) (ruling that defendants had
not acquired a right-of-way under the Act in part because “no maps of location
6 Because we agree with the Landowners on this issue and thus reverse and remand, we do not reach the Landowners’ remaining assignments of error. See Aplts.’ Opening Br. at 2 (listing those other issues).
17 ha[d] been filed or approved”); Kern River Co. v. United States, 257 U.S. 147,
151 (1921) (“The grant was to become effective when the [Secretary’s] approval
[of the map] was given; that is to say, the right of way was then to vest in the
applicant for the purpose indicated in the act.”); see also Pine River Irrigation
Dist. v. United States, 656 F. Supp. 2d 1298, 1314 (D. Colo. 2009) (collecting
cases for the proposition that, “[c]onsistent with this Supreme Court authority,
virtually all reported federal and state case law, from 1899 to the present,
construes [the Act] as requiring approval of the [Secretary] in order for a vested
right of way to be obtained under the Act’s provisions”). This line of authority is
of limited relevance here, however, because the district court recognized that such
approval was necessary. In fact, it purported to make the approved map the
touchstone of its analysis and clearly rejected the Irrigation District’s contrary
argument that its right-of-way extended to “the lands occupied by the water of the
reservoir.” See Aplts.’ App., Vol. I, at 96, 98.
Rather, the central problem with the district court’s reasoning is its
conclusion about what the Secretary actually approved. Specifically, the district
court reasoned that because Mr. Rosecrans “intended to depict a level water line –
necessarily at a certain elevation – the line depicted on the 1909 map is not a
fixed, permanent line, but is instead a transitory line that has moved and will
continue to move over time.” Id. at 98 (emphasis added). To determine the
18 boundaries of the Irrigation District’s right-of-way, the district court looked
beyond the approved map and accompanying field notes to other evidence,
ultimately divining the right-of-way’s boundaries by extrapolating from the
originally intended high-water elevation level and the height of the reservoir’s
dam. Id. at 98–99.
This portion of the district court’s ruling was erroneous. The ruling was
based principally on “the realities that a reservoir is, by definition, meant to store
a certain capacity of water.” Id. The relevant portions of the Act, however,
which are expressly directed at issues attendant to water management, do not say
that the lines on an approved map will necessarily respond to those realities by
being transitory as to topography, but constant as to a certain elevation. See 26
Stat. at 1102. The relevant regulations do not mention this issue
either—emphasizing instead how complete the field notes should be and that the
map must be “strictly conformable” to them. See 36 Pub. Lands Dec. 567, ¶¶ 10,
11.
Turning from the general statutory and regulatory language to the approved
map in this case, we similarly find little to no support for the district court’s
ruling. It is true that the map and its accompanying field notes mentioned the
running of “level lines” in surveying the reservoir and drafting the map. That is,
the face of the map certified that the surveys of the reservoir and its canals
19 “represent level lines, which are the proposed water lines of the reservoirs and the
proposed grade lines of the canals,” Aplts.’ App., Vol. I, at 119, while the
accompanying field notes stated that a “self-reading rod divided into feet and
tenths . . . served . . . as a level rod to determine the true water line,” id. at 105.
This hardly justifies, however, the conclusion that the line depicted on the
map varies with topographical features after approval in order to maintain a
constant elevation. At the very least, for the approved map to be so read, it would
seem necessary for that map to include the relevant elevation figure. But the map
at issue here does not. Instead, as the district court recognized, deducing that
figure requires reference to other documents. In other words, our analysis might
be different had Mr. Rosecrans submitted for approval a map and field notes
listing an elevation figure, such that the Secretary’s approval of the map of the
right-of-way might fairly be read as incorporating that elevation figure. Here,
however, the Secretary cannot be held to have approved an elevation figure that
was not directly presented to him.
Authorities considering the purposes of the approved-map requirement cast
the district court’s conclusion further into doubt. For example, according to an
1894 Department of the Interior circular, one of the Department’s “dut[ies]” in
reviewing applications under the Act was to ascertain whether the “proposed
works [were] described in such a manner that the benefits to be granted by the
20 approval of the Secretary [were] defined so as to avoid future uncertainty.” U.S.
Dep’t of Interior, Circular, Right of Way—Canals, Ditches and Reservoirs, 18
Pub. Lands Dec. 168, ¶ 28 (Feb. 20, 1894).
Similarly, in an administrative decision, an official in the Department’s
General Land Office considered an application under the Act where the map gave
a different figure for the width of a canal than was given in other application
paperwork. See The Pecos Irrigation & Improvement Co., 15 Pub. Lands Dec.
470, 470–71 (Dep’t of Interior Nov. 19, 1892). 7 According to the official,
although it was “immaterial” which measurement was correct, it was nonetheless
“important that the width be stated definitely and certainly before approval.” Id.
at 471. The official also observed that, in some places, the shore line of a canal
was not surveyed, but was apparently drawn on the map using “mere estimates.”
Id. at 472. The official continued:
I am called upon to say that the object and purpose of the law in requiring a map of a canal to be filed, that its lines may be noted on the tract-book and records of the land office was that such map should accurately and definitely show the lines of the canal that they should be so marked and noted that a competent surveyor with proper instruments could go upon the ground and retrace the boundary line between the canal and the land of any
7 “[D]ecisions of the Land Department on matters of law are not binding upon this court, in any sense. But on questions similar to the one involved in this case [i.e., the interpretation of a particular land grant statute] they are entitled to great respect at the hands of any court.” Hastings & Dakota R.R. Co. v. Whitney, 132 U.S. 357, 366 (1889).
21 adjoining proprietor.
The statute gives to the company not only the right to construct a canal across the public lands, but it gives them a perpetual easement for canal purposes in fifty feet on each side of such canal, the meander line being fifty feet from the high water line. If there is nothing to determine this line but the flow of water, the rise and fall, the seasons of drought and rainfall will be productive of litigation vexatious and interminable.
Id. (emphasis added).
Pecos Irrigation and Improvement also stated, however, that the map before
the Department would “furnish no accurate or reliable information to the officers
of the government, or to persons who might examine it with a view to making
settlement on the tract encumbered by this easement.” Id. at 472–73. Therefore,
the official ultimately returned the map without approval, further stating that he
had the duty to “see that the lines are so fixed and determined that the patentee
may know what he is receiving of the government when he takes its patent for the
land over which this canal is constructed.” Id. at 473; see also Windsor Reservoir
& Canal Co. v. Miller, 51 Pub. Lands Dec. 27, 33 (Dep’t of Interior Jan. 10,
1925) (“The extent of the ground occupied by the water of a reservoir, for which
a right of way has been granted under [the Act], must be determined from the
high-water line, as shown by the approved map. The approval of the map by the
Department is an adjudication that the whole area shown to be within the
high-water line of the reservoir is necessary for the construction, maintenance,
22 and care of such reservoir.” (emphasis added)).
These authorities make clear that among the central purposes of the Act’s
approved-map requirement are giving notice of the boundaries of the right-of-way
under the Act, promoting certainty regarding such boundaries to permit planning
for orderly development of adjacent properties, and preventing unnecessary
litigation. While the district court cited these authorities for similar propositions,
its ultimate ruling untethered the Act’s approved-map requirement from those
rationales. The detailed platting at a particular moment of a “transitory line that
has moved and will continue to move over time,” Aplts.’ App., Vol. I, at 98, is of
little use for planning and notice-giving purposes. See also Aplts.’ Supp. App. at
9 (Hr’g. Tr., dated June 23, 2016) (the district court questioning the purpose “of
getting a survey and putting it on a plat and correlating it to the land records if
that isn’t going to control,” and observing that not allowing it to control would be
“nonsensical and useless, because [allowing the plat to control] provides future
owners and purchasers the ability to know what the easement, the right-of-way
is”). It is clear, moreover, that the Secretary here approved of a line fixed to the
original topography because the map does not in any way indicate that the line is
transitory, and the factor that allegedly determines the line’s varying location
(i.e., water elevation) is not expressed on the map and requires reference to other
documents to ascertain.
23 We also find support for the Landowners’ position, albeit by analogy, in
City and County of Denver v. Bergland, 695 F.2d 465 (10th Cir. 1982). There,
interpreting a different statutory scheme, we held that construction work deviating
from a right-of-way “shown on the original map application” was “not authorized
by the original grant.” Id. at 480. Notably, we rejected Denver’s argument that
its construction along a new “alignment” was acceptable because it was consistent
with a “gravity flow concept” and followed “almost a parallel alignment,” ruling
that “the right of way was not granted in recognition of a concept.” Id. Instead,
Denver was granted a right-of-way for a “specific area” based on a map and field
notes that (as here) were required to be so complete that from them the surveys
could be “accurately retraced by a competent surveyor with proper instruments.”
Id. We said that “[i]t was rational for the [Department] to require [such] accuracy
so that it and the [United States Forest Service] could plan properly,” and, “[i]f
problems were encountered in actual construction, the [Department] provided a
procedure for amending the application.” Id. We, thus, held that Denver had
exceeded the scope of its original grant, which was “still valid, and, but for the
fact that it would be technologically difficult and economically infeasible, could
still be utilized by Denver.” Id.
Here, as in Bergland, the Department defined the Irrigation District’s rights
by reference to an approved map depicting a specific geographic area;
24 consequently, other factors that arguably could be advanced as bearing on the
scope of its rights—whether elevation or the practical infeasibility of using the
right-of-way actually depicted on the map—are irrelevant. But cf. Aplee.’s Resp.
Br. at 6 (“For [the Irrigation District] to utilize its water rights for Lake Hattie, it
must be able to fill to the spillway elevation of 7278 feet.”). 8
Therefore, in the salient light of the statutory and regulatory text, the
contents of the map (and field notes) that the Secretary actually approved in this
case, the purposes of the approved-map requirement, and our analysis in
Bergland, the district court erred in considering water elevation as the defining
feature of the right-of-way in this case and in looking beyond the approved map
to determine that elevation.
The Irrigation District makes other arguments for affirmance, none of
which we find availing. It argues that the BLM was required to follow Wyoming
8 The Irrigation District cites Bergland for the proposition that if there is a “deviation of a facility from its course, [the] deviation ‘is a problem of administration, within the sole jurisdiction of the [Department of] Interior.’” Aplee.’s Resp. Br. at 20 (quoting Bergland, 695 F.2d at 480). This portion of Bergland addressed the relative regulatory roles of two federal agencies—the United States Forest Service (a part of the Department of Agriculture) and the Department of the Interior—with respect to the construction at issue there. See 695 F.2d at 480–81. This discussion is not apposite here. And, tellingly in this regard, the Irrigation District makes no actual argument that this proposition from Bergland applies to these facts.
25 law in conducting the re-survey and, had it done so, it would have recognized that
it “needed to define the [Act] easement by the high-water line elevation” and “the
parties would not be in this [c]ourt today.” Aplee.’s Resp. Br. at 25; see also
Johnson Irrigation Co. v. Ivory, 24 P.2d 1053, 1057 (Wyo. 1933) (concluding that
the line shown on maps approved under the Act was a “meander line intended to
coincide with the natural ground shore,” and “[i]t is generally held in such cases
that the body of water itself, and not the surveyed meander line, is the true
boundary”). And, more generally, the Irrigation District reiterates the position it
took in district court, i.e., that Johnson and other authorities counsel that a right-
of-way under the Act is defined by the extent of the reservoir’s water. See, e.g.,
Grand View Seepage Reservoirs & Ditches, 43 Pub. Lands Dec. 317, 320 (Dep’t
of Interior May 29, 1914) (quoting the Act and stating that, “[n]ecessarily, the
high water line of water having a natural ground shore must be taken as the
marginal limit of such water”).
As the Irrigation District observes, however, the district court’s ruling was
not premised on any of those rationales. See Aplee.’s Resp. Br. at 25–26. Indeed,
although the district court found that the record concerning the BLM re-survey
“create[d] doubt” as to its accuracy in retracing the line on the 1909 map, Aplts.’
App. at 89, the district court did not discuss the BLM re-survey or its alleged
defects in reaching its ultimate conclusions. Moreover, the district court
26 expressly rejected the Irrigation District’s argument that its right-of-way is
defined by the extent of its reservoir’s water. At oral argument, the Irrigation
District acknowledged that the district court had adopted “the [Landowners’] own
theory,” supplemented with high-water elevation information, rather than the
Irrigation District’s “alternative theory.” Oral Arg. 32:38–32:54.
Of course, we can affirm on alternate grounds if the record is adequately
developed. See, e.g., United States v. Gaines, 918 F.3d 793, 800 (10th Cir. 2019).
We find, however, the Irrigation District’s arguments unconvincing. We first turn
to its state-law argument based on Johnson. See Aplee.’s Resp. Br. at 25. We
briefly review the facts of that case before explaining our reasoning.
In Johnson, an irrigation company had a right-of-way under the Act, and
lands covered by its reservoir on the right-of-way had been granted to the
defendants subject to the right-of-way. 24 P.2d at 1053–54. The dispute in that
case concerned the right to use, for agricultural purposes, certain lands within the
“surveyed marginal line” on the approved maps. Id. at 1054.
In analyzing the scope of the right-of-way, and particularly whether the
approved maps delineated the irrigation company’s rights, the Wyoming Supreme
Court stated that the line of the reservoir “on the approved maps is a meander line
intended to coincide with the natural ground shore, and not different from the
meander line of a natural lake.” Id. at 1057. The court observed that “[i]t is
27 generally held in such cases that the body of water itself, and not the surveyed
meander line, is the true boundary,” and that, “[i]n the eye of the law[,] the shore
of a body of water, though a shifting line, is just as fixed a boundary as a street or
wall.” Id. Johnson concluded that the Secretary’s approval of maps “showing a
meander line as the north boundary of plaintiff’s right of way had the legal effect
of a declaration that the boundary between the land granted . . . to plaintiff and
the land retained and thereafter granted . . . to defendants is the shore of the
reservoir, and not the meander line shown on the maps.” Id. at 1058. That ruling
purported to “insure[] to plaintiff the right of way Congress intended to grant,
while permitting defendants to enjoy their lands ‘subject to such right of way.’”
Id.
Johnson is of little assistance to the Irrigation District, however, because
the central issue here did not arise in Johnson, where the disputed land was within
“the surveyed marginal line as shown on plaintiff’s maps filed and approved
under [the Act].” Id. at 1054; see id. at 1055, 1058 (stating that “[p]laintiff’s
right is shown by the approved maps” and that plaintiff had the right to “all the
land bounded by the platted meander line of its reservoir”). Johnson did not
consider what is at issue here: whether a right-of-way under the Act may extend
beyond the platted line if the reservoir’s high-water elevation so dictates.
Moreover, contrary to the Irrigation District’s contention that the BLM was
28 required to adhere to Wyoming law in conducting the re-survey, there is no
suggestion that state law is controlling here. Notwithstanding general statements
in cases like Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co.,
429 U.S. 363 (1977) that property rights, including water rights, are defined by
state law, see id. at 377–79, the issue presented in this case, i.e., the scope of a
right-of-way created entirely by federal law, is definitionally a question of federal
law. See United States v. Oregon, 295 U.S. 1, 27–28 (1935) (stating that the
interpretation of federal land grants is a federal question that involves the
consideration of state law “only in so far as it may be determined as a matter of
federal law that the United States has impliedly adopted and assented to a state
rule of construction as applicable to its conveyances”).
Our decision in Southern Utah Wilderness Alliance v. Bureau of Land
Management, 425 F.3d 735 (10th Cir. 2005), as amended on denial of reh’g (Jan.
6, 2006), is informative here. That case concerned “the legal status of claims by
local governments to rights of way for the construction of highways across federal
lands managed by the [BLM],” and the “central question” was how rights under
the Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253 (commonly called “R.S.
2477”)—an “open-ended grant” of rights-of-way for constructing highways over
public land—were acquired. S. Utah Wilderness All., 425 F.3d at 740, 758. We
concluded “that federal law governs the interpretation of R.S. 2477, but that in
29 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.” Id. at 768.
The Irrigation District advances Southern Utah Wilderness Alliance in
support of incorporating state-law principles here. That case, however, actually
militates against that result because we borrowed state-law principles there only
in light of the specific history and structure of R.S. 2477. Id. at 761–68. Indeed,
we reiterated the rule of Oregon, mentioned above, that courts may use state law
to interpret federal land grant statutes “only in so far as it may be determined as a
matter of federal law that the United States has impliedly adopted and assented to
[it].” Id. at 762–63 (quoting Oregon, 295 U.S. at 28). Here, by contrast, the
Irrigation District directs us only to language in the Act that rights-of-way under
the Act “shall not be construed to interfere with the control of water for irrigation
and other purposes under authority of the respective States or Territories,” 26
Stat. at 1102, and a 1947 BLM survey manual stating that surveyors should
“conform” their defining of partition lines in the beds of non-navigable streams to
state law and “stud[y]” the laws and court decisions of states where they perform
their work “in order to determine the procedure required to protect the rights of
the riparian owners,” Aplee.’s App., Vol. VIII, at 2020 (Surveying Manual, dated
30 Aug. 5, 1947). Those two statements fall far short of showing that the United
States has impliedly adopted and assented to any state-law principles set forth in
Johnson.
Finally, for essentially the same reasons cited by the district court, we also
reject the Irrigation District’s argument that its right-of-way is defined simply by
the extent of its reservoir’s water. See Aplts.’ App., Vol. I, at 96–98. Although
the Irrigation District is correct that the Act states that its right-of-way extends to
the “ground occupied by the water of the reservoir,” the Act also provides that the
right of way will be subject to the government’s approval of a “map[] of location”
of that reservoir, see 26 Stat. at 1101–02—with the centrality of that government
approval being further bolstered by subsequent regulations.
Moreover, because the administrative decisions on which the Irrigation
District relies do not directly support its position, it is compelled to rely on—at
most—tangentially relevant dicta from those cases. See, e.g., Boughner v.
Magenheimer, 42 Pub. Lands Dec. 595, 598 (Dep’t of Interior Aug. 29, 1913)
(“[The Act] does not require the entire system to be surveyed, mapped, and
applied for at the same time. Section 19 thereof specifically authorizes the filing
in sections of 10 miles each, within 12 months after the date of completing survey
of each section.” (emphasis added)). Compare Grand View Seepage, 43 Pub.
Lands Dec. at 320 (stating that “the high water line of water having a natural
31 ground shore must be taken as the marginal limit of such water”), with Aplts.’
App., Vol. I, at 96 (the district court observing that the Department in Grand
View Seepage “was making a distinction between the marginal limits of water
having a natural ground shore and the marginal limits where the water is confined
by a dam, as opposed to a difference between the surveyed line on the approved
map and the high-water line elevation or spillway of the reservoir”).
In light of the authority we discussed previously concerning the importance
of the approved-map requirement and the purposes served by it, we decline the
Irrigation District’s invitation to affirm on the ground that its right-of-way is
defined simply by the extent of its reservoir’s water.
***
In sum, the statutory and regulatory framework before us requires that the
Irrigation District’s right-of-way under the Act be determined by reference to the
approved map. It may well be, as the district court reasoned, that this map tacitly
contemplated a right-of-way defined by reference to a particular high-water
elevation level at the time it was drafted. But such an elevation level is nowhere
to be found on the map that the Secretary approved. Under these circumstances,
neither the relevant legal authorities, nor the purposes of the approved-map
requirement, would countenance a ruling that held that the scope of the right-of-
way here is to be defined by such an elevation level. Thus, the district court erred
32 in holding that “[b]ecause a reservoir can only be managed by controlling the
level of the water contained therein, the scope and extent of [the] right-of-way
easement must be set at a certain elevation level.” See Aplts.’ App., Vol. I, at 98.
The Irrigation District’s arguments to the contrary—which embrace, on the one
hand, the district court’s rationale and offer, on the other, alternate grounds for
affirmance—are unavailing.
III
In light of the foregoing, we REVERSE and REMAND for additional
proceedings consistent with this order and judgment.
ENTERED FOR THE COURT
Jerome A. Holmes Circuit Judge