NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

COUNTY OF SHOSHONE OF THE STATE OF IDAHO, Plaintiff - Appellant, And GEORGE E. STEPHENSON and NEW JERSEY MINING COMPANY, Plaintiffs,

v. UNITED STATES OF AMERICA; et al., Defendants - Appellees. No. 13-35078 D.C. No. 2:09-cv-00505-REB

MEMORANDUM *

Appeal from the United States District Court for the District of Idaho Ronald E. Bush, Magistrate Judge, Presiding Argued and Submitted October 7, 2014 Seattle, Washington Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges. 

# FILED

OCT 31 2014 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.The County of Shoshone (Shoshone) appeals from the district court’s judgment, on cross motions for summary judgment, in favor of the United States and against Shoshone on Shoshone’s cha llenge under the Quiet Title Act of 1972 (“QTA”) to the United States’ closure of f our miles of the Eagle Creek Road in the Idaho Panhandle National Forest. Shoshone’s case turns on a single esoteric issue: whether Eagle Creek Road is a public road based on at least five years of regular public use sometime between 1884 and 1893. The United States, while agreeing with the merits of the district court judgm ent, asserts that Shoshone failed to file its action within the twelve year statute of limitations in 28 U.S.C. § 2409a, and therefore the courts lack jurisdiction to consider Shoshone’s claim. We conclude that we have jurisdiction and affirm th e district court’s rejection of Shoshone’s QTA claim. 1 1. 28 U.S.C. § 2409a(g) provides that a civil action under the QTA “shall be barred unless it is commenced within tw elve years of the date upon which it accrued” and that “[s]uch ac tion shall be deemed to have accrued on the date the plaintiff . . . knew or should have known of the claim of the United States.” We have recognized that the QTA’s lim itations period is jurisdictional, see Kingman

1 Because the parties are familiar with the facts and procedural history, we do not restate them here except as necessary to explain our decision. 2Reef Atoll Invs., L.L.C. v. United States , 541 F.3d 1189, 1195 (9th Cir. 2008), and have noted that “notice of a government claim that creates even a cloud on that title [to disputed property] may be sufficient to trigger the limitations period.” Michel v. United States , 65 F.3d 130, 132 (9th Cir. 1995). However, we have been careful to require that the government’s claim be cl early adverse to the claimant’s interest. Id .; see also McFarland v. Norton , 425 F.3d 724, 727 (9th Cir. 2005). We have noted that otherwise, “a claimant of a ri ght of access would be forced to bring suit within twelve years even though the government gave no indication that it contested the claimant’s right.” Michel , 65 F.3d at 132. Here, the United States asserts th at the Watershed Environmental Assessment that issued in April 1997, or its supplement that issued in July 1997, placed Shoshone on notice of the United Stat es’ adverse claim. It contends that Shoshone’s action, which was filed just short of twelve years after the Forest Service’s October 1997 decision on the Eagle Creek Restoration Project, is therefore untimely. We conclude that this action was timel y filed, using the Forest Service’s 1997 final decision. An environmental a ssessment is not a decisional document. Rather, its purpose is to help the government and the public evaluate a proposed agency action. The government is notbound to follow any alleged assertion or

3course of actions proposed in the envi ronmental assessment. Furthermore, we have not found any court decision holdi ng that an environmental assessment commences the running of the QTA’s statut e of limitations. We decline to hold that Shoshone’s action is untimely. 2. In 1866, Congress enacted an open-ended grant of a right-of-way for the construction of highways over public lands, which is commonly referred to as “R.S. 2477.” Act of July 25, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed byFederal Land Policy and Management Act of 1976, Pub. L. No. 94-579 § 706(a), 90 Stat. 2743. Many of the transportation routes in the West were established under R.S. 2477. S. Utah Wilderness Alliance v. Bureau of Land Mgmt. , 425 F.3d 735, 740-41 (10th Cir. 2005). Moreover, the Supreme Court has stated that “Congress intended the QTA to provide the exclusive means by which adverse claimants could cha llenge the United States’ title to real property.” Block v. N. D. ex rel. Bd. of Univ. & Sch. Lands , 461 U.S. 273, 286 (1983). Although federal law governs the in terpretation of R.S. 2477, “in determining what is required for acceptance of a right of way under the statute, federal law ‘borrows’ from long-established principles of state law, to the extent that state law provides convenient and appropriate principles for effectuating

4congressional intent.” S. Utah Wilderness Alliance , 425 F.3d at 768. We agree with the district court and the partie s that here we “borrow” Idaho law. The Idaho Supreme Court in Galli v. Idaho County , 191 P.3d 233 (Idaho 2008), held that pursuant to the applicab le Idaho law, Rev. St. Idaho Terr. §§ 850- 851 (1887), the creation of a highway over public land required that “a road, street, alley or bridge” be “erected or laid outby the public, and [be] used for a period of five years.” Id. at 238. The court further held that the “use must be regular public use and not casual or desultory.” Id . at 237, citing Kirk v. Schultz , 191 P.2d 266, 268 (1941). In Kirk , the Idaho Supreme Court concluded that prior to 1901, “the use by the public of the trail was insufficient, being only casually and desultorily and not regularly used.” 119 P.2d at 268. Similarly in Galli , the Idaho Supreme Court Idaho found “that evidence is not substantial and competent to support a finding that Race Creek Road was used by the public for a period of five years prior to 1904.” 191 P.3d at 238. See also Sopatyk v. Lemhi County , 264 P.3d 916. 921-22 (Idaho 2011) (applying the same standard but finding that the road in question existed in 1881). The historic facts underlying this case are undisputed. The district court noted:

5In 1883, in the quintessential rush following the discovery of gold near Prichard Creek (a tributary to the North Fork of the Coeur d’Alene River), the mining camp of Eagle City was thrown down in the area where Eagle Creek joins Prichard Creek. The location was near the first placer claims, and took advantage of one of the few “flats” found in the otherwise heavily timbered and steep countryside.” Much of the “rush” to Eagle City took place in the fall and winter of 1883 and into the early months of 1884, when entrepreneurs in Belknap, Montana, (located on the Northern Pacific Railroad’s main line) sought ways to take a merchant’s profit from the eager gold seekers headed fo r the Eagle Creek district. The businessmen set about trying to build the most direct route from Belknap, Montana, to Eagle City. However, by spring 1885, nearby Murray, Idaho, supplanted Eagle City as the center of mining activity in the area. A new road shortened the distance between Belknap and Murray by approximately six miles and altogether avoided Eagle City. The district court determined that th e “ambition” for Eagle Creek Road was never realized and within three or fouryears it was just a trail; “[e]ven the telegraph line strung next to the Belknap Tr ail as it was being constructed had been long abandoned.” The district court conc luded that, after the frenzy, “the great stampede to Eagle Creek collapsed upon its elf like the banks of snow dissolving into the spring freshet.” Shoshone does not deny the meteoric rise and fall of Eagle City, but argues that the mining activities and explorations of the “tenacious old-timers who hung

6on after the exodus in 1884 . . . reflects activity that is anything but casual or desultory.” Shoshone argues that, as a matter of state law, the circumstantial evidence compels a finding of regular public use. We do not read Idaho case law to compel a finding of regular public use in this case. In Sopatyk , 264 P.3d at 921-22, the only case in which the court upheld a right-of-way, there was substantially more evidence of use than exists for Eagle Creek Road. Rather, the amount of circ umstantial evidence in this case is more akin to the amount of evidence in Galli , 191 P.3d at 238, where the Idaho Supreme Court rejected a right-of-way claim. We c onclude that the district court reasonably determined that Idaho law’s application to the circumstantial evidence in this case did not compel recognition of Shoshone’s claim. Shoshone’s appeal is reduced to challenging the district court’s factual findings on the cross-motions for summary judgment. We review for clear error “the trial court’s ultimate findings of f act, which were based on inferences made from the undisputed written record.” EEOC v. Maricopa Cnty. Cmty. Coll. Dist. , 736 F.2d 510, 512-13 (9th Cir. 1984). Under this standard, a finding can be set aside only if “illogical, implausible, or without support in inferences that may be drawn from the record.” United States v. Hinkson , 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc). Here, the district cour t’s thorough review of the circumstantial

7evidence cannot fairly be ch aracterized as illogical, implausible, or lacking support from the record. The district court’s judgment for the United States is AFFIRMED

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