The Bureau of Land Management’s California Staff Needs a Legal Education Concerning the Proposed Cadiz Valley Water Conservation, Recovery & Storage Project

On October 2, 2015, the California State Office of the U.S. Department of Interior, Bureau of Land Management (the “BLM”), issued an “administrative determination” letter (the “October 2nd Letter”).  In it, the BLM opined that the proposed Cadiz Water Project in San Bernardino County (“Cadiz”) may not locate a water conveyance within a willing railroad’s 200′ wide federally-granted right of way unless the proponents first apply to the BLM for further study and federal permission. In doing so, the BLM mishandled the legal test that applies to the Cadiz project’s proposed use of the railroad right of way.

By way of background, Cadiz proposes to build a pipeline within a federally-granted railroad right of way to transport much-needed groundwater from its Mojave Desert source to the nearby Colorado Aqueduct for use elsewhere in Southern California.   The question is whether Cadiz and/or its railroad partner need to obtain the BLM’s permission before proceeding with their plans use of the railroad right of way.  The BLM, in the October 2nd Letter, concluded that the project’s proponents must secure the BLM’s formal permission to proceed, which would impose a significant delay for the agency study and decide the matter.

The BLM’s unfavorable conclusion is based on a series of legal errors explained below.  They are:  First, the BLM “conflated the disjunctive.”  Second, the BLM failed to apply properly the “incidental use doctrine.”  Third, the BLM failed to “construe liberally” the congressional purpose of railroad rights of way, which is to accommodate any and all activities that are in whole or in part for the utility or convenience of railroad operations.  If the BLM were to revisit its determination with a proper grasp of the applicable legal principles, then the BLM’s decision will be reversed, and the Cadiz proposal may proceed without any need for the BLM’s approval.

Concerning “conflating the disjunctive,” the basic legal test that governs whether the proposed use of the railroad right of way requires the BLM’s permission is whether the proposed project “derives from or furthers” the railroad’s purposes; and—if it does, then no permission from the BLM is needed.  Home on the Range v. AT&T Corp. (D. Ind. 2005) 386 F.Supp.2d 999, 1024.  The BLM mishandled its application of this legal test.  Rather than considering each of two alternatives disjunctively (i.e., looking first at whether the activity derived from railroad purposes and then separately at whether it furthers railroad purposes), the BLM created a new test—something akin to the federal courts’ sliding scale test for providing injunctive relief—in which the question of whether the proposed use “furthers” railroad operations was considered only conjunctively with consideration of whether the activity is “derived from” the railroad’s operations (which it was not).

The BLM’s reasoning thus transmuted the word “or” (in the derived from or furthers test) into “including.”   By doing so, the BLM elevated the disjunctive “derives from” consideration to the status of be all and end all, and exercised unsound reasoning of the same type that the Supreme Court of the United States castigated in Loughrin v. United States (2014) 134 S. Ct. 2384, 2390:

To read the next clause, following the word [“]or[”], as somehow repeating that [first] requirement, even while using different words, is to disregard what [“]or[”] customarily means.  As we have recognized, that term’s ordinary use is almost always disjunctive, that is, the words it connects are to be given separate meanings. Yet [defendant] would have us construe the two entirely distinct statutory phrases that the word [“]or[”] joins as containing an identical element.  And in doing so, his interpretation would make § 1344’s second clause a mere subset of its first….  [Defendant’s] construction thus effectively reads [“]or[”] to mean [“]including[”], a definition foreign to any dictionary we know of.

In other words, the BLM conflated two inquiries—merging together into one analysis its consideration of both the “derives from” question and the “furthers” question.  Under proper legal standards, however, these two inquiries must instead be undertaken separately.  See Azure v. Morton, 514 F.2d 897, 900 (9th Cir. 1975) (“As a general rule, the use of a disjunctive [“or”] … indicates alternatives and requires that they be treated separately.”).  The BLM must therefore reconsider the question of whether the project “furthers” the railroad’s purposes separate and apart from any consideration of whether the project was “derived from” the railroad’s purposes.

Once the disjunctive considerations are separated, the sole dispositive question becomes whether the proposed Cadiz project furthers the railroad’s operations—given that everyone concedes that the project does not derive from them.  To answer this particular question, the BLM should have applied the “incidental use doctrine.”  In 2011, the Solicitor for the Department of Interior explained the incidental use doctrine as it applies to any federal railroad right of way granted pursuant to congressional legislation enacted in 1875—and thus to the Cadiz project’s proposed right of way use.

Specifically, the incidental use doctrine was explained in Opinion M-37025, dated November 4, 2011 (the “2011 Opinion”).  The 2011 Opinion explains that the BLM’s permission must be sought for any proposed new activity within a railroad right of way only if there is no benefit whatsoever therefrom inuring to railroad operations.  For example, footnote 19 of the 2011 Opinion explains that a telegraph line may not be placed on a railroad right of way without the BLM’s further permission if it were “entirely disconnected from [the railroad’s] business.”  (Emphasis added.)  See 2011 Opinion at p 8, n. 19, quoting W. Union Tel. Co. v. Nashville, C. & St. L. Ry. Co., 237 S.W. 64, 89 (Tenn. 1921) (emphasis added); see also id. at p. 9, n. 21 (the right of way easement does not include right to install electric-power transmission line “unconnected with the operation of the railroad” (emphasis added)).

The 2011 Opinion’s ultimate legal conclusion is:   “Within an 1875 [Act railroad right of way], a railroad’s authority … does not permit a railroad to authorize activities that bear no relationship to the construction or operation of a railroad.”  2011 Opinion, at p. 2 (emphasis added).  In this context: “‘No’ means ‘not any.’”  United Food and Commercial Workers Union, Local 1119, AFL-CIO v. United Markets, Inc. (9th Cir. 1986), 784 F.2d 1413, 1415 (quoting Webster’s Third International Dictionary 1532 (16th ed. 1971)).  Therefore, pursuant to the incidental use doctrine, the presence of any relationship to actual railroad operations is enough to avoid the need to obtain the BLM’s permission to use the railroad right of way.

And while the 2011 clarified the proper legal test, it also pointedly reaffirmed the validity (using the corrected legal reasoning) of an earlier, anecdotal ruling that found that even a relatively minimal and very small incidental benefit to railroad operations was sufficient to justify automatically the use of the railroad’s right of way by a commercial operator without requesting permission from the BLM.   Specifically, although the Solicitor corrected the legal reasoning for doing so, it reaffirmed that the incidental railroad utilization of only a few fiber optic strands from an large fiber-optic “trunk line” installed within the length of the railroad right of was sufficient to allow the trunk line installation to constitute a proper use of the railroad’s right of way easement which required no submission for the BLM’s approval.  See the 2011 Opinion, at p. 12, text and n. 25.

Here, the Cadiz project includes many attributes that will substantially and specifically benefit the railroad operations, including providing both (i) remote, automated fire suppression to the railroad’s trestle bridges, and (ii) electrical power generating functions each specifically benefiting the railroad operations (and each owing to Cadiz transporting water along the right of way), plus (iii) the construction and maintenance of a co-beneficial access road alongside the rails.  Therefore, the incidental use doctrine certainly applies to allow the proposed project to proceed unimpeded by any need to seek the BLM’s permission.

The BLM also overlooked settled law that requires that the congressional purposes of a railroad’s right of way grant must be “liberally construed.”  Leo Sheep Co. v. United States (1979) 440 U.S. 668, 683; see also the 2011 Opinion at 3, 7.   A liberal construction of the purpose behind Congress’s grant of the railroads’ rights of way should lead the BLM to recognize that Congress intended to grant railroads the permission within the right of way for any and all activities that are in any way necessary or convenient to railroad operations.   See Marathon Oil Co. v. Federal Energy Comm. (1976) 547 F.2d 1140, 1142 n.6 (discussing “the usual rule of implied power to do whatever is necessary or convenient in the execution of express powers”) (emphasis added).

The BLM instead more strictly construed Congress’s 1875 right of way grant, applying the same construction that applies to, for example, state-delegated municipal powers.   Cf. Detroit Citizens’ St. Ry. Co. v. City of Detroit (6th Cir. 1894) 6 F. 628, 639 (emphasis added):

We entirely agree with the rule which requires a strict construction of the powers of municipal corporations, ‘and that such [municipal] corporations can exercise only those powers which are either granted by express words, or those necessarily or fairly implied in or incident to the powers expressly granted, or those essential to the … purposes of the corporation, not simply convenient, but indispensable.’ 1 Dill.Mun.Corp. § 55.

In addition to its mishandling various elements of the legal test, the BLM apparently lacks the expertise and good judgment to counter the railroad’s views concerning the latter’s operations and the conveniences that the Cadiz project promises.  Ample proof is reflected in the BLM’s stated reasoning for demanding that the Cadiz project apply formally to the BLM for permission before proceeding.  For example, in the October 2nd Letter, the BLM absurdly concluded that an unmanned, automated fire suppression system installed to protect creosote-treated wooden trestles crossing remote desert ravines would not be superior to fighting such fires by throwing sand on them.   See October 2nd Letter and attached summary evaluation at p. 4 (“Use of water for fire suppression on [remote desert] creosote-treated timber [trestle bridges] is an uncommon industry practice, with [smothering fires with] dry sand being the preferred method, and thus water-based sprinklers and hydrants … do not … further a railroad purpose.”).   One must ask:  Can anyone honestly imagine firefighters arriving, throwing sand at a burning trestle bridge spanning a remote desert ravine, and being grateful for the fact that no automated fire sprinkler system is in place?

Finally, the incidental use doctrine should be applied liberally for a practical reason.  Concerning Cadiz, uses and improvements are proposed to be located within a federally granted right of way which is already burdened by ongoing railroad operations—and will be indefinitely.   The additional burden on the right of way is hardly any skin off the nose of the 200′ wide servient tenement.  See Macy Elevator, Inc. v. United States (2011) 97 Fed. Cl. 708, 730:

[W]here a utility lays line or pipe next to an operating rail line…, the owner of the underlying fee could hardly be said to have taken on a different or heightened burden because of the additional use where rail use is ongoing.

Therefore, appreciation of both the incidental use doctrine and the requirement to construe liberally the purposes of the right of way grant should merge with a practical appreciation of the fact that the right of way will hardly be burdened any further than it already is by the ongoing railroad operations.   When combined, this should lead any objective observer to conclude that the Cadiz project is both sufficiently beneficial and convenient to the railroad operations and practically innocuous—as Cadiz’s proponents claim.  Thus, the project should be allowed to proceed without the demanded federal review.  If the BLM persists in its error, however, the Cadiz project proponents will likely be delayed by the undeserved, albeit prudential need to have a federal court to educate the BLM concerning the law.