Category: public roads and highways

Sierra Club must exhaust administrtative remedies before challenging Iowa DOT highway extension proposal

by Kaitlin Heinen

Sierra Club Iowa Chapter, Linda Biederman, and Elwood Garlock v. Iowa Department of Transportation
(Iowa Supreme Court, June 7, 2013)

The Iowa chapter of the Sierra Club has more than 5000 members residing in the state, some of which hike in Rock Island State Preserve and Rock Island County Preserve. The Iowa Department of Transportation (IDOT) is a state administrative agency that has proposed extending Highway 100 west of Cedar Rapids, which would run adjacent to Rock Island State Preserve and through Rock Island County Preserve, thus negatively impacting the ecosystems in the two preserves.

The Sierra Club Iowa Chapter and two of its members filed a petition for judicial review challenging IDOT’s Highway 100 project. The IDOT responded with a motion to dismiss, which was granted by the district court because the Sierra Club “had not exhausted administrative remedies by first seeking a declaratory order from IDOT under section 17A.9(1)(a).” The Sierra Club did not participate in any administrative proceedings with IDOT prior to filing the petition for judicial review.

On appeal, the Iowa Supreme Court addressed the issue “if a party challenging agency action must seek a declaratory order from the agency under section 17A.9(1)(a) before petitioning for judicial review in order to satisfy the exhaustion doctrine.” Important to note, Iowa Code § 17A.19(1) provides: “A person or party who has exhausted all adequate administrative remedies and who is aggrieved or adversely affected by any final agency action is entitled to judicial review thereof . . . .”  There are situations when a party can bypass the exhaustion doctrine; however, “the Sierra Club has not preserved error on an argument for one of these exceptions to apply.”

The Sierra Club filed a complaint in federal court, captioned “Complaint for Declaratory and Injunctive Relief.” The complaint involved the United States Secretary of Transportation and the Administrator of the Federal Highway Administration as defendants. The Sierra Club alleged that “the secretary and administrator did not follow the applicable federal statutes and regulations when they issued and approved the Final Supplemental Impact Statement for the Highway 100 project.” Because of the complaint’s caption, the Iowa Supreme Court held that the Sierra Club requested declaratory and injunctive relief. Because the Sierra Club sought declaratory relief, “the court must [construe] section 17A.9 to determine whether declaratory orders are mandatory or permissive.” Section 17A.9 was adopted in 1974 as part of the Model State Administrative Procedure Act. When enacted, 17A.9 required “any agency with authority to issue declaratory rulings to do so within thirty days after a party files the petition…Failure of the agency to do so results in the administrative remedy being ‘deemed inadequate or exhausted.’”

To construe such a statute, the court must determine legislative intent. If the statute’s language is unambiguous, the court looks no further. One could argue that “the requirement to file a petition for declaratory relief with the agency is permissive because the word ‘may,’ as found in section 17.9(1)(a), is unambiguous.” The Iowa Code’s rules of statutory construction state: “The word ‘shall’ imposes a duty. . . . The word ‘must’ states a requirement. . . . The word ‘may’ confers a power.” Further, “the legislature’s use of the word ‘may’ usually indicates legislative intent for the statute to apply permissively…[so] a person can argue that a party need not exhaust administrative remedies before filing a declaratory judgment action with the court.” But to the contrary, “when a statute provides a person with an administrative remedy and uses the word ‘may,’ but does not explicitly state the administrative remedy is the exclusive remedy, the person is still required to exhaust the administrative remedy before seeking court intervention…[so] a person can also argue that a party must file a declaratory order with the agency before seeking court intervention, because the Code uses the word ‘may.’” As a result of these competing interpretations, the court found the statute ambiguous.

After assessing the statute in its entirety, the court concluded the legislature’s intent when enacting section 17A.9(1)(a) “requires the Sierra Club to first petition IDOT and therein ask the agency to determine whether IDOT complied with sections 314.23(3) and 314.24 in extending Highway 100 adjacent to the Rock Island State Preserve and through the Rock Island County Preserve.” First, by using the term “inadequate or exhausted,” the legislature indicated that a party must first exhaust his or her administrative remedies before seeking court intervention. Second, an article written by the 1973-1974 counsel to the Subcommittee, Arthur Bonfield, “revealed that the legislature created the administrative procedure for agency-issued declaratory orders to replace the court-provided remedy of declaratory judgments for matters within an agency’s jurisdiction,” which means that the legislature clearly “intended section 17A.9 to be the preferred method for obtaining a declaratory order when a person challenges the agency’s administration of a statute.” Third, “in a declaratory order proceeding, the agency must state in its order the facts it relied upon and the basis for its decision…[which] ensures the agency will make a complete record and the parties will know the rationale supporting the agency’s decision.” Fourth, though the Sierra Club argued it would be futile to ask the agency to reverse its own decision, the court did not agree. In the past, “agencies…have decided many issues within their purview…[with] no evidence to suggest agencies will conduct declaratory order proceedings in a biased, unprofessional manner and without regard for the rules promulgated by the legislature.” Finally, “any party to a declaratory order may seek judicial review of that order…[which] protects a party to a declaratory order proceeding if the agency makes the incorrect decision.”

Therefore, the Iowa Supreme Court “concluded [overall] that the Sierra Club must first seek a declaratory order under Iowa Code section 17A.9(1)(a) before asking the court for relief; and thus, the exhaustion doctrine bars its petition.” The Iowa Supreme Court affirmed the district court’s judgment.

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Historic use and maintenance of established unpaved trail as public road

Gary Taylor

by Victoria Heldt

Clearwater County Board v. Terrance Bowman
(Minnesota Court of Appeals, May 21, 2012)

Mallard Grade is a 10-mile long, unpaved trail in Clearwater County.  It runs north from state highway 200 and was originally a railroad used to transport logs.  The rails were removed in 1913 and since then the trail has been “regularly used for logging, hunting and recreation by the public and for forestry management by the County.”  Terrance Bowman owns land that he purchased in 1996 that intersects Mallard Grade.  In 2009, Bowman erected a gate across Mallard Grade where it enters his property from the south.  Clearwater County requested, both formally and informally, that he remove the gate, but he refused.  The County brought this action to have Mallard Grade declared a public road and to prohibit Bowman from blocking it with a fence.

Minn. Stat. § 160.05 states “when any road or portion of a road has been used and kept in repair and worked for at least six years continuously as a public highway by a road authority, it shall be deemed dedicated to the public to the width of the actual use and be and remain, until lawfully vacated, a public highway whether it has ever been established as a public highway or not.”  The issues taken to district court were (1) whether Mallard Grade was used or worked for six continuous years and, if so, (2) the width of the road.

The County brought forth a team of several witnesses to describe the character and usage of Mallard Grade.  Bruce Cox, the County’s Land Commissioner, testified that the vegetation growth on either side of the trail show that the county had historically maintained the trail to a width of 18 feet and that it had provided “very little maintenance” to the trail.  Milo Fultz, a retired forester and road worker, testified that he installed culverts, trimmed vegetation, filled holes, bladed, and spread gravel over the trail annually for eight to ten years during the 1980s and 1990s.  He estimated the trail to be between 16 and 18 feet wide.  Nicholas Severson, another former forester, testified that he bladed Mallard Grade annually between 1990 and 2004 and that the trail was about 18 feet wide.

Gary Anderson, a township supervisor, stated he used Mallard Grade for logging operations since the 1970s until Bowman put up the gate in 2009.  Virgil Norquist, a property-owner near highway 200 since the mid-1930s, testified that the trail was about 18 feet wide in the 1970s and 1980s.  John Miller, another property-owner, testified that he began using the trail before 1945 to access hunting grounds and that it was best maintained during the 1980s when the logging operations were active.  Bowman testified, however, that the County had not maintained Mallard Grade since he purchased the property in 1996.  He further testified that the trail was only seven and one-half feet wide.

The district court found that Mallard Grade has been used by the public since at least the 1940s and that the County has maintained the trail for eight to ten consecutive years.  It determined the road to be 18 feet wide and to be a public road pursuant to section 160.05 of Minnesota statute.  Bowman appealed.

Bowman first challenged the court’s determination that the road had been kept in repair for at least six years as required by statute.  The Court looked to the extent of the maintenance how it compared to the requirements.  In a previous case brought under the same statute, it was determined that “the maintenance must be of a quality and character appropriate to an already existing public road.”  In Ravenna Twp. v. Grunseth, the Supreme Court ruled a road had not been properly maintained because the county had not installed ditches or culverts and had only graded and graveled the trail twice in 40 years.  In Leeper v. Hampton Hills, Inc., the Supreme Court concluded that a road had been properly maintained by installing culverts, grading and graveling the trail, and plowing the snow during the winter.  The Court noted that the maintenance performed on Mallard Grade was more like that done in the Leeper case than in the Ravenna Twp. case since several people testified to filling potholes, clearing brush, blading, and spreading gravel on the trail.  It determined the trail had indeed been properly maintained for at least six years.

Bowman next argued that the trial court erred in light of his testimony that he never saw any maintenance on Mallard Grade take place since 1996.  The Court concluded that his argument was flawed.  The trail was made into a public road before Bowman purchased his property in 1996 by the fact that the trail had been maintained since the 1980s according to the witnesses.  The road only needed to be maintained for six years from that time on to be considered a public road.

Bowman then challenged the district court’s finding that the road measures 18 feet wide.  The Court noted that a statutorily-dedicated road is established “to the width of the actual use” (Minn. Stat. §160.05, subd. 1).  and that the width of a road “is not limited to that portion of the road actually traveled; it may include the shoulders and ditches that are needed and have actually been used to support and maintain the traveled portion.”  The district court provided an exhibit describing the trail as 18 feet wide.  That conclusion was supported by the testimonies of Cox, Fultz, Severson, Norquist, and Anderson, who all testified about the historical use of the road.  The Court determined the district court’s findings were supported by the record.  It affirmed the decision.

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County establishes easement for road by adverse posession across livestock ranch (ND)

Gary Taylor

by Gary Taylor

McKenzie County v. Reichman
(North Dakota Supreme Court, January 24, 2012)

In 2006, McKenzie County sued Reichman, alleging a road that “Flat Rock Road” which crosses her ranch  had been used by the public in an open, general, continuous, and uninterrupted manner for at least 20 successive years and seeking a prescriptive easement and formal declaration as a public road.  According to Reichman, the public’s use of the road through her ranch significantly increased after she purchased the ranch in 2000, including an increase in traffic attributable to the oil industry. As a result, she sought to restrict public use of the road, including placing gates or cattle guards across the road as part of her livestock operation.  She claimed any public use of the road was permissive, and there had been no continuous, adverse, hostile, and uninterrupted use of the road for the prescriptive 20-year period. She counterclaimed for damages for inverse condemnation. After a trial, the district court declared a prescriptive easement in favor of McKenzie County, and Reichman appealed.

The North Dakota Supreme Court began by noting that a party claiming a road by prescription must establish by clear and convincing evidence the general, continuous, uninterrupted, and adverse use of the road by the public under a claim of right for 20 years.  The court then recited the extensive presentation of the history of the land and the road dating back to 1920 presented at the trial court.  Important to the court was the fact that the County constructed a graded road in the 1950s with the knowledge and consent of the adjacent landowners, including the then-owner of the Reichman property.  The County provided maintenance for the road, including grading, plowing snow, placing scoria on the road, and installing culverts and bridges. Testimony was presented that the road was only blocked for short periods when ranchers moved livestock.  According to the court, the 20-year period for measuring a prescriptive use begins when a burden is placed on the land and relates back to the inception of the adverse use which, in this case, was the point in time in the 1950s when the County first constructed a graded road.  “The expenditure of public funds for construction and maintenance of a road is evidence of an adverse use….Gates across roads are indicative of permissive (contrasting to an adverse) use, but gates for working livestock which do not deny access or interfere with public traffic do not mandate a permissive use.”  Therefore. the court determined that McKenzie County had, in fact, established a prescriptive easement and the right to a formal declaration of Flat Rock Road as a public road.

The court further stated that the width of a prescriptive easement for a road is not limited to that portion of the road actually traveled, but may include the shoulders and ditches that are needed and have actually been used to support and maintain the traveled portion of the road during the prescriptive period.  Considering the district court declared the road to be a public road “as it presently exists,” the Supreme Court remanded the case for a determination of the prescriptive road either by width, by metes and bounds, or by other suitable description as the road existed at the commencement of the action.

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Town’s denial of driveway permit based on unique ordinance upheld

Gary Taylor

Ottman v. Town of Primrose
(Supreme Court of Wisconsin, March 22, 2011)

by Victoria Heldt

In 2001, the Ottmans had interest in a plot of land located in the Town of Primrose, which had been zoned “A-1 Exclusive Agricultural.”  Before purchasing the land, the Ottmans petitioned the Town of Primrose Board of Supervisors to approve their request to build a field road on the property.  Primrose operates under a Land Use Plan that ultimately works to “actively use and improve land use control measures which will discourage and prevent non-farm development in agricultural preservation areas.”   The Ottmans intended to turn the plot into a Christmas tree farm and needed access to the trees and to an agricultural accessory building they planned to build.  After discussion, the Board granted the Ottman’s permission to build an access off Primrose Center Road in order to enhance the agricultural use of the property.  The Board made special mention of the fact that permission to construct the field road could later be misinterpreted as approval for a residential driveway; however, it was concluded that a driveway permit would not be issued on the property because of safety issues.

Subsequently the Ottmans purchased the property, erected an agricultural accessory building, built a 500-foot gravel field road, planted trees on 18 acres, and rented 29 acres to Al Hanna (a neighbor) to grow field corn.  In 2004, the Ottmans filed a preliminary application for a driveway permit and an approval of the site plan for an area on which they planned to build a residence.  They contended that the Christmas tree farm would not be viable without a residence and, upon completion, the farm will produce an annual income of $30,000.  They planned to construct the home on the top of a hill about 200 feet north of the existing agricultural accessory building.  The Board denied the application primarily on the grounds that the Ottmans application failed to meet the Agricultural Productivity Clause contained in the Town of Primrose Driveway Ordinance.  The clause reads:  “No driveway shall be approved in the Town of Primrose if the Town Board finds that the driveway will adversely impact productive agricultural land, unless the town Board finds that the driveway is necessary to enhance the agricultural productivity of an adjacent parcel or the person requesting the permit can show that the parcel to be served by the driveway is capable of producing at least $6000 of gross income per year.  Under any circumstance, the Town Board shall approve a driveway with the least impact on agricultural land.”  A supervisor explained that the previous interpretation of the farm income requirement needed proof of actual income, not speculative income.  Since the Ottman’s did not show any evidence of actual income from the farm operations, their request was denied.

The Ottmans filed a certiorari action in the Dane County Circuit Court and, while the case was pending, both parties agreed to send the case back to the Town of Primrose for review under Wis. Stat. Ch. 68.  This statute allows a review of municipal determinations.  The review included a site visit and a special hearing where both sides presented exhibits, called witnesses, and provided testimony.  Again, the Board denied the Ottman’s request due to the failure to meet the Agricultural Productivity Clause’s farm income requirement.  The Board added that even if the Ottmans did meet that requirement, the Board would not have approved of the proposed site of the residence.  Since the site sat atop a hill and would require a longer driveway that would consume more amounts of agricultural land, the Board felt it did not meet the ‘least impact’ requirement of the Ordinance.

In the circuit court, the Ottmans amended their complaint to include new arguments.  They argued that the Board interpreted the law incorrectly when they stated that it required proof of current income from the property.  They argued that it should only require proof of the capability to produce income.  Additionally, the Ottmans argued that the Town’s denial was willfully arbitrary and biased, and that the proposed site for the residence would satisfy the ‘least impact’ clause.  The court noted that in a certiorari review a presumption of correctness is granted to the municipality’s decision, and that the permit denial was correctly reviewed under Chapter 68 rather than the statutory certiorari review.  It also stated that the Board accurately interpreted and applied both the “farm income” requirement and that “least impact” requirement within the ordinance.   The court of appeals affirmed.

The Ottmans brought three main questions to the Supreme Court, two of which are reviewed here:  1) does the deference given to land use decisions made by local governments prevent them from proper judicial review? 2) does the Board’s decision withstand judgment under customary standard of certiorari review?  They answered each question in turn.

In regards to the issue of deference given to the municipality’s decision, the Court stated that it was appropriate.  In this case, the ordinance was unique and did not closely resemble a state statute.  In these instances, the Court feels the local government is more attuned to local matters and therefore should be given more weight to its judgments.  The Court also refused to apply to the town’s decision the level of deference that it uses when reviewing state administrative agency’s decisions .

The Court also stated that the Board’s interpretation of the law was correct and withstands review.  It noted that the language in the ordinance required one to show that the land is capable of producing $6000 of annual income.  The word “show” suggests that an applicant must provide some proof beyond speculation of the land’s income-producing abilities.  The Ottmans failed to do this.  It also stated that this interpretation furthers the land use regulation’s goal of promoting the preservation of agricultural land and is therefore justified.  The Supreme Court affirmed the decision of the court of appeals.

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Wisconsin landowner not permitted to contest presumption of highway ROW width

Gary Taylor

by Melanie Thwing

Joyce Affeldt, et. al. v. Green Lake County
(Wisconsin Court of Appeals, July 28, 2010)

Since the 1920’s, the Affeldts have owned, and resided in two farms in Green Lake County, Wisconsin. Highway B runs along the property line of these farms, a highway that has existed and has been maintained by the County for more than 20 years. In 2008, the county scheduled a project to increase Highway B to the full right-of-way width of four rods (sixty-six feet). During this time, all property owners along the line of the Highway were allowed to discuss the project. All approved except the Affeldts.  The Affeldts repeatedly notified the County that the fence line and trees that were on the Affeldts’ property were not in the right-of-way and could not be removed.  The Affeldts claimed that any removal, cutting, damaging, or destroying of the fence line or trees on the property would violate their rights as landowners.

The Affeldts, in Circuit Court, filed a temporary restraining order and permanent injunction, arguing if the project continued it would be an, “unconstitutional taking of their property without compensation.” The County countered that because Highway B is a public highway, and that they had the authority to maintain it, it can be increased to the standard of a full sixty-six feet. During this discussion a land surveyor was brought to the Court and testified that Highway B has been a major road way since the 1800’s, and that “the best determination” of the right-of-way was four rods, because the ‘ancient fences’ were inconsistent with a three-rod road.” The trial court ultimately ruled for the continuation of the project on Highway B, stating that if every property owner had a different fence line, the highway system would end in chaos.

The Affeldts then appealed to the Court of Appeals. The question under review was whether Highway B constituted a recorded highway, which if it did, would allow for a four-rod right-of-way. 

 Wis. Stat. § 82.50(1) defines a recorded highway as:
A highway for which the order laying out or altering the highway… has been recorded in the office of the register of deeds in the county in which the highway is situated or, for highways that were laid out or altered before January 1, 2005, in the office of the clerk of the town or the county in which the highway is situated.

Using this standard, the Court of Appeals refers to County Resolution No. 38, passed in 1939, which states the exact location of Highway B and certifies it as a recorded highway.

The Affeldts nevertheless contended that Wis. Stat. § 82.31(2) creates rebuttable presumption of a four-rod right of way.  The Court of Appeals agreed that Wis. Stat. § 82.31(2) creates rebuttable presumption of a four-rod right of way, but pointed out that that code provision addressed unrecorded highways only.  Given that Highway B is a recorded highway, the Affeldts have no ground to rebut the presumption of a four-rod wide road that § 82.50(1) provides. The Court of Appeals affirmed the decision of the circuit court.

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