concerns the scope and extent of the federal right of way for a reservoir the scituate on federal lands near laramie wyoming the defendant there geisha district contends that the scope and extent of its right of way should be the physical limitations of the reservoir itself however the statue at issue in this case the act of eight hundred ninety one it's regulations one hundred years of case law and the defendant's predecessors in interest own statements unambiguous lee make clear that the right of way grant is based exclusively on a map that submitted to and approved by the department of the the riginal map was approved by the department of the interior in one thousand and eleven section one teen of the activating ninety one which is forty three u s c section nine four seven states that if you want a right of way under this act you have to file a map with the government and you don't get it right away until it's approved and the statute says that the same show be noted on the plants and set off as and there are after all such lands over which such rights away shall pass shall be subject to the right of way the intention of congress could not have been more clear you only get a right of way for what is on the map and what is approved by the department of the interior that the banchory of the reservoir should be definitively fixed and described is absolutely required as a prerequisite to approval of the map only through approval of a map does the public have definite notice of the boundaries of the rights of way for purposes of settlement of the public lands the activating ninety one was inactive one hundred twenty seven years ago there is not a single case state federal or ministre to the hold that the scope of the right of way is anything other than what was approved by the department of the interior in this case in one thousand no nine the defendant's predecessor submitted a map and filled out for approval that map has a definitive boundary in line for the scope of the reservoir its field notes delineate the exact meets abounds description of the boundary of that reservoir the department of the interior review the map approve the map and put that legal description on its own books and classes for members of the public to review if they're seeking to make use of the public lands for settlement or any other use that's permitted the statutes from the eighteen hundreds that require that allow for uses and improvements of the public lands are almost all identical almost all of them required a map a survey and field notes before any use or occupation of the public lands would be permitted doesn't matter if it's a ditch  a reservoir road or railroad that's why my brief is so full of so many cases about railroads because a supreme court is taking a lot of effort to deal with a red rose in the eighteen hundreds in the early one nine hundred the statutes are more in this case we attempted to depose members of the bureau of land management to get their opinion on the issue and as you may or may not be aware that's a lot more difficult than it should be but the bill and wrote a letter that's in the record that says specifically says that he went out and he did that and we know he did that because he found monuments on the ground that he attributed to the one thousand nine hundred nine thirty day he found stakes on the ground thing he did was locate the reservoir that was his instructions and that's what is still most confirmed that he did and he did that consistent with the math they were on that well going to the question what congress finally says i have some trouble with this fifty feet argument and the fact that supposedly it would only be fifty feet if you need it when congress and section eighteen pretty explicitly says and fifty feet on each side of the margin limits there of which would seem to suggest well it's not the jets it was say if you get a lot of fifty feet without any shy of necessity section eighteen also says your honor provided however that no such right of way shall be located and tell all maps of location are subject to the approval of the department of the government having jurisdiction we've interpreted section eighteen to say yes you're absolutely right the default position is that you can get fifty feet but that is subject to government approval of the maps that you've submitted and in this case the map that was submitted to the department of the interior did not ask for nor request an additional fifty feet i'd also submit to the court that this is a reservoir where the outside boundary is not a wall retaining wall or some monument of some kind it's it's just open ground there isn't any knesset the or any reason for the irrigation district needs access to those outside boundaries of the reservoir for construction remains there's nothing to maintain well that begs the question whether they need to show that the i mean when you when i'm looking at this language about ma all it says is a map requirement doesn't say anything about that the fifty feet not being within the scope of what we're talking about here i mean what is that what language you get out of this provided that that would suggest that no such right of way sh so located as it interfere with the proper occupation by the government of any such reservation and all maps of location so be subject to the approval of the government ok and so the government all right so go ahead from there  so my contention would be that such an eighteen says that you don't get a right of way if it interferes with any part of how the government's using the land and the government wants to approve the maps so the government has the discretion to decide whether or not you need fifty feet or something less or none at all i would also submit to the court that the regulations that have been in place since the early one nine hundred have also demanded that an applicant provide an explanation or some sort of necessity in order to receive the additional fifty feet and those regulations were enacted in one thousand nine hundred eight i think and have not been challenged there's not a single case that i could find that suggests those regulations were  assigned the jurisdiction over seen the act the department of interior has also interpreted it's given deference for statutes that it interprets itself and has interpreted the statute to say that it requires a of necessity to get the additional fifty feet the defendant would have you believe that the map in the field notes are inconsequential that they are virtually meaningless that they can build whatever structure they want the damn high whatever they want and that however much land they need to fill in the reservoir is what they should be entitled to receive i would argue on the other hand that the mass in the feel not so the very foundation upon which you achieve a right of way under this particular statute before my time is up i also want to make know about the lots that were subdivided and eventually sold to my clients those lots were not received under the general homestead laws of the eighteen in one thousand nine hundred it's a special statute called small tracks act and that allows individuals to come in and buy a small five acre parcel of land from the federal government but there are requirements and one requirement in the statute itself says the land has to be vacant and  researched public land if it's inundated by the reservoir clearly it's neither vacant or inundated so in one thousand nine hundred eighty nine clearly the federal government did not think that the right of way for the reservoir extended as far as of those blocks the statute also required use and improvement of those laws before you could buy them from the federal government and the regulations that applied to those specific lots demanded  build a house demanded that you build plumbing and have toilet facilities that you have a garbage disposal facilities a whole number of items that are clearly inconsistent with a right to flood that land under water well request to their location rather than whether they have whether they have the duty to provide those and the surveyor for the b l m in one thousand forty nine when he plotted those lots his instructions were and what he did was he made sure those lots were forty feet away from the reservoir boundary and ten vertical feet above it so the federal government went to a great deal of trouble to make sure that those lots were no where near the boundary of the reservoir and were well outside and both experts at trial my expert and irrigation district expert both testified that those locks are in fact forty feet from the boundary of that line and ten vertical feet above it i'd also know that in between the private lots and the reservoir were platted for additional lots for public access to the reservoir those were served were supposed to serve as a buffer between the private lots and the reservoir and provide access for the public they were not to be developed in any way yet there has been no discussion of how or why or under what circumstances the air geishas district feels that they can just simply flood it without seeking permission from the mistake yes your honor earl east that was not approved by the department of the interior those facts come from an application smid it to the state of wyoming for a water right but none of that information had been submitted to the department of the interior and had no bearing whatsoever on determining the boundary of the right of way for the reservoir there is no indication there's no testimony there was no proof whatsoever in this case that any of those documents had ever been submitted to review or approved by the department of the interior and our argument would be anything that wasn't approved or reviewed by the department of interior is irrelevant and determining the scope of the size of the reservoir was a commission to draw the map and heard in the beginning point state of wyoming as proof of my time is up my head to the question it's my understanding that the dam did not exist at the time the map was prepared so everything that was prepared the was an estimate of where they wanted the dam to lie and its high and how much land they thought was going to be encompassed inside the reservoir there was no existing dam at the time the map was prepared but was a variable in that said now that the dam is built and we fill with the full capacity it's exactly as it is on the map that was submitted and approved by the department of interior that was his statement under oath and the statement of the original holding capacity of the will we don't know that the dam has been constructed in reconstructed on more than one occasion and the records going back that far as you can imagine  e not as thorough as we would have liked my time was up thank you thank you i'll address a couple of issues that came up by argument by mr jensen first of all i absolutely disagree with the idea that i've said the map is in consequential that's absolutely not the case and in fact if you look at what judge cal dog did at trial he relied on the map and in fact frankly judge scout dog adopted the plaintiff's theory of the case disregarded mine in large part but judge cal doll found the one issue that judge mckay and judge holmes pointed out is that this is an easement for storage of water and drawing a line on a map gives you a two dimensional aspect many times when you build a reservoir or to store water nor did the b l m survey in one thousand fifty determine that and in fact the instructions that the plaintiffs offered showed that the b l m was supposed to determine the high water line of the lake and they didn't do that judge south don't know this that and that's a real problem are the deficiencies in what the b l m did is that they were required to to go out determine the high water line of the lake and they were supposed to put the balland or ease the northern the boundaries of the cabin lots at least ten feet above that high water line it didn't happen instead they used the present water line of the lake at some unknown elevation we don't know what that elevation was in yet we know that when they retrace the line from one thousand nine hundred nine there were places where that line that they retraced plunged into the water that they were encountering at that time in one nine hundred fifty and there were other places where the line that they retraced clearly went above the water that they encountered on had day and that frankly the reason that the district court denied summary judgment two times to the plaintiff says because there were fat questions that arose from the deficiencies of the b l m survey if if land owners cannot rely on the map then how are they going to go about having any certainty at all in what property they can buy what are they cannot buy great question and i'll show you that my theory of the case and the ruling from the district court gives them that exact certainty what is it is that late can be still to an elevation of seven thousand two hundred seventy seven feet no higher under the theory advanced by the plaintiffs the right of way would have elevations that range from seventy to eighty two which is four feet above the spell we have the lake down to seventy two fifty eight the plaintiff's theory does not give anybody any notice of anything well why doesn't it because the plan theory at least as i understood it depends on the map i mean it may be a wacky map the map may be incomplete but it's a mess and it says this is what this defines your universe go forth and operate on this universe you're reading that notice you're exactly right judge and what judge cowbell this is he says ok the map is important it's critically important i agree but the one thing missing from the map is the elevation of the high water line and there's a couple of things that the point this expert witness ignalina judge is that the wind that mr rosecrans drew on the map in one thousand and nine was a level one meeting it had to be at one elevation and in one hundred fifty when the b l m went back out and tried to retrace that line the level line for nineteen on line any type of body of water and so i agree that the everyone needs certainty but the map by itself shows two dimensions length and width it does not show the elevation of a high water line but if the high water line can will shift then people who are buying property will never have certain events to your point there is a russian so how does one ever know with definiteness that when i buy this property it will never be flooded because i know that this is you know this is the way it's going to be your honor the high water line will never shift it can't it's fixed at the high water line of the lake now in this case  what is shift what has shifted here what is shifted here is that because of erosion there are places where the bank has eroded away and this deposited sediment in one part of the lake and washed away lands in the other the map by itself doesn't answer all the questions it's clear that under the statute the land that the easement is to store water and if you don't figure out what's the third asking a variable in that is how much water can be stored that the point is the statute once the map this x by the government it's irrelevant i mean the it may be a lousy map it may be a bad map a why doesn't the statute by its plain terms make the math determinative then if we ever have to wonder you look at the land decisions that have follow from that which seem to have made the math determin all use the pointers theory amber light upon them out the one thing he found wanting but which the plaintiff's own expert says was important to know is what was the intended high water elevation without that that's not on the map and that's an i your your the theory makes total sense to me and i understand why the high watermark would would give certainty but the ma confused like judge holmes as to why the map doesn't control just as the statute says it does even if common sense would say the should all be controlled by the elevation by the high water mark the statute shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective states or territories by definition the statute takes account of the fact that it is meant to be a three dimensional body of water it's right it's right in the statutes and if you if you're going to give the statue effect you have to give effect all parts of the statute i think we can agree with that  that actually gets drawn doesn't indicate the three dimensional aspects of it could it have it couldn't have indicated somehow the that the elevation mark is the high water mark and that's how it's going to be determined from perfectly and the only way that the court could determine whether or not there had been a trespasser took place was to determine what the intended elevation was of that line the pla it was full of mistakes they didn't determine the high water line of the lake they didn't follow the b l m manual that said for a non navigable body of water such as lake at the reservoir you are to determine the you are to treat the matter the line on the map as a in the was clear state and federal army and air line is not the balance hurry it shows the the waterline at one point in time and the supreme court in eight hundred ninety one same year as the statute in question said quote it has been decided again and again that the meander line is not a boundary but that the body of water whose margin is meander is the true boundary mitchell  snail eight hundred ninety one and so the b l m surveyors that created the cabin lots didn't follow their own manual that said you must go look at state law to determine the res boundary they didn't do it not only that they use the present water line at some unknown elevation and if they would have determined the high water line we wouldn't be here today because that high water line is seventy two seventy eight still way of the reservoir seventy two seventy eight and by definition the lake can't hold more than that it spills out of the lake the real problem is that  l m didn't accomplish its own goals when it said about creating the caravan lights built on the shore of lake and the plain reality is that the patent to the point of properties make it clear that their title this subject three things one was a right to rights to do chiz and reservoirs and three a right of way for reservoirs is expressing reserved the patent that's provided to the plaintiffs it's in there it's in their title erode away forever was a right of way for a reservoir and that brings us back to the question of what is the determining factor as perhaps what i'm saying is that if it's subject to the right away and the right of way is determined by the map then the map would not allow for this flooding that is taking place with it well i have to disagree that any flooding has taken place my client has never ever stored more water in the reservoir than the high water line it just hasn't happened it can't happen and answer the question i believe somebody said as the configuration of the height of the reservoir never change the evidence at trial from the plaintiff only witness himself no the spillway is never change judge to have the all asked my expert has the elevation ever changed no there's no evidence of that it's undisputed and and i'll note that at the conclusion of trial judge kept all asked us to submit we could submit more evidence after trial we submitted is today the reality is that the reservoir was built it was built to a certain elevation that's right reservoirs are built and if you look at all of the regulations concerning the map all of them that are side even judge scale da sites then it says that a line that is drawn on the map is is in fact the high water line of the lake when it says so judge cal dahl had no way to rule on the case until he determined what that particular elevation was i argued an alternative theory that wyoming law says that the high water but the one thing that he had to do was to supply the elevation without that he could not determine whether a crash pad had taken place and so that's what he did here's their evidence from their