FILED

United States Court of Appeals

Tenth Circuit

December 13, 2019

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

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.

PIONEER CANAL-LAKE HATTIE

IRRIGATION DISTRICT,

Defendant-Appellee.

No. 18-8024

(D.C. No. 2:16-CV-00086-SWS)

(D. Wyo.)

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* This order and judgment is not binding precedent except under the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-ofway.

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1 The Act was repealed in 1976, but the law repealing the Act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 THIRD NEW INTERNATIONAL

DICTIONARY (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-ofway’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 threequarters 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 eightfoot 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

1

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.

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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.

2

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.

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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 rightof-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

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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-ofway 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

33