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Grays Lake Administrative Naviablity Bureau of Land Management

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					             Grays Lake Administrative

             Navigability Determination

                        And

        Omitted Lands and Avulsion Decisions




                                    For

                       U.S. Fish and Wildlife Service

                            911 NE 11th Avenue

                         Portland, Oregon 97232


                                    and

                         Bureau of Indian Affairs
                        Northwest Regional Office
                          911 NE 11th Avenue
                         Portland, Oregon 97232




                                    By

                              Mark Smirnov

                            Cadastral Surveyor

                            Idaho State Office

                       Bureau of Land Management

                           1387 S Vinnell Way

                           Boise, Idaho 83709


                             August 15, 2011



1   Grays Lake Study
Table of Contents


  I.        Introduction..................................................................................................................3

  II.       Land Status...................................................................................................................6

  III.      Question Presented ......................................................................................................7

  IV.       Short Answers ..............................................................................................................8

  V.        Records Research, Individual Interviews, and Site Visits .....................................10

  VI.       Background ................................................................................................................11

            A. Terrain....................................................................................................................11

            B. Animal Life and Vegetation ..................................................................................15

            C. Human Occupation ................................................................................................17

            D. Early Descriptions of the Area...............................................................................20

            E. Water Rights ..........................................................................................................22

            F. Conflicts.................................................................................................................22

  VII.      Surveys ........................................................................................................................27

  VIII. Navigability Legal Discussion ...................................................................................43

            A. Used For or Susceptible For Use ..........................................................................45

            B. In Its Ordinary Condition ......................................................................................46

            C. Highway For Commerce (Trade and Travel) On Water .......................................47

            D. At the Date of Statehood........................................................................................47

  IX.       Original Meanders .....................................................................................................49

            A. Previous Navigability Determinations or Failure to Determine ............................52

            B. Omitted Lands or an Avulsion...............................................................................64

  X.        Evidence Affecting the Navigability Elements ........................................................70

            A. Used For or Susceptible For Use ...........................................................................70

                 1. Non-Navigable - United States v. Oregon, 295 U.S. 1 (1935) .......................72

                 2. Navigable - United States v. Holt State Bank, 270 U. S. 49 (1926) ...............78

                 3. Grays Lake Susceptibility for Use as a Highway of Commerce .....................81

            B. In Its Ordinary Condition ......................................................................................87

            C. For Commerce (Trade and Travel) On Water .......................................................95

            D. At the Date of Statehood........................................................................................95

  XI.       Conclusions.................................................................................................................96

  XII.      Resource Bibliography ..............................................................................................99




        2   Grays Lake Study
I.     Introduction


Grays Lake is a bulrush marsh in southeast Idaho, in Bonneville and Caribou Counties. It is
situated in a remote, sparsely populated high altitude valley which valley also contains wet
meadows, brush and grasslands, and lesser amounts of open water and scattered willows and
aspen. The valley and marsh provide nesting and living habitat for waterfowl and cranes as well
as other bird and animal species.


In 1965, the U.S. Fish and Wildlife Service and less than two dozen private landowners entered
into a 99 year Cooperative Use Agreement for a portion of the private interests in the bed of
Grays Lake. The original Grays Lake National Wildlife Refuge boundary encompassed the
middle 13,000 acres of the approximately 22,000 acres of Grays Lake bounded by a one half
mile wide buffer inside the original General Land Office meander line. In 1972, the refuge
boundary was expanded to almost 33,000 acres, including the original 13,000 acres, the buffer
and additional land beyond the original meander line. This expansion allows for purchase and
condemnation of additional lands for Refuge purposes. The expanded boundary now
encompasses the entire marsh, as well as some adjoining upland.


Grays Lake also serves as a storage reservoir for the Ft. Hall Irrigation Project. A 1964
Memorandum of Understanding between the Bureau of Indian Affairs (BIA) and the Bureau of
Sport Fisheries and Wildlife (subsequently the U.S. Fish and Wildlife Service) regulates water
surface levels. The BIA also signed the 1965 Cooperative Use Agreement


The question is whether the agreement should have included the State of Idaho if the marsh is a
navigable body of water. The rights to the beds of navigable bodies of water were reserved to
new states if those water bodies satisfy certain requirements, which requirements are listed in the
United States Supreme court case, The Daniel Ball:


       Those rivers must be regarded as public navigable rivers in law, which are navigable in
       fact. And they are navigable in fact when they are used, or are susceptible of being used,
       in their ordinary condition, as highways for commerce, over which trade and travel are or

      3   Grays Lake Study
        may be conducted in the customary modes of trade and travel on water.” The Daniel
        Ball, 77 U.S. 557 (1870)


This study gathered information regarding those navigability elements. It resulted from meetings
in the spring of 2010 between the Bureau of Land Management, Idaho State office, with the U.S.
Fish and Wildlife Service, Northwest Regional office, and representatives from the Boise
Solicitors office where the outline of the study process and funding was adopted. The BIA
subsequently co-funded the study. The report is based on historical records and scientific papers
research, field investigations including survey data collection and interviews with local long time
residents. Records research included various southeast Idaho offices including libraries, U.S.
Forest Service records, State archives, Idaho state agencies, BLM, Ft. Hall Irrigation project
archives, museums, internet review, and other sources. The report was then peer reviewed by the
Bureau of Land Management (BLM) Idaho Cadastral survey program, the BLM Alaska State
office navigability section, and the Boise Solicitor’s Office.


The report is broken down into numerous sections where reference to the Table of Contents may
help the reader understand the flow. Following is a synopsis of the main categories and how the
report is structured.


Introduction: This provides an Executive Summary of the report.


Land Status: A diagram of the ownership pattern surrounding the refuge.


Questions Presented: Whether Grays Lake is navigable or not and whether there are omitted
lands. Historically, the question of navigability, when addressed in previous reports, was never
decided and was always one of multiple issues.


Short Answers: One page of conclusions to the Questions presented.


Background: This describes the terrain, animal life, population history, and the types of
commerce in the area. While this seems to be an interesting but not germane discussion of the

      4    Grays Lake Study
area, it needs to be included because there is no history of commerce on the lake and the
“susceptibility for use for commerce” argument for navigability needs to be investigated.


Surveys: Idaho statehood is July 3, 1890, and conditions at that date determine whether a lake
has been or is susceptible for use for commerce. There are no aerial photographs from that date
and map coverage for this remote part of the state is minimal so historical accounts of conditions
from settlers and the original and later surveys often is the best narrative of what the water body
looked like and how it was used. The two later surveys, early 1900’s, help verify the original
GLO surveys.


Navigability Legal Discussion: This identifies the elements of navigability. The legal quotes,
while long, were not paraphrased to avoid misinterpretation. Evidence is not applied in this
section; the section only describes what to look for in the field and records research. A later
section then applies the evidence found to these elements.


Original Meanders: This is a combined section explaining how meander lines are run, the legal
concept behind them, and a discussion of omitted lands.


Evidence Affecting the Navigability Elements: At this point, the personal recollections, on the
ground conditions, records research results, etc., are applied to the legal elements to prove or
disprove navigability.


Conclusions: What the report determined.


In summary, the report finds there is no history of commerce on the lake, muskrat trapping
notwithstanding. Furthermore, the ground conditions at Grays Lake before and after statehood,
1890, are such that Grays Lake is not and has not been susceptible for use for commerce.
Furthermore, there are no omitted lands nor has an in-lake avulsion occurred.




      5   Grays Lake Study
II.      Land Status
The land status surrounding Grays Lake is a mixture of ownership. Ownership includes private
patented lands, lands previously patented and then sold back to the federal government (U.S.
Fish and Wildlife interests), a state water right to store water on the bed of Grays Lake held by
the Bureau of Indian Affairs, Indian country that is not within the current boundaries of Ft. Hall
Indian Reservation but was reserved as part of the Ft. Hall Irrigation Project (for example, Bear
and Bishop Island), and some BLM, U.S. Forest Service and State administered lands located
near but not necessarily immediately adjacent to the original meander lines of the lake.




Figure 1 BLM GIS map of land ownership or interests in Grays Lake area. The irregular black line represents the
original General Land Office meander lines with the rectangular lines the township and section lines:

         1. F&WS is a bluish green color. It includes the original 1965 13,000 acres plus the 1972 expansion. The half
         mile wide buffer, in a greenish-yellow, is between the black original meanders and the red lines which bound the
         original 13,000 acre refuge and mark the location of designed dikes and ditches.

         2. USFS is lighter green,

         3. BLM is yellow,

         4. Indian country is peach,

         5. State is blue, and

         6. Private lands are white.



       6    Grays Lake Study
III.      Questions Addressed in this Study

       1.	 Is Grays Lake a navigable water body wherein the title to the bed resides in the State of
          Idaho?


       2.	 Is Grays Lake a non-navigable water body wherein the title to the bed of the water body
          belongs to the upland owners as an incidence of riparian rights?


       3.	 Is Grays Lake an improperly meandered feature wherein the title to the land inside the
          original meander line remains public domain under a theory of omitted lands or
          alternatively has an in-lake avulsion occurred?




         7   Grays Lake Study
IV.      Short Answers


      1.	 Grays Lake is non-navigable and as such is not land reserved to the State of Idaho under
         the equal footing doctrine. There is no history of actual use or even a susceptibility of
         use of open waters inside the ordinary high water mark (the meander lines) since the date
         of statehood, July 3, 1890, for commercial purposes. What little open water that does
         exist has been used for trapping muskrats and waterfowl nesting with no transportation of
         goods and service from point A to point B. Rather, historical evidence indicates that the
         lake is and has been surrounded by a road network providing transportation of supplies to
         the ranchers and mining camps in the area since the early 1870’s rather than any form of
         surface water transportation.


      2.	 The area within the original meanders lines was properly meandered by the original
         General Land Office surveyors, John B. David, and J.R. Glover. Therefore, the upland
         owners own their proportionate share of the non-navigable bed except around Bishop and
         Bear Islands where the pie slices are truncated due to Indian interests.


      3.	 Because the original surveyors properly meandered Grays Lake, there are no omitted
         lands (omitted lands occur when the original surveyors misidentified or misreported the
         line of ordinary high water when running their meanders). Since the valley floor is so flat
         and the lake so shallow, a slight difference in the water surface elevation causes large
         changes in the horizontal position of the edge of the water. Additionally, the dense mass
         of bulrushes does not allow wave action that normally would create obvious banks at the
         ordinary high water mark.


         The study looked for changes in the surface elevation due to construction of Clark’s Cut,
         drainage ditches, and other artificial changes. The review compared vegetation transition
         zones, grazing and haying practices within the lakebed, and other indications of actual
         land inside the meanders. Slightly changed conditions, since statehood, due to the use of
         the lake for water storage and grazing and haying around the perimeter made determining
         original conditions difficult. A comparison of the original surveys, later but still early

        8   Grays Lake Study
resurveys, and current field conditions and aerial imagery concludes that while the
original surveyors were confronted with a difficult choice in deciding whether to even
meander the lake, their choice to do so as well as what physical features to use for finding
the ordinary high water line, was reasonable. This precludes a federal claim of omitted
lands to the bed of the lake inside the original meander lines. Furthermore, since current
conditions, i.e., field measurements for elevation and location, vegetation lines from
aerial imagery, etc., match record conditions from just prior to Statehood, there is no in-
lake avulsion.




9   Grays Lake Study
V.         Records Research, Individual Interviews, and Site Visits


       1.	 Idaho Department of Lands to review their Grays Lake files, with the assistance of
           Steven Shuster, Deputy Attorney General,
       2.	 Idaho Department of Water Resources, with the assistance of Craig Saxton,
       3.	 Albertson Library at Boise State University,
       4.	 Idaho State Archives,
       5.	 Soda Springs Library,
       6.	 The National Oregon/California Trail Center in Montpelier,
       7.	 Montpelier Ranger District Office for the Caribou-Targhee National Forest,
       8.	 Headquarters for Grays Lake National Wildlife Refuge, with the assistance of Bill Smith
           and Mike Fisher,
       9.	 Grays Lake residents Ruth Shea,1 J.C. Smith, and Eliza Lei Call Sibbett,
       10. BLM Pocatello Field Office to review their Grays Lake files, with the assistance of Candi
           Aguirre,
       11. BIA Ft. Hall Agency office, with the assistance of Sam Hernandez,
       12. Ft. Hall Irrigation Project office,2
       13. BLM survey records,
       14. Field visits to Grays Lake, and
       15. Internet sites.3




1
 In particular, Ruth Shea has been a tremendous source of varied background information plus provided copies of
documents and maps used in this report.
2
 Mike Broce, BLM cadastral surveyor, assisted in records review with both the BIA Ft. Hall area office and the Ft.
Hall Irrigation Project office. He also provided field assistance at the Grays Lake area to include providing field
elevations of gaging stations and current meanders.
3
    The internet provided substantial background information utilized in this report.


        10     Grays Lake Study
VI.      Background


A brief discussion of the natural features, history, and settlement is necessary for an
understanding of the varied issues encountered during this navigability study. Throughout the
records review, interviews, reports, etc., it immediately became obvious that issues of water
rights, navigability, Indian irrigation rights, and refuge purposes for waterfowl and crane habitat
were intertwined by water, as the common denominator. Typically, reports, interviews, books,
web information contained information about several of the issues so the process was to separate
out the navigability information from the other interesting by not germane information.


                                                     Terrain


Grays Lake4 is a montane marsh5 located in
southeastern Idaho, in Bonneville and Caribou
counties, 50 air miles east northeasterly of
Pocatello. The marsh encompasses
approximately 22,000 acres with an additional
10,000 acres of wet meadows and upland.
Within the marsh itself are numerous open
potholes with the majority of the open water,
approximately 1,000 acres, found in the
northerly and southeasterly corners of the
marsh. Base elevation of the valley is                     Figure 2 2007 Google Earth imagery
approximately 6400 feet elevation with the
Caribou range to the north and east (Caribou mountain is the highest at 9803 feet elevation),
Grays Range on the south and Little Valley Hills on the west. One source reports that based on
radio carbon dating of the peat bed, the present day marsh most likely developed in the last 4,000

4
 Throughout this report, Grays Lake will alternately be referred to as a marsh or as a lake. This is dependent on
how the label is used. Marsh is more descriptive but lake is the typical usage for navigability discussions.
5
 Montane refers to the biogeographic location below subalpine terrain characterized by cooler and moister
conditions than adjoining areas and with distinct plant and animal species.


      11    Grays Lake Study
years.6 Another source reports that marsh formation accelerated approximately 8,000 years ago.7
The bed of the marsh “consists of laminated and banded clayey silt overlain by several metres of
peat.”8 In either case, the marsh has been in place centuries before statehood.9




             Figure 3 National Resources Conservation Service report for Grays Lake Area. The rectangle box across the
             middle of the page and just above Bear Island indicates the bed is comprised of Outlet Silty Clay Loam.



6
    Butler and Anderson, Final Report, Class I Cultural Inventory, July, 1981, p. 4.
7
 Jane M. Beiswenger, Late Quaternary Vegetational History of Grays Lake, Idaho, Ecological Monographs, 61(2),
1991, p. 180.

           The available data suggest that the vegetation around Grays Lake was a cold, dry, Artemisia steppe during early
           Pinedale time (approx. 70,000-30,000 yr BP). The climate remained cold, but precipitation was sufficient for a conifer
           woodland of Pinus, Picea, and Abies with abundant Artemisia during late Pinedale time (30,000-11,500 yr BP).
           Conifers probably also occupied protected sites in the ravines and valleys of the nearby mountains. The vegetation of
           the basin quickly responded to climatic warming, which produced cool, moist conditions between approx. 11,500 and
           10,200 yr BP when populations of Picea, Artemisia, and other taxa expanded. This climate persisted until 10,000 yr BP
           when more xeric conditions stimulated the growth of Juniperus, Artemisia, Chenopodiaceae/Amaranthaceae,
           Sarcobatus, and Gramineae. Rising temperatures and continued aridity resulted in a xeric maximum approx. 8,200 yr
           BP. This trend accelerated marsh development. Warm, arid conditions persisted until approx. 7,100 yr BP when
           cooling favored Pinus and other conifers. Cooling has continued and become more severe from approx. 2,000 yr BP
           until the present time. (emphasis added).

8
 Jane M. Beiswenger, Late Quaternary Vegetational History of Grays Lake, Idaho, Ecological Monographs, 61(2),
1991, p. 168.
9
 Another early scientific description, observed shortly after construction of the 1924 Clark’s Cut and irrigation
headgates on the northerly and southerly drainages from the marsh, can be found in the notes from a June 10, 1929,
biological survey by Charles C. Sperry and A.C. Martin, U.S. Biological Survey. From the Summary of the notes:

           “Gray’s Lake is not a lake at all but a great marsh, covered with from few inches to 2-3 feet of water…. At
           the south end of the lake a 500-ac expanse of water is dotted with little marsh islands. While small ponds
           and open channels are frequent long either shore. The interior of the lake is a broad and almost unbroken
           expanse of the big bulrush.” http://www.npwrc.usgs.gov/projects/grayslk/histacct.htm.


        12     Grays Lake Study
                                           The drainage into Grays Lake encompasses nearly 100 square
                                           miles with the major inflow creeks being Clark, Willow,
                                           Eagle, Bridge, and Gravel Creeks. The natural outlet, Grays
                                           Lake Outlet,10 is at the northwesterly end of the marsh,
                                           draining into Willow Creek and continuing to the Snake
                                           River. On the southwesterly end of the marsh, an artificial
                                           cut, Clark’s Cut, was made through a low ridge, and
                                           completed in 1924, with water first entering Meadow11 Creek
                                           on June 14 of that year.12 This secondary outlet diverts a
                                           portion of Grays Lake marsh into Blackfoot Reservoir via that
Figure 4 1915 U.S.G.S. 1:125,000           creek. Both outlets are controlled with water released under a
quadrangle from BLM Pocatello Field
Office Realty files. Grays Lake is shown   schedule agreed to by the agencies and private parties around
as a marsh.
Grays Lake. The schedule is managed by the Bureau of Indian Affairs and the Ft. Hall Irrigation
Project and is shown on the next page.




Figure 5 May 15, 1924, Clark’s Cut photo from the 1924 Engle Report, U.S. Indian Irrigation Service, District 2, Annual
Report, June 30, 1924, copy in the Ft. Hall Irrigation Project vault.

10
  Referred to as Bear Creek by J.R. Glover, the original surveyor who surveyed this township in 1885. General
Land Office Field Notes for T. 4 S., R. 43 E., 1885.
11
  December 20, 1927, James Young report states the water from Grays Lake travels through Clark’s Cut for ¾ mile,
to a natural draw for half a mile, then into Sheep Creek for 1-1/4 miles before merging with Meadow Creek.
12
     1924 Engle report, p. 167.

        13     Grays Lake Study
From Jane E. Austin et al, Evaluation of Management Practices in Wetland Meadows at Grays
Lake national Wildlife Refuge, Idaho, 1997-2000, p. 12:


        During spring, the lake level is high enough to flood the surrounding wet meadows. The
        lake is typically drawn down starting approximately 10 May to an elevation of 6386.0 ft
        by 24 June, and maintained at or near that level during the summer months, leaving only
        the deep marsh habitat with standing water. At the lowers levels (6384.8), most of the
        lake basin is dry but water remains by the North Outlet and Beavertail control structures,
        in drainage canals, and in a few deeper natural ponds or openings. Only in very wet
        years is the summer water level at Grays Lake maintained such that standing water is
        available in the margins between wet meadows and deep marsh habitats.


This drawdown schedule was negotiated between the Indians, U.S. Fish and Wildlife and the
local landowners to maintain water elevation during nesting, provide for a controlled release to
reduce transpiration and evaporation of the standing water, and allow for hay growth between
high water levels in the spring and low water during the fall. One question reviewed was
whether this schedule is similar enough to natural conditions that no in-place avulsion occurred
resulting in fixed ownership boundaries based on the original or later meander lines:13
          Date                              Elevation (as measured at Beavertail Point)
January to May 9                            as natural conditions dictate
May 10                                      6387.4
May 20                                      6387.0
June 1                                      6386.7
June 10                                     6386.5
June 20                                     6386.3
June 25 to December 31                      as natural conditions dictate


13
  Memorandum of Agreement between Bureau of Indian Affairs Department of the Interior and Bureau of Sport
Fisheries and Wildlife Department of the Interior Relating to the Use of Lands and Waters at Grays Lake located in
Bonneville and Caribou Counties Idaho, October 8, 1964, signed by the Commissioner of Fish and Wildlife,
Clarence F. Pautzke, Deputy Commissioner of Indian Affairs, John O. Crow, and Secretary of the Interior, Stewart
L. Udall. (note: This drawdown schedule is also in other documents, e.g., a Memorandum Legality of Bureau of
Indian Affairs’ Permittee Control Over Lands Near Grays Lake National Wildlife Refuge, and Effect of Proposed
Deepening of Portion of Grays Lake, from the Regional Solicitor to the Regional Director, FWS, Portland, received
by the BLM on Aug 6, 1981. The Solicitor’s memorandum also includes a single day, June 26, as having an
elevation of 6386.0.


     14     Grays Lake Study
Finally, because of subsurface springs, the denseness of the bulrush mat, and inflow on the east
side of the marsh, the elevation of the water surface varies across the lake.14


                                           Animal Life and Vegetation


                                                                                The predominant marsh
                                                                                vegetation is bulrush or tules,
                                                                                with willows along the edges and
                                                                                sagebrush and grass on the better
                                                                                drained slopes. Quaking aspen,
                                                                                Douglas Fir, and other conifers
                                                                                are at higher elevations. Some
                                                                                grain crop have been raised in the
                                                                                valley, i.e., barley, wheat, and
                                                                                oats, with abundant forage for
                                                                                livestock, usually grasses,
Figure 6 Clusters of willows are found around the perimeter of the lake.       sedges, rushes, and forbes.15
Some believe they sprouted from willows branches set to mark crane nests
or muskrat traps. Picture taken September 28, 2010, on the Eastside Road.      Historically, wild hay has been
harvested and stacked or grazed in the fall.16 There is a possibility that in the past bison wintered
over because of the available forage in the valley.




14
 Joseph Ball et al, Population and Nesting Ecology of Sandhill Cranes at Grays Lake, Idaho, 1997-2000, U.S.
Geological Survey, Montana Cooperative Wildlife Research Unit, Missoula Montana, February 2003, p. 76.
15
     Grays Lake Exploratory Lease Application, p. 3
16
     From the 1924 Engle report, pgs. 160-161:

           Immediately adjacent to, or bordering the lake, is a belt of land of varying width, lying approximately
           between the maximum seasonal high water line and the average low water line, which forms a natural
           meadow of native grasses, and from which hay is cut. There the land bordering the lake is very flat, as in
           some places, especially in the vicinity of the north and south end of the lake, this belt of land that is
           ordinarily inundated for several weeks in the early summer, and from which the water recedes during the
           latter part of the summer, so that the grass can be cut for hay, is of considerable width and extent. [Note:
           The description continues with comments about high and low water years causing a variation in the
           production of the hay but averaging about a ton per acre.]


        15    Grays Lake Study
Figure 7 September 27, 2010 image looking southeasterly and taken near the West Side Road at the southwest quadrant
of the lake. Towards the top right corner is Beavertail Point, a ridge extending into the marsh around which the Lander
Trail carried settlers. The top potholes in the upper left center are typical of the limited open water seen within the
meander line.




Figure 8 From the same location looking easterly towards Caribou Mountain with Bear Island the darker low ridge at
the far end of the great expanse of marsh.




     16     Grays Lake Study
Figure 9 From the same location, looking towards the northerly end of the lake. In the forefront is Shorty's cabin and
shed. He was an early settler and according to J.C. Smith, who has lived in the valley since 1948, was dead before J.C.
moved here. Also according to J.C., the two ponds in the center of the picture were fish raising ponds in which Shorty
raised fish for his Asian wife who preferred fish to sheep or beef. Fish are not found in Grays Lake/marsh.

Livestock and sheep raising has been an important industry in the valley. Additionally, the
marsh is home to numerous forms of wildlife, including muskrats (the trapping of which was an
economically important industry in the past), waterfowl and cranes, and various upland species
of big game including moose, elk, and deer. In the past, bison ranged the area with the bison
gone by 1860.17 As many as 30 recovered bison skeletons have been found in the bed of the
marsh near potholes.18


                                                Human Occupation


Indians have occupied southeastern Idaho for millennium with an estimated earliest date of
10,500 B.C. near Blackfoot Reservoir and with the discovery of a chipped stone point near



17
     Caribou History, p. 9. A bound unattributed manuscript in the Idaho section of the Soda Springs Library.
18
  Personal Interview on September 28, 2010, with J.C. Smith. Mr. Smith and his wife Vera have been residents of
the valley since 1948. He has recovered up to ten skulls on his portion of the bed, the area up to one half mile
inside the original meander line, three bison skulls off the east end of Bear Island, in the 1960’s, and believes that
with his and the reported finding by others, as many as 30 skeletons have been found.


        17     Grays Lake Study
Clark's Cut.19 The earliest western influence began with the fur trappers trade. The records are
somewhat contradictory as to names and dates but one explanation is that John Grey (Gray), a
half breed Iroquois and for whom the marsh is named, traveled with Donald McKenzie, a partner
of John Jacob Astor of the Pacific Fur Company, and was in the area of Grays Lake in 1817.20
Another source reports that the first trappers came through in 1811-12.21 One of the earliest
recorded references to Grays Lake was by Osborn Russell in his book Journal of a Trapper.22 In
1839, he deposited furs at Grays Marsh and went to the Salt River to obtain a supply of salt.23
Then in 1840, about March 22, he camped at Grays Marsh in 3 feet of snow. The next day they
killed ten buffalo and then returned to the Marsh on the 2nd of May and found the streams
overflowing their banks running into the marsh.24


Trapping continued with the first settlement in the valley in 1870.25 The mining activity in the
valley, more specifically on the easterly and northerly portion of the valley around Caribou
Mountain was quite extensive. Beginning in 1870, four separate mining towns were established,
Carriboo26 City, Keenan City, Gray, and Herman. The major rush of gold mining was in the

19
     Butler and Anderson, pps. 7-8.
20
  While Gray may never have seen the marsh itself, he did see the northwesterly outlet to the marsh, which was
called Grays Creek for a period of time. Butler and Anderson, p. 14.
21
     Caribou History, p. 1.
22
  Osborn Russell, Journal of a Trapper or Nine Years Residence among the Rocky Mountains Between the years of
1834 and 1843 Comprising A general description of the country, climate, Rivers, Lakes, Mountains, etc. The nature
and habits of Animals, Manners and Customs of Indians and a Complete view of the life led by a Hunter in those
Regions. Published versions available from multiple sources, this internet source came from:
http://www.xmission.com/~drudy/mtman/html/ruslintr.html.
23
     Osborn Russell, p. 30.
24
     Osborn Russell, pgs. 33-34.
25
     Caribou History, p. 46.

           The first settler in the Grays Lake basin was a man by the name of Garber who established a ranch along
           the shore of Grays Lake on Willow Creek, in 1870. He kept a few cattle and horses but made his living
           principally selling fish, caught in the small streams, to the miners in Caribou Basin.

           In 1879, James Sibbett, David Robinson, Gideon Murphy, Wm. C. Simmons, and H.B. Simmons settled at
           Grays Lake.
26
  The spelling of Cariboo comes from a local, Jessie Fairchild, who hunted caribou in Canada. His spelling was
adopted by others in the area and it was not until the Caribou National Forest that the spelling was changed. Lula

        18     Grays Lake Study
1880’s and ended in the 1890’s with an estimated 50 million dollars of gold recovered and a total
population in the towns approaching two and half thousand people.27


In addition to the influx of people from mining, the basin was a major travel route between
Wyoming and central Idaho as part of the Lander Road.28 Salt works on Stump Creek in the
Caribou Range to the east of Grays Lake eventually reached a peak production of a million
pounds a year in 1879 with the salt shipped to gold mines in Montana and Idaho and as far west
as Boise. The portion of the Lander Cut-off running from the Salt works to Idaho Falls, past the
south end of Grays Lake and around Beavertail Point, was sometimes referred to as the Salt
Road. Large herds of cattle were also driven easterly from the northwest to railroad stations in
Wyoming. This stock trail ran over the Salt Road to Grays Lake and followed the Lander Cut­
off road to Wyoming.29


There is no record evidence of transportation of cattle, hay, or supplies to the cities by raft,
ferries, or paddlewheelers. Rather, supplies were by road, wagon train, or on the hoof.30




Barnard, Faunda Bybee, and Lola Walker, Tosoiba, Daughters of Utah Pioneers, Camp Mead, Soda Springs Idaho,
1984, pgs. 113-114.
27
 Tosoiba, pgs. 113-115 and Paul Karl Link and E. Chilton Phoenix, Rocks, Rails, and Trails, Idaho State
University Press, 1994, pgs. 84-85.
28
  The Lander Road was a federally funded improved portion of the Oregon Trail providing better forage, wood, and
water than other trails for travel to the Pacific Northwest. Dawn Ballou, Lander Cutoff Road of the Oregon Trail,
2005, http://www.pinedaleonline.com/news/2005/04/LanderCutoffRoadofth.htm .
29
     Butler and Anderson, pps 19-20.
30
  Two October 5, 2010, e-mails from Ruth Shea relating information she found in the book The Mountain Carriboo
by Ellen Carney. Starting on page 112, the book describes how the roads around the lake were used for freight
hauling, stagecoach service, mail delivery and general use from 1871 on. Winschell’s freight company, a major
carrier, hauled supplies to the mines, including a sawmill.

        19    Grays Lake Study
Today the valley’s economy is ranching, i.e., cattle, sheep and hay production, and the refuge.




Figure 10 1980's era aerial photograph showing fences as light colored lines. Obtained from the F&WS headquarters
office at the refuge.



                                      Early Descriptions of the Area


The original survey plats of the townships surrounding meandered Grays Lake (called John 

Day’s Lake on the original 1875 and 1885 General Land Office township plats) show named 


     20     Grays Lake Study
roads, e.g., Soda Springs and Caribou Road and Lander Cutoff Road. The Lander Cutoff was a
federally funded portion of the Oregon Trail that passed around the southern portion of Grays
Lake, completed in 1860. The Soda Springs and Caribou Road provided a route for supplies to
the mining camps around Caribou Mountain.31


On page 18 of Butler and Anderson’s report is the daily entry from an Oregon Trail emigrant, a
Mr. Charles Cummings who passed by Grays Lake on July 26, 1859. His entry for that day
(with his spelling errors), in part, says:


        We nooned [probably at Beavertail Point] by a large pond [John Grey’s Lake] which is at
        the head of a valey. I should think the pond was somewhere between 2 & 5 miles across.
        It is hard to tell. I would not like to say, eny how. Flags and rushes grow at the edge of
        the pond & at places extend some distance. It is full of ducks and I saw 3 swans. Shot at
        them several times but was to(o) far off. In the afternoon the rode kept around the pond
        for 4 or 5 miles, then followed up a ravine & went over the hill….


Butler and Anderson, pg. 22, continue with this from an 1877 geological survey of the Teton
Division where the geologist Orestes St. John reported Grays Lake as a “shallow lake of
uncertain or variable extent, according to the season, its borders being occupied by extensive
levels of marsh, margined by fields of tule, and treacherous bog.”32



31
  Caribou City had a population of around 1500 people in the mid 1880’s. Mining activities recovered an
estimated 50 million dollars of gold from the mines in the area. Tosoiba, pps. 113-114. Also from McCoy Creek
Watershed Analysis, Caribou – Targhee National Forest, Soda Springs Ranger District, 2007, Chapter 1, p. 19 of 30:

        Gold mining in this area began around 1870 with the discovery of placer gold. This quickly brought people
        into the area with the thought of “striking it rich.” There were numerous mining claims in the “Mount
        Pisgah” (later known as the Caribou) Mining District and several small cities that sprung up in the area
        from the early 1870’s until the early 1900’s. Caribou City (also known as Carriboo City, for Jessie
        “Carriboo Jack” Fairchild) and Keenan City were the two largest cities in the area. These towns included
        stores, saloons, post offices, stables, miner’s cabins, and several other businesses associated with mining
        camps. In the summer of 1885, most of Caribou City burned and was never rebuilt. (Johnson and Carney,
        1990)
32
  Orestes St. John, “Report of the Geological Fieldwork of the Teton Division,” 11th Annual Report of the U.S.
Geological and Geographical Survey of the Territories, embracing Idaho and Wyoming, being a report of progress
for the year 1877, pps. 323-508. Washington D.C.


     21     Grays Lake Study
                                                   Water Rights


Grays Lake has been utilized as a storage reservoir for water since the 1920’s. The original
applicant, Barzilla Clark33 filed on and received a permit for water storage in Grays Lake from
the State of Idaho in 1906, which permit was soon purchased by the federal government for
purposes of the Ft. Hall Irrigation project. At one point, there was some talk of diverting water
from Tincup Creek, to the east, to provide more inflow to Grays Lake. This new inflow would
thence flow through Clark’s Cut to provide more water for Blackfoot Reservoir as part of the Ft.
Hall Irrigation project.


                                                      Conflicts


As previously mentioned, there are numerous issues in direct conflict with each other.
The following list highlights the major players and their foremost desires and concerns. Several
of these issues will be discussed later in greater detail.

33
     http://www.lib.uidaho.edu/special-collections/Manuscripts/mg022.htm has this:

           Barzilla Worth Clark was born in Hadley, Indiana, December 22, 1881. He was the son of Joseph Addison
           and Eunice (Hadley) Clark who were among the Hoosier state's Quaker settlers. In 1885, the Clarks arrived
           in Eagle Rock--now called Idaho Falls--having made the trip from Indiana via narrow gauge railroad. In
           addition to attending public schools in Idaho Falls, Barzilla returned to Indiana where he attended Rose
           Polytechnic Institute in Terre Haute. When ill health forced him to cut short his education, he returned to
           Idaho and engaged in farming, mining and cattle raising.

           In 1905, he married Ethel S. Peck, of Idaho Falls. They had four children, 3 daughters and a son. He early
           became interested in conservation and the development of natural resources, particularly irrigation and
           hydroelectric projects. His reservoir at the headwaters of the Blackfoot River was later purchased by the
           government and his plan for impounding Lost River was merged into the Mackay dam.

           After serving two terms as councilman, he was elected mayor of Idaho Falls in 1913. During this term the
           city built the municipal hydroelectric plant no. 1, located just below the Broadway Bridge. Following a
           period of interest in central Idaho mines, he was again elected mayor in 1927 and continued in that office
           until he was inaugurated as governor of Idaho in January 1937. At the expiration of his single term as
           governor in 1939 he returned to Idaho Falls and the development of his personal interests there.

His early studies of engineering led to his plans for the irrigation project at Grays Lake. In fact, his plans were
essentially adopted by the federal government in the Ft. Hall Irrigation Project, as it relates to Grays Lake. He was
only in his mid-twenties when he proceeded with his plans for the lake and eventually sold his State water rights to
the federal government.


        22    Grays Lake Study
    1.	 Ranchers: Feel they have a right to their proportionate share of the bed of Grays Lake as
         an incident of their upland ownership. Historically they have grazed their sheep and
         cattle beyond the limits of the original meander lines out into bed and have also harvested
         the hay in the bed, stacking it for winter use. The local landowners entered into a 99 year
         lease with the U.S. Fish and Wildlife for a refuge on a portion of the bed, approximately
         13,000 acres of the 22,000 acre bed, referred to as the hole in a donut. The leased area
         was buffered by a strip of marsh about one half mile wide between the original meander
         line and the 13,000 acre area.




Figure 11 The green area is the half-mile wide buffer between the original meander line and an agreed to leased area
between F&WS and the private landowners. Map obtained from the refuge headquarters, among other sources.

     23     Grays Lake Study
Figure 12 Method of stacking hay using a rake, before the advent of stackwagons and bailers.




Figure 13 This is the photo referred to as the "Valley of the Haystacks" provided by Mike Sibbetts, family member of
one of the oldest if not oldest families in the valley (pre 1900). Appears to be taken from the northeasterly end of the lake
looking southerly. Reference is often made, by the locals to how haystacks were stored out in the lakebed on higher, i.e.,
1-2 foot higher, bumps in the bed and then fenced to keep cattle away from them until used.

    2. The U.S. Fish and Wildlife Service has an ongoing refuge in place for an important and
         unique ecosystem providing habitat for various forms of waterfowl, cranes, and other

      24     Grays Lake Study
        wildlife. They need to know who owns the bed so that the leases, purchases, or
        agreements are made with the proper party or parties.


     3.	 The Bureau of Indian Affairs has fiduciary trust responsibilities to the Shoshone-Bannock
        Tribes on the Ft. Hall Indian Reservation. This responsibility includes managing the Ft.
        Hall Irrigation Project.


     4.	 The refuge is prime bird and animal habitat and thus attracts many individuals and groups
        holding an environmental slant on management activities.


     5.	 Water rights are fully appropriated and thus of critical importance for management by
        reducing transpiration and evaporation and proper allocation downstream. The transbasin
        transfer of water through Clark’s Cut has been an issue. Balancing the needs of the
        wildfowl with the ranchers has resulted in a drawdown schedule utilizing the headgates
        on the northerly and southwesterly outlets to the lake. However, the lake does go dry
        depending on the snowfall and precipitation from the previous year. Arguably, according
        to some, this is due to an excessive drawdown, resulting in a loss of nesting sites, and a
        reduction in the muskrat population due to the remaining water completely freezing
        during the winter thus removing the muskrat habitat.

     6.	 Possible geothermal energy production has raised concerns about waste water entering
        the marsh causing an increased temperature in the lake and with a negative effect on the
        habitat.34

     7.	 State of Idaho: The State has a mixed opinion on whether Grays Lake is navigable (at
        least in part) or nonnavigable. Idaho Department of Lands, Operations Memorandum
        1700 “Navigable Waters in Idaho,” effective date May 1, 2003, does not list Grays Lake

34
 McCoy Creek Watershed Analysis, Caribou – Targhee National Forest, Soda Springs Ranger District, 2007,
Chapter 1, p. 25 of 30.

        A potential for geothermal energy exists throughout the entire Southeast Idaho region, due to a relatively
        close proximity to Yellowstone National Park. Currently there are no geothermal leases and/or lease
        applications in the study area. A map from the Idaho Department of Water Resources shows a low-
        temperature (65-85 degrees F) geothermal source in Gray, Idaho, and three high temperature (>120 degrees
        F) sources just outside the northern and southern boundaries of the study area. (IDWR, 2003b)

      25   Grays Lake Study
 as a navigable body of water. Contrast this to the 2000 Department of Lands Grays Lake
 Navigability study that concludes that portions of the lake are navigable although over all
 there is no use for commerce and the bed likely belongs to the upland owners. The
 study’s conclusion that portions of the lake are navigable is repeated in letters from the
 Attorney General’s office to various federal officers.




26   Grays Lake Study
VII.    Surveys


The majority of the lands surrounding Grays Lake were originally surveyed by J.R. Glover from
August 7 to October 24, 1885, under contract No. 111. He surveyed these four townships along
the lake:
        T. 3 S. R. 43 E., from September 7 to September 23, 1885,
        T. 4 S. R. 42 E., from August 7 to August 24, 1885,
        T. 4 S. R. 43 E., from September 25 to October 7, 1885, and
        T. 5 S. R. 43 E., from October 9 to October 24, 1885.
The remaining township along the lake was surveyed by John B. David under contract No. 65:
        T. 5 S. R. 42 E. from October 1 to October 12, 1875.


Glover’s surveys were conducted during the period of time the Instructions of the Commissioner
of the General Land Office to the Surveyors General of the United States Relative to the Survey
of the Public Lands and Private Lands Claims, Washington D.C., May 3, 1881, were in effect.
John B. David operated under the Instructions to the Surveyors General of the United States
Relating to Their Duties and to the Field Operations of Deputy Surveyors, Washington D.C.,
1864. Both of these sets of Instructions required the meandering35 of navigable rivers and lakes
but not smaller lakes that are shallow, subject to being drained, or likely to dry up.


Other features of topography were reported in the field notes and on the plats. Human features,
if any, included roads, existing structures, fence lines, canals, and natural features, such as
changes in vegetation, hills, and minerals were also noted.




35
  Meandering is the process of approximating the actual boundary, which is the line of ordinary high water of a
body of water, by a series of courses forming a traverse along the edge of the water. These courses, with their
reported bearings and distances, allowed the draftsman to show the water body on the plat.

       27   Grays Lake Study
Figure 14 1885 J. R. Glover survey. The Caribou and Soda Springs Road runs to the mining camps. Road to Caribou is
now called Eastside Rd.




Figure 15 1885 J.R. Glover survey.


     28     Grays Lake Study
Figure 16 1885 Glover survey. The Caribou and Soda Springs Rd shown here is now referred to as Westside Rd.




Figure 17 1875 John B. David survey. See next image for a blow up of 2009 conditions at Pelican Slough, another feature
meandered by John B. David, in 1875, when he meandered Grays Lake.


     29     Grays Lake Study
Figure 18 A blowup of Pelican Slough shown on the David plat. Meadow Creek flows southerly through the almost dry
bed although there is some open water on the northeasterly and northwesterly edges of the feature.




Figure 19 Eastside Road is the Road to Caribou. Beavertail Point, a commonly referred to local geographic feature, is a
low ridge extending into the marsh, on the south end of the lake.




     30     Grays Lake Study
Following are two pictures of a natural depression utilized to carry the flow from Clark’s Cut to
Sheep Creek, then to Meadow Creek, eventually ending in Blackfoot Reservoir. Taken on
September 28, 2010, where Westside Road crosses the depression.




Figure 20 Upstream.




Figure 21 Downstream.




     31    Grays Lake Study
Figure 22 Photo taken September 29, 2010 from the viewing turnaround on top of the ridge at the Refuge Headquarters
looking southwesterly. The field below the road transitions to marsh at the right center of the image, the darker
vegetation. Open water is visible around Beavertail Point.

The requirement to meander navigable water bodies can result in a small stream being
meandered, if it is tidally influenced. This is common along coastal waters with small streams
flowing into the ocean. The meanders will be run to the point of tidal influence and then may
stop. A much larger stream may not be navigable if it is shallow and subject to many sandbars,
e.g., the San Juan River in southern Utah. The San Juan was meandered because it formed a
portion of the north boundary of the Navajo Reservation and because it was three chains wide
(approximately 200 feet) or wider. For lakes, the surveyors again had to decide if the lake was
large enough to warrant segregating out the water covered acreage or if there was evidence of
commerce on the lake, thus navigable, which then required the lake to be meandered regardless
of size. In both cases, these decisions to survey or not to survey were sometimes subjective calls.
Since their surveyors were paid by the mile of line they surveyed, their meanders were paid for.
Therefore, there was little incentive to avoid meandering a feature. In addition, given the
importance of identifying sources of water in the West, it is not surprising that such a large
feature, i.e., Grays Lake, was identified by meandering even if it was more of a marsh than a
lake. A similar argument can be made for Pelican Slough, image shown several pages above,
which is a much smaller feature, less than a single section in size (not even three percent the size
of Grays Lake) that was also meandered.


The rationale for segregating out the beds of rivers or lakes that were considered navigable is
because the bed belonged to the already existing state or was reserved for the future state

     32     Grays Lake Study
wherein the survey was made. For non-navigable but large rivers or lakes, the acreage of the bed
of the water body was segregated from the upland entered upon by the entryman. The idea was
to not penalize the settler, i.e., charge against the allowed acreage in the various entry programs,
for land that was not farmable. Typical entry programs allowed 80, 160, or 320 acres for the
settler to claim when they entered upon on, improved, and ultimately received patent to the land.
So if 20 acres were under water the settler would be charged for acreage they could not use. By
meandering the water body, that water acreage was excluded from the patent acreage.


Segregating water bodies resulted in the formation of government lots or the remainder of a 40
acre aliquot part less the area under water. The line of demarcation between farmable land and
land too wet to farm, with a crop of the region, is what the surveyors attempted to approximate
with their meanders. The process of meandering and their legal basis is discussed in greater
                                                                        depth below. Suffice it to say that the
                                                                        normal process is to look for the line
                                                                        between upland and aquatic vegetation
                                                                        at which point there usually is a bank.
                                                                        This location is known as the line of
                                                                        ordinary high water.36 Unfortunately,
                                                                        there is little evidence of banks around
                                                                        Grays Lake, only the vegetation
                                                                        transition zones. As a rule of thumb,
                                                                        ordinary high water is about where
                                                                        you would stand if you were fishing
Figure 23 Photo from the State Department of Lands files on Grays
Lake, taken October 2000, according to the folder. This is a typical    and did not want to get your feet wet
transition around the lake, from hay in the forefront to bulrushes in
the background with no obvious bank.                                    (after the spring floods have receded).


36
   Jane E. Austin et al, “Effects of Habitat Management Treatments on Plant Community Composition and Biomass
in a Montane Wetland,” joint report from U.S.G.S., E.P.A., and U.S.F.W.S., Wetlands, Vol. 27 No. 3, September
2007. In Figure 2, they show what they call the “Median Spring High” and a lower elevation for the “Annual
Drawdown.” They then conclude that the range between the two elevations is where the Baltic rush grows. The
lower end of the Moist Meadow, considered a crop, is slightly below the Median Spring High elevation. The Baltic
Rush zone, or below where crops can grow, is characterized as elevations that are moist to saturated during growing
seasons. The Moist Meadow zone is only flooded in early spring and not saturated during the summer. This
vegetation change is consistent with the location of the original and subsequent meanders as compared to current
imagery and field meanders run during the summer of 2010, by Cadastral Surveyor Mike Broce.

     33     Grays Lake Study
                                                                                      The surveyors, by their
                                                                                      meandering of Grays Lake
                                                                                      (or John Days Lake, as they
                                                                                      referred to it) created the
                                                                                      riparian government lots
                                                                                      around the perimeter. This
                                                                                      creation of riparian rights in
                                                                                      the upland, and the
                                                                                      simultaneous creation of
                                                                                      rights in the bed, either
                                                                                      proportionately to the
                                                                                      upland owners if the lake is
Figure 24 Another photo from the State's files on Grays Lake, also taken in
October 2000. This is the southwest portion of the lake where a bluff comes down      non-navigable or to the state
to the water. At the bottom of the level rod is the change from no lichen to lichen
growth on the rocks or the upper limits of high water. This distinct line is not      if the lake is navigable, was
available elsewhere around the lake.
                                                                                      the first governmental action
bringing about the issue of navigability.


Two other surveys of note are the 1907 A.P. Adair survey and the 1925 survey by James Young.
The A.P. Adair survey was made for the original storage application to the state by Barzilla
Clark. His survey shows the original 1875 and 1885 meanders (highlighted in yellow) and an
expanded storage line that would come from building a 20 foot high dam on the northerly outlet.
The storage line was run by Adair using levels and is highlighted with the magenta color.
Reference is made to field notes on the face of the plat but neither the Idaho Historical Library,
where the original signature but blue print copy of the plat was found, nor the State Department
of Water Resources, who are the successors to the State Engineer’s records, had copies of the
field notes. This survey was approved by the State Engineer on December 29, 1906.


Adair was a U.S. mineral surveyor who performed surveys for applicants to file for mining
claims on federal lands. As such he was intimately familiar with the public land survey system



     34     Grays Lake Study
and the process of returning surveys acceptable for use by the federal government for land
claims.




Figure 25 1906 Adair survey. Yellow highlighted line is the original meanders. The magenta line is the expected
expanded reservoir. The area around the southwest portion of the lake is where there are banks or bluffs and hence the
lines are close. Similarly, the northeasterly portion of the lake also has some elevation changes. The original map did not
have the added yellow and magenta linework. It was scanned by the Idaho State Archives, a division of the Idaho State
Historical Society and is approximately 3 feet by 6 feet in size.

      35     Grays Lake Study
The other survey plat was made by James Young, in 1925, who was retained by the United
States Indian Irrigation Service for all surveys throughout the Blackfoot River water rights
adjudication study. This plat only covers the portion of his surveys around Grays Lake.




Figure 26 Scanned image obtained from the Refuge headquarters. A hard copy was found at the Ft. Hall Irrigation
Project vault. Young also accepted and platted the original 1875 and 1885 meanders, as had Adair twenty years
previously.


     36     Grays Lake Study
Figure 27 This legend shows both the adjusted record meander locations and Young’s topography control line. The
latter appears to be the location of the edge of the water as he found it during different parts of the season, the end of May
and the beginning of August. His topography control lines follow the original meanders well, sometime above and
sometimes below but generally follow the same features with only a slight difference in location. The following blowups
show portions of his plat in greater detail.




      37     Grays Lake Study
Figure 28 Northeast side of the lake.




Figure 29 There are distinctive peninsulas he shows both with the adjusted original meanders and his new topography
control line.




      38     Grays Lake Study
Figure 30 West side of the lake.

From the 1929 Engle Report, pgs. 7-8:37


           [F]ield work carried on under the direction of Instrumentman James Young whose
           familiarity with, and long acquaintance with the Blackfoot River, lands and water rights,
           were immensely valuable in this work which was expedited to a considerable extent
           because of this [Note: The surveys were partially made for the Department of Justice and
           included information they needed for the water rights adjudication].


           While these surveys were being made, all other phases of storage and conveyance of
           water in the Blackfoot Reservoir, Grays Lake Reservoir, and Blackfoot River channel
           were investigated, studies made, and data obtained for estimates and plans of proposed
           construction necessary for the safe storage and conveyance of Fort Hall Project waters
           without further damage to the lands of private individuals and inconvenience to the
           public, that has resulted from past operation of these water supply features of the Fort
           Hall Project by the Government.


37
     1929 Engle report, Cabinet 7, Drawer C, Ft. Hall Irrigation Project office vault, Gray’s Lake Description.


        39     Grays Lake Study
This same section of the Engle report continues with a discussion about dredging the channel on
the south end of Grays Lake to Clark’s Cut. More importantly, it emphasizes that the intention
of the storage reservoir was to minimize the effect the water impoundment would have on
private interests around the lake. This means the intent was to not overfill the lake but rather
moderate the release so that hay production continued, an attempt to retain the status quo.
Despite this, there were and still are complaints by some that the water drains too low and by
others that it remains too high for too long.




Figure 31 Clark's Cut is the channel flowing southwesterly from the headgate.




     40     Grays Lake Study
Figure 32 Clark's Cut headgate.




Figure 33 Drainage ditch.




     41     Grays Lake Study
Figure 34 Clark's Cut




Figure 35 Rip-rap in the cut.




     42     Grays Lake Study
VIII. Navigability Legal Discussion:


Navigability is a broad term used for jurisdictional, i.e., Clean Water Act (33 U.S.C. § 1251 et
seq) or admiralty purposes and for states’ property rights in the beds of major bodies of water
found in their state. It is this bed ownership property right that is of primary concern for this
study. Because navigability is a legal theory, case law was reviewed for guidance and as
discussed in this section. In a later section, “Evidence Affecting the Navigability Elements,” the
record and field evidence found is then applied to the guidance understood from these cases, as
well as direction from statutory law, the various Manual of Surveying Instructions, regulations
and other legal sources.


Historically, navigable beds were only those beds subject to the ebb and flow of the tides with
ownership in the Crown of England. Among the rights held by the original 13 states was that
they owned the beds and banks of all navigable, that is, tidally influenced waterways, by
substituting their rights for the Crown’s rights. As new states were admitted to the Union, the
federal government conveyed the ownership of the bed and banks in that state to the new state.
The federal government did this to ensure that every state entered the Union with the same rights
as the original thirteen states. This equal footing recognition is found in Pollard's Lessee v.
Hagan, 44 U.S. 212 (1845).38 Idaho has equal footing language in its statehood act.39


However, the United States is a much larger land mass than the United Kingdom, so the courts
have found the Great Lakes, the Mississippi and Missouri Rivers, and other major arteries of
commerce to be navigable, not just those that are tidally influenced. The case repeatedly cited



38
   From the syllabus of this case: “The shores of navigable waters, and the soils under them, were not granted by the
Constitution to the United States, but were reserved to the States respectively, and the new States have the same
rights, sovereignty, and jurisdiction over this subject as the original States.”
39
     Idaho Admission Bill, Act of July 3, 1890, 26 Stat. 215.

           § 1. Idaho admitted to union - Constitution ratified. - The state of Idaho is hereby declared to be a state of
           the United States of America, and is hereby declared admitted into the union on an equal footing with the
           original states in all respects whatever; and that the constitution which the people of Idaho have formed for
           themselves be, and the same is hereby, accepted, ratified, and confirmed.


        43     Grays Lake Study
for the definition of navigable waters, for bed title purposes, is The Daniel Ball, 77 U.S. 10 Wall.
557 (1870). From the decision, page 563:


        The doctrine of the common law as to the navigability of waters has no application in this
        country. Here, the ebb and flow of the tide do not constitute the usual test, as in England,
        or any test at all of the navigability of waters. There, no waters are navigable in fact, or at
        least to any considerable extent, which are not subject to the tide, and from this
        circumstance tidewater and navigable water there signify substantially the same thing.
        But in this country, the case is widely different. Some of our rivers are as navigable for
        many hundreds of miles above as they are below the limits of tidewater, and some of
        them are navigable for great distances by large vessels which are not even affected by the
        tide at any point during their entire length. [footnote 3].40 A different test must therefore
        be applied to determine the navigability of our rivers, and that is found in their navigable
        capacity. Those rivers must be regarded as public navigable rivers in law which are
        navigable in fact. And they are navigable in fact when they are [1] used or are
        susceptible of being used [2] in their ordinary condition as [3] highways for
        commerce over which trade and travel are or may be conducted [4] in the
        customary modes of trade and travel on water. And they constitute navigable waters
        of the United States within the meaning of the acts of Congress, in contradistinction from
        the navigable waters of the states, when they form in their ordinary condition by
        themselves, or by uniting with other waters, a continued highway over which commerce
        is or may be carried on with other states or foreign countries in the customary modes in
        which such commerce is conducted by water. (emphasis and numbers added.)


Summarizing, all tidal waters are navigable as a matter of law. However, since Idaho has no
tidal waters, the navigable-in-fact tests from The Daniel Ball must be weighed before a water
body can be considered navigable, resulting in the bed remaining state land. This study
discusses these four numbered elements below.



40
 citing The Propeller Genesee Chief, 53 U.S. 443 (1851), a previous Supreme Court decision where navigability
was extend beyond the limits of the ebb and flow of the tide.

     44    Grays Lake Study
                                Used For or Susceptible For Use

Economy Light & Power Co v. U.S., 256 U.S. 113, 122. (1921):

       The presence of rapids, waterfalls and sandbars which may require portaging around does
       not preclude navigability because the fact that navigation may be difficult and at places
       interrupted does not render a stream non-navigable. The character of a river as a public
       highway is not determined by the frequency of its use, but by its capacity for being used.
       Nor is it essential that the stream should be capable of being navigated at all seasons of
       the year.

The Montello, 87 U. S. 430, 441-42 (1874):

       The capability of use by the public for purposes of transportation and commerce affords
       the true criterion of the navigability of a river, rather than the extent and manner of that
       use. If it be capable in its natural state of being used for purposes of commerce, no
       matter in what mode the commerce may be conducted, it is navigable in fact and becomes
       in law a public river or highway. Vessels of any kind that can float upon the water,
       whether propelled by animal power, by the wind, or by the agency of steam, are or may
       become the mode by which a vast commerce can be conducted, and it would be a
       mischievous rule that would exclude either in determining the navigability of a river. It is
       not, however, as Chief Justice Shaw said, [Footnote 12, from Pumpelly v. Green Bay &
       Mississippi Canal Co., 80 U.S. 166 (1871)]:

              "every small creek in which a fishing skiff or gunning canoe can be made to float
              at high water which is deemed navigable, but, in order to give it the character of a
              navigable stream, it must be generally and commonly useful to some purpose of
              trade or agriculture."

The Interior Board of Land Appeals has addressed navigability in numerous decisions. From
State of Montana, 11 IBLA 3, 11-12 (1973):



    45    Grays Lake Study
           In United States v. Oregon, 295 U.S. 1 (1935), the Supreme Court held five bodies of
           water in Oregon to be nonnavigable, even though some 10,800 acres of one of the lakes
           were between 3 and 4 feet deep and in spite of evidence of some actual use of the lakes
           for boating. In John Snyder, State of Montana, 72 I.D. 527 (1965), this Department
           determined that a shallow lake in Montana approximately a mile long and a half-mile
           wide did not meet the test of a navigable body of water set forth by the Supreme Court.
           The Department has also held that an inland lake, two miles long and three-fourths of a
           mile wide, is not navigable in the sense that its waters can be put to a public use for the
           purpose of trade or commerce. Reuben Richardson, 3 L.D. 201 (1883).

                                            In Its Ordinary Condition

The principles thus laid down have recently been restated in United States v. Holt State Bank,
270 U. S. 49, 56, where the Court said:

           The rule long since approved by this Court in applying the Constitution and laws of the
           United States is that streams or lakes which are navigable in fact must be regarded as
           navigable in law; that they are navigable in fact when they are used, or are susceptible of
           being used, in their natural and ordinary condition, as highways for commerce over
           which trade and travel are or may be conducted in the customary modes of trade and
           travel on water, and further that navigability does not depend on the particular mode in
           which such use is or may be had -- whether by steamboats, sailing vessels or flatboats41 -­
           nor on an absence of occasional difficulties in navigation, but on the fact, if it be a fact,
           that the stream, in its natural and ordinary condition, affords a channel for useful
           commerce. 87 U. S. 439; United States v. Cress, 243 U. S. 316, 323; Economy Light &
           Power Co. v. United States, 256 U. S. 113, 256 U. S. 121; Oklahoma v. Texas, 258 U. S.
           574, 258 U. S. 586; Brewer-Elliott Oil & Gas Co. v. United States, supra,@ p. 86.

From United States v. Utah, 283 U.S. 64, 75 (1931):

           The question of navigability is thus determinative of the controversy, and that is a federal
           question. This is so although it is undisputed that none of the portions of the rivers under
41
     This will be discussed below in the discussion of muskrat trappers’ boats.

        46     Grays Lake Study
       consideration constitute navigable waters of the United States -- that is, they are not
       navigable in interstate or foreign commerce, and the question is whether they are
       navigable waters of the State of Utah. [Footnote 5, See 77 U.S. 415] State laws cannot
       affect titles vested in the United States. [Footnote 6, In 1927, the Utah Legislature passed
       an act declaring "the Colorado River in Utah and the Green River in Utah" to be
       navigable streams. Laws of Utah, 1927, c. 9, p. 8.] [Footnote 7, Brewer-Elliott Oil & Gas
       Co. v. United States, 260 U. S. 77, 87 United States v. Holt state Bank, 270 U. S. 49, 270
       U. S. 55-56.]

                   Highway For Commerce (Trade and Travel) On Water


       Although the river must be navigable at the time of statehood, this only means that, at the
       time of statehood, regardless of the actual use or lack of use of the river, the river must
       have been susceptible to use as a highway for transportation and commerce. (United
       States v. Utah (1931) 283 U.S. 64, 83; In re: The Montello, 87 U.S. 430 (1874).


                                    At the Date of Statehood

For rivers, from United States v. Utah, 283 U.S. 64, 75 (1931):

       In accordance with the constitutional principle of the equality of states, the title to the
       beds of rivers within Utah passed to that state when it was admitted to the Union, if the
       rivers were then navigable; and, if they were not then navigable, the title to the riverbeds
       remained in the United States. [Footnote 4, Shively v. Bowlby, 152 U. S. 1, 26-27; Scott
       v. Lattig, 227 U. S. 229, 242-243; Donnelly v. United States, 228 U. S. 243, 260;
       Oklahoma v. Texas, 258 U. S. 574, 583; United States v. Holt state Bank, 270 U. S. 49,
       55; Massachusetts v. New York, 271 U. S. 65, 89.]

And for lakes, from United States v. Oregon, 295 U.S. 1 (1935):

       Since the effect upon the title to such lands is the result of federal action in admitting a
       State to the Union, the question whether the waters within the State under which the lands
       lie are navigable or nonnavigable is a federal, not a local, one. It is therefore to be

    47    Grays Lake Study
 determined according to the law and usages recognized and applied in the federal courts,
 even though, as in the present case, the waters are not capable of use for navigation in
 interstate or foreign commerce. United States v. Holt State Bank, 270 U. S. 49, 55-56;
 United States v. Utah, supra, 283 U. S. 75; Brewer-Elliott Oil & Gas Co. v. United States,
 260 U. S. 77, 87.




48   Grays Lake Study
IX.        Original Meanders42

It is the original 1875 and 1885 General Land Office surveys that created the ownership pattern
for settlement in the Grays Lake area. The two original deputy surveyors, John B. David, along
the southwesterly portion of the lake, and J.R. Glover, for the remaining portion of the lake,
surveyed the township, section, and meander lines allowing for settlement and subsequent patent
of the private lands adjoining the lake. The fact that both original surveyors decided to meander
Grays Lake is not necessarily an indication that they believed the lake to be navigable but rather
might only be a recognition that the lake was larger than 40 acres in size and needed to be
segregated from the upland acreage so that the entryman were not adversely impacted by having
a portion of his claim under water.

To segregate the water acreage from the upland acreage, the surveyors ran a traverse43 of the
edge of the water body between previously set meander corners.44 This traverse of the edge of


42
  Manual of Surveying Instructions, 2009, is the rules of surveying the public lands of the United States. BLM
surveyors or any federal surveyor conducting a survey for inclusion into the Public Land Survey System follows
these instructions. There have been previous editions, a new one approximately every twenty or so years since
1851, and these Manuals have provided a consistent set of rules over the decades. Many public lands states have
adopted the current Manual as their rules or guidance for the private surveys of lands originally surveyed under
those instructions, to include Idaho.
43
     From the 2009 Manual:

           8-2 Meandering and original surveys is discussed in detail in sections 3-158 through 3-207. In summary,
           the traverse that approximates the margin of waters is termed a meander line. The original survey of water
           boundaries described the conditions as they existed at the date of that survey. This process is presumed
           accurate at the date of the survey as future changes are expected. A meander line is not normally surveyed
           as a boundary but only as a representation of the actual boundary, which is the ordinary or usual upper limit
           of the water body. Normally, when the Federal Government conveys title fronting a navigable inland body
           of water, the intention is that the upland ownership extends to the ordinary high water mark (OHWM). For
           lands fronting a nonnavigable inland body of water, the intention is that the upland ownership extends to
           the medial line.

           8-19 The existence of a gross error or blunder in the original meander line record is sometimes apparent
           when a sharp topographic feature is reflected in the original record but is offset at a considerable distance
           from its restored location, hence the rationale for placing the original meanders on the ground (figures 8-1
           through 8-3). Using the principle of placing the blunder where the blunder occurred, the record should be
           judiciously corrected so that the restored meander line adequately reflects the topography.

           Past record errors have included reversed meander course order, an error in the inversed final course, the
           original surveyor erroneously following the banks of another water body, e.g., meandering a stream
           entering the river intended to be meandered, meandering the top of vertical banks some distance back from

        49    Grays Lake Study
the water allows for a closed figure of the upland so that the upland lot acreage would be known
and subsequently applied for and patented. This traverse is run along the line of ordinary high
water. It is not intended to follow every change of direction but rather the average location of
the shore line recognizing that the location will change because of erosion, accretion, or reliction.

The line of ordinary high water is usually evidenced by two distinct but different pieces of
evidence, i.e. vegetation changes and a physical feature such as a bank. Because the floor of the
Valley has such a shallow gradient, the transition from upland to water is slow and gradual.
Minor changes in surface elevation result in large changes in the horizontal position of the edge
of the water. Additionally, the bulrushes remove the possibility of wave action creating a bank
on the shore line. Determining the line of ordinary high water can be confusing to the untrained
and has resulted in numerous lawsuits around the United States. It is, according to the Manual in
section 8-11:

           The bodies of water are segregated from the upland along the margin and ideally at the
           point where the long continued presence and action of the river or lake has completely
           suppressed terrestrial vegetation through its effect on the indigenous plants and the soil.
           Terrestrial vegetation is to be distinguished from aquatic and wetland obligated
           vegetation in that the same vegetation can be found at higher and dryer sites. This margin
           of the water body for meandering is termed the ordinary high water mark. 45


           the water’s margin, meandering during flood stage rather than “ordinary high water” (not necessarily error
           but may explain an excessively wide river), or transcription errors.
44
  A meander corner is a corner on a surveyed line that intersects the ordinary high water mark or the line of mean
high tide.
45
     Two of numerous cases provide additional explanation:

           A plain explanation of the term is provided by the Ninth Circuit Court of Appeals in United States v.
           Claridge, 416 F. 2d 933 (1969), in which the court stated:

                    The ordinary high water mark of a river is a natural physical characteristic placed upon the lands
                    by the action of the river. It is placed there, as the name implies, from the ordinary flow of the
                    river and does not extend to the peak flow or flood state so as to include overflow on the flood
                    plain, nor is it confined to the lowest stages of the river flow. 416 F.2d at 934.

           An Idaho case, Heckman Ranches v. State, By and Through Dept. of Public Lands, 99 Idaho 793, 589 P. 2d
           540 (1979) has this from the special concurrence by Justice Bistline:


        50    Grays Lake Study
Additionally, in Manual section 8-12

         There is no requirement that the meander line very closely approximate the ordinary high
         water mark such that every small indentation and projection is depicted by angle points
         on the traverse. An ideal approximation is one that would include an amount of water
         area equal to the amount of upland excluded. Depending upon the terrain, the number of
         meander courses is desirably between 5 and 16 per mile of meanders. Meander lines may
         be surveyed by any reliable method of measurement that can determine bearing and
         distance or coordinates that may be mathematically converted to courses. The angle
         points along the traverse are not normally monumented. Where steep or vertical banks of
         a river or lakeshore are encountered, the angle points are generally chosen to fall on the
         tops of the banks at a safe location.

A common misperception is that the original surveyors were cloaked with some authority to
make authoritative navigability determinations. They were not, as pointed out in this Interior
Board of Land Appeals decision, State of Montana, 11 IBLA 3, 8 (1973):

         The fact remains that the meandering of bodies of water in surveying the public lands is
         done for convenience and has nothing whatsoever to do with determining navigability,
         which is a question of federal law to be determined according to the general rule
         recognized and applied in the federal courts. United States v. Holt State Bank, 270 U.S.
         49, 55-56 (1926). The surveyors have no authority to make such determinations.


In fact, some states have attempted, by state statute, e.g., Montana46 and Oregon,47 to use the
original decision to meander a water body as conclusive evidence that the water body is




                  Based upon the case law, texts and other materials reviewed, the OHW mark is defined by:
                          1) A line marked in the soil by the action of water from the ordinary flow of the river;
                          2) Below which the soil changes, terrestrial vegetation is destroyed, and the soil loses it
                          value for agriculture, including grazing of livestock;
                          3) The line is generally marked by the lower limits of transitional vegetation;
                          4) Exclusive of the annual spring floods.
46
   From State of Montana, 111 IBLA 3,6 (173):

         We realize Section 26-336, Revised Codes of Montana, 1947, read (sic) in part as follows:

     51     Grays Lake Study
navigable. The statutes invariably fail because of the requirements that the water body be
navigable in fact, as discussed below, and not the result of a surveyor’s decision to meander.


                                  Previous Navigability Determinations
                                        or Failure to Determine

Through the decades, numerous documents have skirted concluding whether Grays Lake is
navigable or non-navigable. That it was meandered seemed to suffice. The earliest document
concluding that the lake is non-navigable, which had any supporting evidence, is a
Memorandum48 by Geraint Humpherys, a field solicitor operating in several capacities during his
career with the Bureau of Indian Affairs (Chief Field Counsel at the date of this memorandum).
The State of Idaho has authored a report49 containing language where a portion of the lake may
be navigable.


     1. Geraint Humpherys Memorandum


His memorandum has a synopsis of the history, issues, terrain and legal analysis needed for a
navigable or non-navigable determination (he refers to non-navigable as innavigable). This
memorandum is discussed in some detail because it is referred to by later opinions and because
he has laid out many of the issues that remain important today. Below are some of his writings,
by Memorandum page number, followed by italicized comments regarding his quotes:



         "Definition and use of lakes as navigable waters. All lakes wholly or partly within this state, which have
         been meandered and returned as navigable by the surveyors employed by the government of the United
         States. * * *"
47
  A state may not by statute declare a body of water navigable which is not navigable in the federal sense and thus
deprive the United States of its title. U.S. v. Oregon, 295 U.S. 1 (1935).
48
  Geraint Humpherys, MEMORANDUM Concerning the Right of the United States , to Use Water from Gray's
Lake, Idaho, for its Fort Hall Indian Irrigation Project, December 1, 1934.
49
   Grays Lake Navigable or Non-navigable. This report, developed by the Department of Lands, was signed
September 26, 2000 by L.D. Benedick, Eastern Idaho Department of Lands supervisor. The report has been used for
various meetings and includes a large set of attachments referred to in the footnotes. It comes in a large black three
ring binder with a blue paper insert titled “Grays Lake” and contains copies of the full report and attachments found
both at the Department of Lands in Boise and Grays Lake Refuge Headquarters Office. Another copy of the report,
without attachments, was provided by the Field Solicitor’s office in Boise.


     52     Grays Lake Study
On Page 1, under Statement of Questions to be Considered, he addresses as issue number one:


          “1. Does the United States own the bed of Gray's Lake inside the meander line?”


While he does not address the question as a straight navigability issue, he goes through a
navigability analysis as part of his conclusions. He questions whether there were restrictions in
the patents to the upland issued prior to 1907 when the United States acquired Barzilla Clark’s
water rights, whether the upland owners were on notice that the United States had a right in the
bed, and whether there is a question of unjust enrichment because the lake seasonally retreats
below the meander line resulting in extra grazing lands to the settlers. Included below his
selected quotes are comments in italics.


Beginning with his Preliminary Statement below where even at that time, issues of land title and
water rights were intertwined.


          This memorandum is in part supplementary to my report on water right problems for the
          Fort Hall Project dated January 25, 1934. The purpose of it is to discuss and indicate as
          far as possible the method of handling a matter of importance to the Fort Hall Indian
          Irrigation Project that has been the subject of controversy at times for the past twenty-five
          or more years. It becomes necessary to discuss the ownership of the bed of Gray's Lake
          here because if the United States does not own the bed of the lake, and has not acquired
          any other right to use it, it would be difficult to reach a basis upon which it could use the
          water; so that the answer to the problem of water use involves as an incident the
          ownership or use of the bed. From the beginning, questions concerning the ownership of
          the bed and water rights are intertwined. This combined issue, along with today’s
          environmental, recreation, and ranching concerns, results in the intense interest in this
          report’s conclusions.
Page 2:
          The lake, as such, is not really a lake and probably never was in fact a lake. It is of course
          a lake in appearance-in the spring of the year for from one to three months each year after
          the snow in the surrounding mountains begins to melt. These pictures show how, because

    53      Grays Lake Study
         the shores are so gradual in slope, a drop of a few inches in water surface elevation can
         result in a large horizontal change in the water’s edge.




Figure 36 Pictures from 1967 Annual Refuge Report located at the headquarters office.




Figure 37 Both pictures taken from approximately the same location. The first at flood stage, the second after the water
surface had dropped only a few inches. The lateral change in the edge of the water is substantial.



Continuing on page 2:
         In the fall as a general rule, even though no artificial works are operated, the water has
         disappeared, so that there remain only a few open places which contain water. These


     54     Grays Lake Study
         places, we are informed, were brought into being by the burning, in the late fall and early
         winter, of the peat-like substance in the floor of the lake which resulted in leaving the
         depressions, which of course, after the fire, no longer had vegetation and were lower than
         the surrounding land. Naturally the water remains for a longer period in these
         depressions. It appears that these depressions were being formed by fires as early as
         1875 when the public land surveys were being made in that country. There is no
         evidence of peat being harvested and used as a fuel source; in fact, the peat is hard to
         ignite. However, there is history of the marsh burning due to lightning strikes but
         whether it created the potholes he refers to is unknown.




Figure 38 The refuge has attempted to create open water for waterfowl habitat. They have tried various methods to
include blasting open potholes, burning the peat, and digging ponds. Here they attempted to burn the peat but were
unsuccessful. Photo from the 1966 Annual Report from the headquarters’ files.




     55     Grays Lake Study
Figure 39 Attempting to blow open potholes for open standing water. 1966 refuge Annual Report.




Figure 40 Aftermath of the October 1966 fire. Approximately one third of the entire lake bed burned in this fire.



     56     Grays Lake Study
Pages 10-11:
       It would appear therefore, that the balance of the land owned by riparian owners on
       Gray’s Lake carries title to the respective owners for the bed of the lake, unless a close
       check in the Land Office would show a restriction in the patent designating the meander
       line as the boundary line of the particular grant in question, on the theory that the riparian
       owner received his title prior to the withdrawal order and on the authority of the United
       States v. Rhodes, 3 Fed. 2nd Series,771, holding that the riparian right is a vested right
       immediately upon granting of title from the Federal Government, also the Ladley Case,
       supra. He correctly concludes that upland owners own the bed of a non-navigable water
       body fronting their property. He also, interestingly enough, has a discussion about
       whether a meander line is a fixed boundary (possible omitted lands question) because of
       reservations in the patents or because they were poorly executed. The process of
       meandering and the result of poorly executed or fraudulent meanders is addressed in a
       separate section of this report.


Page 12:
       Another angle to the case is that all these homesteaders knew when they went in that
       there was a wide strip of land available for use during at least the greater part of each year
       and that therefore they were charged with notice of the government use and cannot now
       be heard to say that the government intended them to get two or three times the amount
       of land specified in the patent and that therefore the meander line by implication of law
       became the boundary line for their grant. This is an unjust enrichment argument
       combining the issues of omitted lands and accretion (here seasonal reliction) after survey
       but before patent. Again this is discussed below in the omitted lands section.


This is his summary of Issue one on Page 13:
       In the event the courts should follow Judge Cavanah in the Mission Lake case, it would
       seem clearly to follow that they would hold that as to all lands which had been patented
       prior to the time when the United States purchased Brazilla [sic] Clark’s interests in
       Gray’s Lake, the owners acquired, as riparian owners, title to the bed of the lake under



    57     Grays Lake Study
      the law of Idaho and that as to that portion of the lake fronting on lands then in
      government ownership, the government retained title to the bed of the lake.


      On the other hand if the government takes the position that the meander line was run
      through error and mistake and that therefore the meander line constituted the boundary, it
      ought to be able to sustain it in a proper action in the Federal Court, even though it has
      been a long time since the line was run. The time which has elapsed can be accounted for
      in part at least on the theory that the Land Office has supposed it could go in and survey
      at any time it wished, and from the further fact that for nearly thirty years now the United
      States has been treating the land as if it owned all the bed of the so-called lake. This latter
      feature is only an additional evidence of the theory that it had been treated by the Land
      Office as though the government owned it. This feature of the law was rather fully
      discussed by the Attorney General in the Mud Lake Case, in Minnesota, Cp. Att. Gen. 29
      P. 455.


      In the event that the courts were unwilling to hold with the government on either of the
      above theories, they could and ought, it seems to me, to hold, should the government so
      ask, that: The withdrawal orders of 1907 and the action of Congress in buying Clark’s
      interest amounted to a taking of the property for government purposes. That of course
      would leave the riparian landowners with a claim against the government for whatever
      the land was then worth. Condemnation is broached for the first time.


Page 21 has Humphrey’s Conclusions and Recommendations:


      3). That, in view of the fact that a large number of people have spent their lives there in
      the footsteps of their pioneer parents, in subduing that country, and have built homes and
      developed small cattle and sheep herds, all of which would be seriously impaired and
      some completely ruined if the government now drained the water off and kept it as low as
      possible; that the government, even if it requires legislation to do it, make an effort to
      reach an operating agreement with the landowners surrounding the lake whereby the lake
      will be operated so as to maintain a relatively high water level in the early part of each

    58   Grays Lake Study
         season and thus give the riparian lands as much subirrigation as possible. It is thought
         that this can be done with very little cost to the government if it would concede to the
         landowners the right to use the lake bed in front of their holdings for pasturage or other
         purposes so long as the lake may be used for reservoir purposes by the government. This
         could be for a nominal consideration of a dollar a year, possibly; and in the event that
         such action is not taken or cannot be consummated if tried, that;


         4). Appropriate action be taken to determine the title to the bed of the lake, and asserting
         such ownership to be in the government on the grounds herein indicated: (a) That the title
         had never passed to the surrounding homesteaders, or, (b) if it ever did, that the land had
         been taken for governmental purposes in 1907 and 1908, and remained government
         property ever since. [Note: Due to the irrigation project obtaining Barzilla Clark’s state
         issued reservoir permit.] These methods are bound to be costly and it is thought that the
         operating agreement would disturb the local people but little and at the same time cost the
         government very little to put it into operation; provided, of course, that we are not in error
         as to what the local people would be willing to do in that regard. In any event it seems
         worth trying to reach an agreement.


     2. State of Idaho report


The State of Idaho’s report has a conclusion that a portion or portions of Grays Lake are
navigable. This conclusion from the report is cited in various letters from the State of Idaho to
others.50


50
  January 23, 2001, letter from Clive Strong, Idaho Attorney General to Ron Swan, Assistant Regional Solicitor,
with this “[T]he State of Idaho has evidence that at least a part of the bed and banks of Grays Lake was navigable at
the date of Statehood….”

October 22, 2001, letter from Dirk Kempthorne, then Idaho Governor, to Gale Norton, Secretary of the Interior
stating the State of Idaho has evidence “that at least a part of the bed of Grays Lake was navigable at the date of
statehood….”

March 7, 2008, “Notice of Intent to File Suit Pursuant to Quiet Title Act” letter from Lawrence G. Wasden , Idaho
Attorney General to Secretary of the Interior Dirk Kempthorne, with similar language.

May 1, 1977, Certificate by Cecil Andrus granting to the United States approval to acquire certain lands around
Gray’s Lake providing the vested property rights of the State of Idaho or riparian owners are not affected.

      59    Grays Lake Study
From the report page 1:
       The following facts and supportable assumptions were arrived at through review, study,
       and report on data recently collected about Grays Lake.


In item number 4:
       “From records, there is no question that the waters of Gray’s Lake are navigable-in-fact.”


In item number 5:
       “The lake was never used for, nor will it probably ever be of any use as a highway for
       commerce. One would logically avoid the lake/marsh and go around it. The Lander
       Cutoff of the Oregon Trail went right by the south shore of Gray’s Lake. The Salt Trail
       and Goodale’s Cutoff (Cattle Trail) both ran along the eastside of the lake.”


Most important is the Conclusion at the end of the list of 12 items on page 3 and which page
contains the author’s signature, L.D. Benedick, Eastern Idaho Department of Lands Area Office
Supervisor, and date September 26, 2000. The Conclusions says:


              While there is an abundance of information and opinions available, including
              lengthy federal solicitor’s reports and memorandums, etc., I could find no data
              that I thought would substantiate a firm claim by the state for a classification of
              “Navigable” for Grays Lake. The title to ownership of the bed of the Grays Lake
              appears to be an issue between the riparian landowners and the federal
              government..


From the report page 6:
       There has been no judicial determination as to the ownership of the bed of Grays’ Lake.




    60    Grays Lake Study
     3.	 March 7, 2008, Notice of Intent to File Suit Pursuant to Quiet Title Act, letter from
         Lawrence G. Wasden , Idaho Attorney General to Secretary of the Interior Dirk
         Kempthorne.

     Page 1:
        “The State of Idaho claims title to the bed of Grays Lake, a navigable lake with the State
        of Idaho.”


        “The State’s claim is based on the Submerged Lands Act, 43 U.S.C. § 1311….”51


On Page 2 the State attempts to recognize the original surveyors, Glover and David, as having
the authority to make a navigability determination. The State argues that according to their
survey instructions “surveyors were to meander ‘all lakes, bayous, and deep ponds which may
serve as public highways of commerce. Shallow lakes or ponds readily to be drained or likely to
dry up, are not to be meandered.’” Instructions of the Commissioner of the General Land Office
to the Surveyors General of the United States Relative to the Survey of the Public Lands and
Private Lands Claims, Washington D.C., Sec. 3 (1881).


The first problem is the qualifier “may” serve as public highways. The original surveys not only
established boundaries, i.e., section lines, they were also the basis for the first geographic
information system. The field notes contained information about salt licks, waterfalls, evidence
of minerals, soils and vegetation types, descriptions of the terrain, existing settlements, and other
information about the lands they were surveying of benefit to the federal government in
establishing policy. Major physical features were noted so that decisions could be made about
what the policy makers should do with similarly situated features.


As discussed above in the Surveying Issues section, navigable in law waters, that is, those that
are tidally influenced, were meandered. Major bodies of water that carried commerce or
appeared to be able to function as a highway of commerce were also to be meandered even if the


51
  While the Submerged Lands Act confirms title to beds of navigable waters in the states, including inland states,
these inland states’ rights were already recognized by various U.S. Supreme Court decisions. The main thrust of the
Act was to confirm the various coastal states’ interest in those lands in the three-mile margin lying offshore the
coastlines or those states adjoining the Great Lakes.

      61    Grays Lake Study
surveyor did not happen to see vessels floating by when he was there. However, water bodies
that the surveyor did not deem navigable but did seem big enough to segregate out the water
acreage, i.e., approximate 200 feet wide for rivers or 40 acres or more for lakes, were also
meandered so that the settler was not charged for that farmable acreage. Obviously Grays Lake
is larger than 40 acres.


This leaves the State with the “likely to dry up” argument. Figure 17, above on page 29, shows
Pelican Slough approximately 4 miles to the southwest of Clarks Cut. It is mostly dry now but
was meandered in 1875. Grays Lake retains more water but it too is shallow, portions do dry up
at the end of some years, there is no recorded travel on the lake, and bison skeletons are found in
the lakebed, etc. The original surveyors meandered both water bodies. Was their decision to do
so based on size or did they feel either was navigable? Were the lakes deeper and not subject to
drying up? Did they or could they support commerce?


If the lake was unquestionably navigable or non-navigable, the issue would not have been
sidestepped for the last one hundred plus years. Grays Lake, or marsh, is large; it does contain
water, sometimes more than at other times. The surveyors came through and did their surveys.
They did not need to determine navigability, as both Pelican Slough and Grays Lake were large
enough to meander.


Finally, the State argues muskrat trapping suffices for commerce. This is discussed in more
detail below in the United States v. Oregon, 295 U.S. 1 (1935) case where muskrat trapping did
not constitute commerce on Malheur Lake, a lake very similar to Grays Lake in size and terrain.

   4.	 Memorandum No. 1 between Grays Lake National Wildlife Refuge and Bonneville and
       Caribou Counties, 1965.

       From the heading “Ownership:”

               There has been no judicial determination of the extent of the rights to the bed of
               Grays Lake between the United States, and the private landowners whose lands
               abut the meander line of Grays Lake.



     62    Grays Lake Study
5.	 December 19, 1963, M-36664 Proposed establishment of a refuge for migratory birds at
   Grays Lake, Idaho, from the Solicitor to the Assistant Secretary for Fish and Wildlife:


           At this point, it should be noted that the navigability or non-navigability of Grays
           Lake has never been determined.


6.	 A supplement to the M-36664 opinion is issued on August 10, 1964 and says:


   The contemplated use agreement recites the fact that there has been no judicial
   determination of the extent of the rights of the parties in the land [the bed of Grays Lake]
   necessary to establish the refuge.


7.	 November 9, 1965, Letter from the State Director, Idaho, to the Director, Bureau of Land
   Management, Subject Line: Determination of navigability of Grays Lake, Idaho.


   This letter asks for any information regarding the navigability of Grays Lake.


8.	 January 25, 1966, Letter from the Chief, Division of Engineering to the State Director,
   Idaho, Subject Line: Grays Lake.


   This response to the State Director, from the Chief Cadastral Surveyor for the federal
   government says:


           The ownership of the bed of Grays Lake has been controversial for many years.
           No action looking toward a cadastral survey should be taken by your office until
           we have conducted a more thorough research.


9.	 Even the State of Idaho legislature has avoided addressing the bed of Grays Lake in
   Idaho Code 58-104(9):




 63   Grays Lake Study
               To regulate and control the use or disposition of lands in the beds of navigable
               lakes, rivers and streams, to the natural or ordinary high water mark thereof, so as
               to provide for their commercial, navigational, recreational or other public use;
               provided, that the board shall take no action in derogation of or seeking to
               interfere with the riparian or littoral rights of the owners of upland property
               abutting or adjoining such lands; except that when necessary to provide for the
               highest and best use of such lands for commercial, navigational, recreational or
               other public purposes, the board may acquire the riparian or littoral rights of
               upland owners by purchase or gift. The term "natural or ordinary high water
               mark" as herein used shall be defined to be the line which the water impresses on
               the soil by covering it for sufficient periods to deprive the soil of its vegetation
               and destroy its value for agricultural purposes. Provided that this definition shall
               not be construed so as to affect or change the vested property rights of either the
               State of Idaho or of riparian or littoral property owners. Lands lying below the
               meander line of a lake bed encompassing a national wildlife refuge as
               established under the authority of the Migratory Bird Conservation Act of
               February 18, 1929 (45 Stat. 1222), as amended, or the Fish and Wildlife
               Coordination Act (48 Stat. 401), as amended, or the Fish and Wildlife Act of
               1956 (70 Stat. 1119), as amended (16 USC 742a through 742i), are not subject
               to the application of this act. (emphasis added).


So it began in 1934 and continues until today. The question of Grays Lake bed ownership, i.e.,
is the feature a navigable body of water, has not been answered. Instead questions about who
owns the lakebed, are there leases, are there competing interests, might there be omitted lands,
are the meanders a fixed and limiting boundary, and does the federal government owe the upland
owners for use of the bed have been raised.


                                 Omitted lands or an Avulsion


Omitted lands occur when the original meanders are grossly erroneous or fraudulent. The
excluded lands are considered public lands with the original meanders held as a fixed and

    64    Grays Lake Study
limiting boundary. The mistake can include meandering a lake that was not a permanent body of
water, returning bearings and distance with errors such as reversed quadrants causing the
meanders to run out into the water body or over a ridge, or they were never actually run on the
ground but rather were reported with made up or fraudulent information. The requirements for a
finding of omitted lands are laid out in an Interior decision Burt A. Wackerli, 73 ID 280 (1966).
These are:


             1.	 The ratio between patented acreage and the omitted acreage fronting the original
                 patent (50% is a general rule of thumb). As an example, if a government lot
                 originally was described as containing 25 acres but there was an additional 15
                 acres of upland between the meander line and the actual line of ordinary high
                 water, then the ratio would be 60%. However, it is the entire patent acreage that
                 is considered. Typically a patent contains normal 40 acre aliquot parts, otherwise
                 known as a quarter quarter section. But along a water body, a patent description
                 will often have one or two government lots and two or three forty acre quarter
                 quarter sections. In this example there might be a 25 acre government lot and
                 three forty acre aliquot parts for a total of 145 acres. The ratio then is 15 acres
                 omitted in front of the total patent acreage of 145 acres or approximately 17
                 percent and therefore is not considered significant.


             2.	 Value of the land at the date of the original survey. This is an economic
                 comparison of the cost of the survey versus the value of the land. The more
                 common example of short cuts is for a surveyor to cut across the neck of a
                 peninsula sticking out into a lake or river rather than traversing the entire
                 perimeter of the peninsula because he felt the extra cost doing so exceeded
                 acreage value gained by properly surveying the entire peninsula.

             3.	 The physical hardships in surveying the land properly at the date of the original
                 survey. Sometimes it was physically impossible to accurately portray the proper
                 meanders at the time of his survey. Usually this occurred at flood stage where the
                 indicia of the ordinary high water mark, i.e., the bank and vegetation change was


    65       Grays Lake Study
               under flood waters. This usually manifests itself in a much wider or larger water
               body than one would expect when following the visible ordinary high water mark
               in the fall after the flood waters had receded. This flood stage problem seems
               unlikely given that the surveyors, David and Glover, surveyed in the summer and
               fall. However, flood waters were not the only problem. A physical change in
               soil, banks, and vegetation can also be difficult to determine. Sometimes,
               elevation lines are run because the physical elements are not there. This has
               occurred on the Great Salt Lake, is the reason for the Gradient Boundary method
               used in Texas, and in Idaho where an elevation was chosen for ordinary high
               water rather than features on the shoreline (Lake Coeur d’Alene).


           4.	 The magnitude of the error, i.e., how far from ordinary high water were the
               original meanders? This is a catchall element. It is possible that the ratio is high,
               e.g., 200 percent where there was two acres omitted in front of a one acre patent
               or the meanders were run on top of a bluff instead of down at the bottom of the
               scree slope at the river’s edge. So even though the meanders were run in the
               incorrect location, it was understandable why they were run where they were and
               the difference is reasonable.


This is the difficulty with determining how reasonable the original meandering decisions were.
The weather conditions, flood stage possibilities, the surveyor’s decision in evaluating how much
the land was worth versus the cost of surveying, etc., are all subjective. The proper approach is
not to look for reasons to find the original surveyor wrong but rather to understand whether he
acted in good faith with a reasonable result when executing the original meanders.




    66    Grays Lake Study
Figure 41 1927 photo of the road on the north end of the lake. At flood stage, portions of the road are under water
indicating how slight variations in surface water elevation can expand the lake. From the 1927 Young report.




Figure 42 September 29, 2010, photo looking northerly from the viewing spot at the refuge headquarters. An excellent
view of the transition from hay to bulrush. Bear Island is partially visible on the left center of the image.

Again, looking at the 2009 Manual:


         8-169 If land is to be regarded as erroneously omitted from survey, it must first be shown
         affirmatively that the area was land in place at the date of the original subdivision of the
         township. Then, if the land is similar in character to the adjoining surveyed lands, the


     67     Grays Lake Study
           usual inference that the official survey was correct may be set aside, and the conclusion
           substituted that the omitted land should have been covered by that survey. Where these
           facts exist, the original meander line becomes a “fixed and limiting boundary,” and the
           omitted lands remain in Federal ownership, subject to survey and disposal or retention.
           There must be clear and convincing evidence to show that the representations of the
           original plat and field notes are grossly erroneous. (emphasis added).


This is a high standard and why it is difficult to challenge the original surveyors, i.e., Glover and
David, and the placement of their meanders.


Because the valley floor has a shallow gradient, the vegetation transition zones are even today
gradual, and the lack of well-defined banks makes it difficult to show the original surveyors were
incorrect, using a clear and convincing evidentiary standard.52 If a finding of omitted lands were
made, then the original meanders become a fixed and limiting boundary. This cuts off the
upland owners from access to the lake, as they are no longer riparian owners. The land inside the
meanders is federal land still subject to a possible state claim to a navigable bed. Based on the
above, there should be no finding of omitted lands.


Similarly, there is no avulsion. Two pertinent Manual sections address this issue:


           8-97 An avulsive change cannot be assumed to have occurred without positive evidence.
           Positive evidence is direct proof of the facts establishing that an avulsion has occurred
           and does not arise from any presumption. When no such showing can be made, it must
           be presumed that the changes have been caused by erosion and accretion.



52
     Simpson report p. 11:

           The preliminary survey work done on the afternoon of the 17th May [2000] included the measurement of
           two transects at right angles to the apparent water line. The purpose of the transects was to learn whether
           there was a shelf or notch present. When the lake remains at a constant elevation for a long period of time,
           a shelf or notch is usually cut into the shore profile.

They found no notches. This was at a higher water elevation than would have been at the end of the summer. This
year’s investigation also found no obvious banks around the perimeter of the lake. The best indication of ordinary
high water is the result of vegetation transitions.

        68    Grays Lake Study
          8-102 Avulsive changes to lakes are rare. 

          . . .

          Where land is inundated due to damming or other such direct human-made
          improvements, the boundary remains fixed as its last previous location just prior to the
          avulsion.


Clark’s Cut is manmade. The control structures on the north, Willow Creek, and southwesterly,
entering Clark’s Cut, are manmade. However, their effect is to maintain the agreed to drawdown
schedule emulating natural conditions. There is no evidence to indicate additional land has been
inundated nor has the lake been drained. This is shown by the current ordinary high water mark
and the original meanders measuring the pre-1890 ordinary high water mark being in
functionally the same location. The minor differences can be explained by normal accretion,
erosion, and the surveyor’s choice of features, i.e., vegetation line, to follow. There is no
avulsive change.


Finally, it is the Secretary of the Interior’s responsibility to determine what are federal lands.
This includes omitted lands, avulsions affecting the boundaries of existing federal lands, and
administrative navigability determinations.


          8-48 The Secretary of the Interior has both the authority and the duty to consider and
          determine what lands are public lands of the United States (see 43 U.S.C. 2 and State of
          Montana, 11 IBLA 3 (1973)). Such authority and duty include an administrative
          determination of navigability of a river or lake to ascertain whether title to the land
          underlying the water body remains in the United States or whether title passed to a State
          upon its admission into the Union (Western Aggregates, LLC., 169 IBLA 64, 76 (2006);
          State of Montana, 88 IBLA 382, 384 (1985)).


The Secretary’s navigability determination is an administrative determination subject to judicial
review.




     69       Grays Lake Study
X.      Evidence Affecting the Navigability Elements

                                 Used For or Susceptible For Use

Navigability is proven when there is a record of historic use of the waterway by boats, ships,
rafts, etc., to commercially transfer materials, goods, persons from Point A to Point B. These are
direct probative evidence of navigability in fact. This evidence can be testimony, photographs,
newspaper articles, physical remains of shipping facilities, or anything that shows the use of the
river or lake for commerce. However, a review of the literature, interviews, aerial
photographs, maps, and other documents has found no history of docks, regular routes of
trade or travel across the lake, or other indicia of commerce, since the date of statehood, on
Grays Lake.

Mere lack of use is not determinative as susceptibility of use can also qualify the lake as
navigable. This lack of use requires more study to include water depth, open water, water
surface elevations, conditions at the date of statehood, and other factors to determine whether the
lack of commerce was due to a mere failure to use or because the lake cannot be used for
commerce due to physical limitations. In other words, is there no use because it is not navigable
in fact or is there no use because there has not yet been a commercial reason to use it? The
evidence or complete lack thereof indicates it has not been used for commerce and is not
susceptible for use as there has been sufficient commercial activity in the area to use it, e.g..,
ranching, cattle driving, gold mining, etc., that if it were susceptible to use it would have so been
used.




     70   Grays Lake Study
Figure 43 Photo at or near flood state. Taken from the 1924 Granville report. Some surface water in the area where hay
will grow as the summer progresses and the water relicts.




Figure 44 From the 1966 Refuge Annual Report. Tracks in the bulrushes are from the large draglines used for digging
and trenching.


     71     Grays Lake Study
Figure 45 Two of the draglines operating in the "lakebed." The second one is visible on the right side and middle of the
picture. From the 1966 Refuge Annual Report.

Two U.S. Supreme Court cases have rendered navigability decisions on lakes similar to Grays
Lake, Lake Malheur in Oregon and Mud Lake in Minnesota. In both cases there is a history of
small boat usage, the lakes are shallow, and there is a growth of tules. In fact, muskrats were
trapped on Lake Malheur similarly to Grays Lake. Lake Malheur, with muskrat trapping, was
found to be non-navigable and Mud Lake was found to be navigable because it was transited by
Mud River, which river provided a means of access between settlements and other rivers.

Both cases are compared to Grays Lake in this section with in-depth discussions of susceptibility
of use for commerce and the elements of trade and travel in the text of the decisions. Italicized
comments about the quotes and how they apply to Grays Lake are found after the quoted
material. The listed page numbers are from the pages of the United State Reports and will break
a sentence.53

                     Non-Navigable - United States v. Oregon, 295 U.S. 1 (1935):

         Page 295 U. S. 16

53
 United States Reports is the official reporter of the proceedings of the Supreme Court published by the
Government Printing Office and overseen by the Court’s Publication Office.

     72     Grays Lake Study
           Contour maps of Lake Malheur, where conditions admittedly are the most favorable for
           navigation, show that nearly half its area, with water surface standing at 4,093 feet, would
           be covered with water two feet or less in depth, and less than one-fourth of its area with
           water

           Page 295 U. S. 17

           between three and four feet in depth. [Footnote 2] Grays Lake is similar in depth54 and
           about half the size in area. Lake Malheur is 47,670 acres in area as cited on page 5 of
           the opinion.




Figure 46 Imagery from Google Maps. Malheur Lake is in the middle and Mud Lake in the lower left.

           The areas which would be covered by water of depth sufficient to float boats are shown
           not to be continuous enough to afford channels or waterways capable of use in
           navigation. This is exactly the situation at Grays Lake. There are two non-contiguous

54
     The lake is deepest during spring runoff from snowmelt. Typical reports for spring depths are:

Sverdrup & Parcel and Associates, Inc., Consulting Engineers, ADVANCE PROJECT PLANNING FOR MARSH
REHABILITATION AT GRAYS LAKE NATIONAL WILDLIFE REFUGE NEAR WAYAN, IDAHO, December,
1985, p. 5:

           The average depth of water in the marsh at the height of the spring runoff is about 3-1/2 feet, but lower
           inflow, and withdrawal for irrigation during the remainder of the year leaves the majority of the marsh dry
           or with few areas exceeding 6 inches in depth.

Paul E. Steele, Masters of Science thesis, University of Idaho, Factors Affecting Waterfowl Production at Grays
Lake, Idaho, 1952, p. 8 “These data conclude that Gray’s Lake is shallow and uniformly between three and four feet
deep in the spring.”


        73     Grays Lake Study
 seasonal open water areas. One is in the southeasterly portion of the lake and another
 near the natural northern outlet, together totaling approximately 500 acres, a mere five
 percent of the total area of the lake.


 [T]he water is so shallow for long distances from the meander line as to preclude passage
 over it by boats, and, with the water reduced to lower levels by seasonal evaporation, the
 same area becomes mud or dry land. Similarly, the valley floor at Grays Lake has little
 gradient and lacks obvious banks between the upland and the lake/marsh. Observation
 of the valley floor, oblique aerial photography (both historic and current), commentary in
 documents as to water depth, etc. all indicate a shallow transition from definite upland,
 through the wet meadows, into the marsh proper. The shallow water can freeze solid in
 the winter resulting in muskrat loss. The drawdown schedule and normal seasonal
 evaporation and outflow have historically allowed for a hay zone used by the cattle
 ranchers for haying and grazing.


 With a reduction of only one foot in water surface elevation, approximately 11,716 acres
 otherwise covered by water becomes mud or dry land, and other marked changes in the
 distribution of depths are produced. With the reduction in water surface attending the
 usual dry season of the summer, much of the area is made up of small lakes or ponds,
 separated by mud or dry land. Grays Lake is similar. Reductions of only several inches
 of water can result in large horizontal retreats by the edge of the water. Figures 36 and
 37, page 54 above show how a slight decrease in water surface elevation results in a
 large horizontal change.


 Page 295 U. S. 18


 The conclusion must be that, at the time of admission to statehood [1859 for Oregon
 compared to 1890 for Idaho], the bodies of water within the meander line were
 shallow….substantially filled with tules and other types of water vegetation so as to give
 them largely the character of swamps, with irregularly located but connected areas of



74   Grays Lake Study
        shallow open water of variable depths. This is consistent with the previously mentioned
        reports of Grays Lake alternately referred to as a lake or marsh.




        Trapping. The evidence shows that, at times subsequent to 1890, a large number of
        animals were trapped in the tule areas, some in fall and spring, but principally in the
        winter months. Most of this evidence has no bearing on navigability, for, with a few
        exceptions, the trappers appear


        Page 295 U. S. 21


        to have waded or walked. See Toledo Liberal Shooting Co. v. Erie Shooting Club, 90
        F.6d 0, 682. Before 1908, only three trappers are shown to have used boats. Later, one
        trapper is shown to have used a rowboat and another to have used both a rowboat and a
        motorboat.
        ...
        Another, who used a boat in which he had installed a small motor, stated that the
        propeller sometimes struck bottom, when it would be necessary to pole the boat off, and
        that it was often stalled by the tangling of the "weedless" propeller in the vegetation of
        the lake. The decision’s trapping section is particularly important as it relates to Grays
        Lake because trapping is the only recorded “commerce” of Grays Lake, an argument the
        State of Idaho relies on for commerce. The following photos are from a 1950 Masters
        thesis. 55




55
  Roger M. Williams, Masters of Science thesis, University of Idaho, A Preliminary Investigation of the Muskrat
Population of Grays Lake, Idaho, 1950, pgs. 33-34.


     75     Grays Lake Study
Figure 47 The use of a rowboat with a small motor for muskrat trapping on Grays Lake.




Figure 48 The operator is pushing the boat around with a pole. The willow bundle at the front of the boat appears to be
made up of branches approximately one half inch in diameter. There is some evidence that placement of these willow
branches resulted in the formation of clusters of willows around the lake.

         Boating. The special master found that the boating, which took place in the area
         involved, had no commercial aspects, and was of such a character as to be no indication
         of navigability; that it was only such as might reasonably be expected to occur in a
         swampy area of the character and magnitude described. Muskrat trapping on Lake
       Malheur was not considered commerce. It lacks the travel element for navigability, i.e.,
     76 Grays Lake Study
 travelling from Point A to Point B. Rather a muskrat trapper starts at Point A, makes his
 circuit checking his traps, and returns to Point A. Unquestionably, muskrat trapping did
 provide a source of income to the residents of the valley. From the Williams thesis, pg
 65:


         The usual trapping season on Grays Lake is a two to three week period in April.


         During the 1950 season, 22 residents and 19 transient trappers set nearly 20,000
         traps and harvested 5,325 muskrats…The 1948 catch by 35 trappers in two
         separate spring and fall seasons was 10,000 muskrats. [Note: muskrat pelts vary
         in value depending on the market conditions but the literature review and
         interviews indicated that muskrat trapping was an important source of cash
         income to the valley. Income in the 1930’s might be several hundred dollars per
         trapper per year.]


 Page 295 U. S. 22


 Two stated that they could only use the boats during high water in spring and early
 summer. This would coincide with high water in Grays Lake during the spring when
 there was limited use of motorized or poled rowboats for muskrat trapping.


 Page 295 U. S. 23


 The evidence, taken as a whole, clearly establishes the flat topography of the disputed
 area, the shallow water without defined banks, ice-bound from three to four months of the
 year, the separation of areas covered by water of sufficient depth to float boats, the
 presence of tules and other forms of water vegetation, a dry season every year, and
 frequent dry years during which Mud and Harney Lakes are almost entirely without water
 and Lake Malheur is reduced to a relatively few acres of disconnected ponds surrounded
 by mud. These conditions preclude the use for navigation of the area in question, in its
 natural and ordinary condition, according to the customary modes of trade or travel over

77   Grays Lake Study
       water, and establish an absence of that capacity for general and common usefulness for
       purposes of trade and commerce which is essential to navigability. See United States v.
       Rio Grande Dam & Irrigation Co., supra, 174 U. S. 698. At most, the evidence shows
       such an occasional use of boats, sporadic and ineffective, as has been observed, on lakes,
       streams, or ponds large enough to float a boat, but which nevertheless were held to lack
       navigable capacity. See United States v. Rio Grande Dam & Irrigation Co., supra, 174 U.
       S. 699; 87 U. S. 442; Leovy v. United States, 177 U. S. 621, 177 U. S. 627, 177 U. S.
       633; North American Dredging Co. v. Mintzer, 245 F.2d 7; Toledo Liberal Shooting Co.
       v. Erie Shooting Club, supra, 682; Harrison v. Fite,@ 148 F.7d 1, 786.


The above paragraph, from page 23 of the decision could apply to Grays Lake almost verbatim,
i.e., flat topography, ice bound, tules, disconnected open water, and a dry season (sometimes
completely dry).


       It is not without significance that the disputed area has been treated as nonnavigable both
       by the Secretary of the Interior and the Oregon courts. The Secretary, in Lake Malheur,
       19 L.D. 439, December 3, 1894, described Lake Malheur as "nonnavigable," and in Lake
       Malheur, 16 L.D. 256, March 3, 1893, and in Pacific Live Stock Co. v. Armack, 30 L.D.
       521, March 11, 1901, as "little more than


       Page 295 U. S. 24


       a swamp or marsh," and again as a "vast marsh or tule swamp with comparatively little
       open water."


The above case mirrors conditions at Grays Lake.


              Navigable - United States v. Holt State Bank, 270 U. S. 49 (1926):

       The evidence set forth in the record is voluminous and, in some respects, conflicting.
       When the conflicts are resolved according to familiar rules, we think the facts shown are


    78    Grays Lake Study
 as follows: in its natural and ordinary condition, the lake was from three to six feet deep.
 This case is commonly referred to as the Mud Lake case. The area containing Mud Lake
 and the surrounding pools is now a national wildlife refuge, similar to Malheur Lake and
 the refuge there. Mud Lake and Grays Lake both have some areas of open water and
 water depths of 3 feet or more. The marshy area visible in the aerial image on the next
 page is approximately the same size as Grays Lake marsh. Note: There is a reference to
 a different Mud Lake in the Oregon case above. That Mud Lake is a small lake adjacent
 to Malheur Lake in Oregon and not this Mud Lake in Minnesota.

 When meandered in 1892 and when first known by some of the witnesses, it was an open
 body of clear water. Minnesota became a state in 1858.

 Mud River traversed it in such a way that it might well be characterized as an

 Page 270 U. S. 57

 enlarged section of that stream.




79   Grays Lake Study
Figure 49 Google image. The red lines show the general locations of Mud River (E-W) and Thief River (N-S). Both
rivers are difficult to see at this scale. The open water areas are individually named pools.

        Early visitors and settlers in that vicinity used the river and lake as a route of travel,
        employing the small boats of the period for the purpose. The country about had been part
        of the bed of the glacial Lake Agassiz, and was still swampy, so that waterways were the
        only dependable routes for trade and travel. Mud River after passing through the lake
        connected at Thief River with a navigable route extending westward to the Red River of
        the North and thence northward into the British possessions. Merchants in the settlements
        at Liner and Grygla, which were several miles up Mud River from the lake, used the river
        and lake in sending for and bringing in their supplies. True, the navigation was limited,
        but this was because trade and travel in that vicinity were limited. This is the kind of
        historic use for commerce that is missing from Grays Lake. It is due to the fact there was
        no open channel for commerce through the bulrushes at Grays Lake.

     80     Grays Lake Study
        In seasons of great drought, there was difficulty in getting boats up the river and through
        the lake, but this was exceptional, the usual conditions being as just stated. Sand bars in
        some parts of the lake prevented boats from moving readily all over it, but the bars could
        be avoided by keeping the boats in the deeper parts or channels. Some years after the lake
        was meandered, vegetation such as grows in water got a footing in the lake, and gradually
        came to impede the movement of boats at the end of each growing season, but offered
        little interference at other times.

Grays Lake, Lake Malheur, and Mud Lake all have tules. Grays Lake is and has been choked
with tules for centuries except for the small open areas on the southerly and northerly ends of the
marsh. Lake Malheur dries substantially during the summer, as does Grays Lake. Mud Lake
was not choked with tules until decades after statehood. Comparing the two decisions shows
shallow lakes, with aquatic vegetation, and seasonable boating. The big difference between non-
navigable Lake Malheur and navigable Mud Lake is that Lake Malheur was not part of a
transportation network where commerce by water was a reliable and essential part of the
economy but Mud Lake was. Overall, Grays Lake is more similar to Lake Malheur than it is to
Mud Lake.

                  Grays Lake Susceptibility for Use as a Highway of Commerce


     1.	 Lack of open water: Conditions, both current and historically, indicate that the lake is
        non-navigable due to a lack of continuous open water. Today the only open water is
        concentrated near the southeasterly and northwesterly end of the lake, encompassing
        about 5 percent of the entire meandered bed.56




56
  1,000 acres of open water in numerous shallow ponds and small lakes. Exploratory lease application, p. 2. Other
sources refer to only 500 acres of open water


      81    Grays Lake Study
Figure 50 Picture from the viewing site at refuge headquarters. Looking northwesterly towards Bear Island over Grays
Lake. No open water is visible. The darker brown surrounding Bear Island is the bulrushes or tules with the lighter tan
color towards the foreground hay fields.

            Even this can dry up completely at the end of summer.57 To retain some open water, the
            Fish and Wildlife, as previously mentioned, has dredged and dynamited potholes in the
            lakebed.




57
     J. C. Smith said that the lake has completely dried up five of the last seven years.


        82     Grays Lake Study
Figure 51 The squiggle lines, rectangles on the south side of Bear Island, and figures on the northeast end of the island
were all dredged to provide open water.

         However, there are contrary opinions as to the permanence of the water in the lake. From
         an April 28, 1964, memorandum titled “Grays Lake development and operational
         concept” to the Director of the Bureau of Sports Fisheries and Wildlife, from the
         Regional Director in Portland, Oregon is this language:

                   It is recognized that there will be years of high and low water yield in the Grays
                   Lake basin. We experience this same phenomenon at the Malheur, Klamath
                   Marsh, and many other established refuges. The history of Grays Lake, however,
                   is good. The lake has not been dry in the memory of the oldest residents and has
                   consistently provided excellent waterfowl habitat.

         In addition, this October 2, 1953, memorandum, from the Assistant Regional Director to
         the Regional Director, Bureau of Sports Fisheries and Wildlife, Portland, Oregon, has this
         about a field trip to Grays Lake where he met local residents:




      83     Grays Lake Study
                    Mrs. Johnson’s mother commented that she had lived in the area for 59 years and
                    that they formerly boated on the lake. This is impossible now because of the
                    dense growth of tules and bulrushes on the lakebed. It is the belief of many of the
                    local people that the lakebed elevation has raised because of the decaying
                    vegetation.

           Bison: Bison remains have been found scattered throughout the lakebed. J. C. Smith,58 a
           local landowner, is familiar with at least ten skeletal remains he found on what he
           considers to be his share of the bed, ¼ to ½ mile beyond the meander line, and three
           skulls he found with Fish and Wildlife personnel off the easterly end of Bear Island in the
           late 1960’s. Rod Drewien59 related to us that during the early 1970’s, when they used
                                                                               helicopters for waterfowl
                                                                               inventory counts, he remembers
                                                                               seeing 30 remains in the
                                                                               lakebed. Presumably, these
                                                                               bison were grazing the lakebed
                                                                               and either died of natural causes
                                                                               or became trapped in a bog
                                                                               hole.60 Today cattle will wander
                                                                               from the west side of the lake
                                                                               herd to graze with the east side
                                                                               of the lake herd.

           Figure 52 Cattle grazing in the lakebed. From the 1966 Refuge annual report.




58
     Personal interview on September 28, 2010.
59
     Personal interview on September 28, 2010.
60
  The local understanding is that bison wintered over in the Grays Lake valley because of the abundant forage.
(Comment from J.C. Smith). This lasted until around 1860 when hunting pressure removed the bison from the area.
Caribou History, p. 9. However, 1830 is reported elsewhere as the date of the last bison. Grays Lake National
Wildlife Refuge, a history and description of the refuge found in the files of the Grays Lake Refuge Headquarters
Office, with a handwritten date of 1969, p. 2.


        84    Grays Lake Study
     2.	 Driving on the bed: J. C. Smith said he has driven a two-wheel drive farm tractor from
         his property on the southeasterly end of the lake to Bear Island. Vehicle movement and
         grazing in the lakebed is documented by photographs from the annual Fish and Wildlife
         reports to include dynamite use in an attempt to create open water.




Figure 53 Jeep used to drive around on the lakebed. This photo was taken when the bed was frozen. 1967 Refuge annual
report.

     3.	 Fires: Fires have burned the tules in the lakebed.61 J.C. Smith remembers lighting strikes
         causing fires in the lakebed. See the photography from the annual Fish and Wildlife
         Reports with pictures when the northerly half of the bed of the lake burned.62 No records


61
  Douglas Sibbett, “The Grays Lake Fire – Oct. 1913, The People of the Hills, Larry Whiting Publishing, Idaho
Falls, Idaho, Vol. III 1975. “This year 1913 was an exceptionally dry year and the south end of the Lake was almost
dry and full of tules and bull rushes. These made a good fire trap.”

Apparently, a fire was set to cover up the murder of a man named Higgins, a trapper who lived on Bear Island. The
entire valley turned out to fight the fire with backfires and to keep the fire in the lake away from the houses, corrals,
and hay stacks.
62
  Grays Lake National Wildlife Refuge, pgs. 5-6. On October 11 and 12, 1966 the northerly half of the lakebed
burned (7, 250 acres).

      85    Grays Lake Study
           were found of Indians intentionally and periodically setting fires to clear the lakebed of
           bulrushes.63




Figure 54 1966 Annual Report contains the October 1966 photography of the fire in the lakebed.

       4.	 Roads: The original survey plats, from 1875 and 1885, show roads completely
           surrounding the lake. These wagon roads are called for in the notes and were used for
           transporting supplies from Soda Springs to the various Gold Mining camps around
           Caribou Mountain on the northeasterly side of the lake, e.g., Caribou City, Wayan,
           Herman, and Gray. The amount of traffic should have been substantial as there were up
           to 2500 people living in the valley at the peak of the mining activities.64 It seems
           reasonable to expect that with this large population, if the lake was usable for commerce,
           it would have so been used for commerce and a record of that use would exist.




63
  Peter E. Wigand, Local and Regional Fire History and Its Environmental Context as Reconstructed From
Sediment Cores at Grays Lake, Idaho, Research by the Desert Research Institute for the U.S. Fish and Wildlife
Service, June 15, 1999. From the Summary on p. 24 “[F]ire was a more important component of the marsh between
4,000 and 7,000 years ago than it has been the last 4,000 years” and “Finally, the role of human populations in
promoting fire in the marsh is impossible to determine.” [Results of core samples on the north and south sides of
Bear Island].
64
     Various census reports with Chinese and non-Chinese counted separately.

        86    Grays Lake Study
                                   In Its Ordinary Condition

The obvious question is how much effect has the irrigation facilities on the northerly outlet and
Clark’s Cut on the southwesterly side of the lake had on the water level and ordinary high water
mark around the perimeter of the lake.


From the Manual of Surveying Instructions, 2009:


       8-102 Avulsive changes to lakes are rare. A lake may be suddenly drained when a river
       erodes its way into the bed of the lake, or when a lake formed by an active glacier
       blocking a side stream suddenly undermines the glacier, allowing the lake to drain, or
       conceivably, due to an earthquake. Where land is inundated due to damming or other
       such direct manmade improvements, the boundary remains fixed at its last previous
       location just prior to the avulsion. Lakes that dry up due to climatic changes or other
       more general human influence are not avulsed—the lake shore was not breached.


Because of the shallow gradient, the best strategy for identifying an avulsion, with a resultant
fixed boundary, is a comparison of the survey records versus current conditions. Most important
are three sets of records. These are the original surveys by David (1875) and Glover (1885), the
1906 A.P. Adair survey, and the 1925 Young survey. These are then compared to recent and
current imagery. The following image is 2004 National Agriculture Imagery Program (NAIP)
with an overlay of the BLM Geographic Coordinate Database (GCDB) layer georeferenced on
the image. The GCDB shows the surveyed lines of the official survey record in the Public Land
Survey System (PLSS). It is a latitude and longitude coordinate database for PLSS corners.
These coordinate values are sometimes observed values, usually from GPS observations but
most commonly are calculated from least squares adjusted bearings and distances found in the
latest official record. These adjustments are made between the small number of corners actually
observed as fixed control. As later federal surveys recover original corners, replace missing
corners and return newer and more precise bearings, distances, and positions for the corners, the
linework and adjustments will change slightly based on that newer information. The majority of




    87    Grays Lake Study
the linework shown around Grays Lake is, however, based on the original surveys as few new
surveys and measured controlling corners exist.


We found that the original surveys had distortion in them Of particular interest are the meanders
around Bear and Bishop Islands, and the meanders from the center of the easterly side of the lake
down to those on the Beavertail Point on the southerly side of the lake. It is apparent that there is
a shift in the original record information. This is obvious when comparing how the original
meanders overlay Bear Island.




Figure 55 2009 NAIP imagery with the GCDB georeferenced, in magenta, on the image.

The island has not moved. The computed position of the meanders representing the island, while
in the proper shape, are shifted slightly southerly and easterly. This is also apparent where there
are currently visible features on the ground, such as peninsulas, along the southeasterly portion


     88     Grays Lake Study
of the lake in the next picture. Again, the original meanders show the proper configuration but
are shifted southerly and easterly.




Figure 56 Similar shift in the georeferenced meanders in the southeast portion of the lake. The features are shown in the
correct configuration but shifted south and east as are those on the islands in the previous picture.



This is not a major problem falling into the category of grossly erroneous or fraudulent fieldwork
resulting in the original meanders becoming a fixed and limiting boundary. Rather it is a
recognition that before the day of satellite positioning, modern computers, lasers, and other
measurement methods now used, the original surveyors had to do their calculations in tents with
pencils and sine and cosine tables. This might be nothing more than an improper calculation for
a tie across the water. It may also reflect a regional least squares adjustment, in the six
townships covering the lake, due to a lack of sufficient found and measured corners to control
the adjustment.


We selected a dozen photo identifiable points around the lake to use as control in an adjustment
of the six townships. These points are then held as fixed with the record bearings and distances

     89     Grays Lake Study
adjusted between the points. This commonly used process is akin to “rubber sheeting” an image
to fit existing road intersections, fence lines, and other identifiable features on the image. The
points we chose are scattered around the shore of the lake except for three points on the two
islands. Features used included the ends of inlets, salient points, and prominent and permanent
topographic features.




Figure 56 The blue triangles are control points selected to rubber sheet between. The red lines are the original meanders
and section lines. The yellow lines are township lines.


     90     Grays Lake Study
The result is a set of original meanders that fits the current vegetation line remarkably well.
This indicates that not only were the original meanders well executed but also that there is no in-
lake avulsion resulting from Clark’s Cut.


In the 2010, Mike Broce, cadastral surveyor, and crew, surveyed two miles of new meanders
using the vegetation line. They provided field measurements for elevation and location of new
meanders.




Figure 57 Approximate location of a special meander corner in section 14, T. 4 S., R. 43 E., GCDB designation
540460WC. Looking southerly along the fence line. Standing in hay with bulrushes just beyond the fence corner on the
right or westerly side of the fence.

Among their findings are a difference of 3.64 feet between the benchmark elevations used by
Young in 1925 and today’s satellite observed elevations (current elevation is higher) for the same
two benchmarks Young used. This is explained by the adjustments in the datums, at least two,
since 1925. When the old and current datums are related there are two interesting findings.
First, the high water stains at Clark’s Cut headgate and the Willow Creek dam were
approximately 3 inches different. This equates with information from Young’s survey notes and
correspondence that found the northerly end of the lake to be higher due to the influx of water




     91     Grays Lake Study
from Willow and Eagle Creeks.65 Secondly, sample elevations were taken for the GPS
observations of the new meanders done during 2010.                 The new meanders’ elevations, when
compared to the high water stains show that the vegetation change, from upland (hay) to aquatic
(bulrush) is slightly below the high water stains, by one or two inches. Given the subterranean
irrigation, this is an indicator that the ordinary high water line the original surveyors surveyed
makes sense. The following image shows these new meanders and the old meanders as well as
the vegetation change.




Figure 58 2009 NAIP imagery with the adjusted original meanders (red) and the 2010 meanders (yellow).




65
  The water from the creeks has to flow through the thick bulrush growth to get to the south end of the lake to
achieve an equipotential surface and stacks up because of the damming effect of the tule growth.


     92     Grays Lake Study
The new meanders are more sinuous and generally closer to the lake except on the northerly end
where they cross the original meanders. Several things are happening. First, this may be nothing
more than a difference of opinion on what feature, i.e., vegetation change, to follow. Second,
there may have been slight changes due to erosion or accretion over the last 125 years. Finally,
the difference may result from today’s data collection methods. With GPS technology, positions
can be collected every second, every ten feet, or when told to collect a particular position.
Because of the ease of operation, new meanders usually reflect more of the ins and outs of the
edge of the water or vegetation than do the original surveys. Before calculators and satellites, the
original surveyors chorded land and water and lengthened their meander courses. This cut down
on the amount of calculations they had to make. In particular, notice the more than twenty chain
(one quarter mile) original meander course just below the “11” section number above. In that
same length of shoreline, the 2010 meanders have about 16 courses. We commonly see this
difference between new meanders and original meanders where the original surveyors tended to
smooth out the number of courses to reduce their number of calculations.




    93    Grays Lake Study
Figure 59 Original meanders in the southwest portion of the lake rubber sheeted between selected control points.



Regardless, once the original surveys were approved, and failing a showing of omitted lands, the
original monuments control the location of the lines. Here the original monument is the line of
ordinary high water, an ambulatory boundary so some changes over the decades are expected.
Because the majority of the lake lacks defined banks, the vegetation line is the best indicator of
the line of ordinary high water, which is the actual boundary between the bed and the upland.
The meanders collected, either by the original surveyor or a later surveyor, are that surveyor’s
best effort at representing that actual boundary. The meanders are only collected so that they can
show the approximate location of the actual boundary on the survey plat.



     94     Grays Lake Study
                         For Commerce (Trade and Travel) On Water

Trade and travel on Grays Lake has not been shown nor has the susceptibility of trade and travel
been shown. There has been isolated boat use for muskrat trapping but it was not from Point A
to Point B. The small amounts of open water were not used for transporting cattle or supplies
from or to the mining camps. Rather there existed a road network surrounding the lake where
wagons moved merchandise. Instead of water transport, there is a history of the lake burning,
bison and cattle grazing the lake, and recent attempts to create open areas in the marsh by
explosions or dredging for more open water for waterfowl nesting and habitat. Without open
water, there cannot be water surface transportation of goods nor travel.

                                       At the Date of Statehood

Fortunately, the original surveys are reasonably close in time to the date of statehood. They
show their representation of the ordinary high water mark prior to any modification of the lake
level by irrigation works. The 1906 A.P Adair survey, filed for the water storage application,
shows the original meanders. It also shows the expected expansion of the lake if the surface
elevation was to be increased by blocking the outlets with dams or irrigation headgates resulting
in a higher than natural engineered elevation. The 1925 Young survey is a verification of these
previous records. What we see today is that the original meanders follow the outline of the lake
per the current vegetation line, which line is the best indication of the line of ordinary high water
given that there are no obvious erosive banks around the lake. As shown above in the 2010
survey comparison, the current vegetation lines are similar to the reported lines from the original,
1906, and 1925 surveys and therefore we know that conditions have not significantly changed
from pre-statehood conditions. In other words, while there is now a drawdown schedule, that
schedule has resulted in a series of steps that appear to emulate natural conditions through the
growing season. As shown in figure 56 above, the original meanders are in a remarkably similar
configuration to current conditions.




    95    Grays Lake Study
XI.      Conclusions

      1.	 The lake is not currently navigable for commerce, trade and travel, nor was it used for or
         susceptible for use for commerce, trade and travel, at the date of statehood, as required by
         The Daniel Ball. Records prior to and after statehood describe overland travel around the
         lake and not on it, a marsh choked with tules, the lake burning, bison remains in the
         marsh, lack of fish and other indications that the marsh was and is not commercially
         viable for transportation of goods even during the short high water period in the spring.
         Furthermore, there is a good relationship between the surveys executed before and after
         statehood with today’s conditions. This indicates that today’s conditions are reflective of
         the conditions at statehood. Thus, after viewing Grays Lake today, it is obvious the lake
         or marsh is not a navigable water body.




      2.	 There are no omitted lands subject to a federal claim. The original surveyors, David and
         Glover, reasonably concluded that Grays Lake was more of a lake than a swamp and
         should be meandered, thus segregating the bed from the upland. This original meander
         line location was subsequently adopted by A.P. Adair in his 1906 survey and Young in
         his 1925 survey. The 2010 field meanders, using the current vegetation line, and then
         placing those meanders plus the original meanders on current imagery all show a similar
         location and configuration to the obvious vegetation change. Field measurements of
         water surface, headgate, and gaging station elevations, a lack of defined banks, the
         managed drawdown schedule (designed to protect natural condition), and the descriptive
         record of the valley over the decades all support a finding the original meanders were
         reasonable and that the ordinary high water mark is in a similar location today to those
         prior to statehood. Because the original meanders location and today’s meanders are
         similar, this then results in the conclusion there has been no in-lake avulsion as there has
         been no change.




       96   Grays Lake Study
     3.	 The State of Idaho has no interest in the bed of the lake despite the language in their
        navigability report opining that a portion of the lake may be navigable (this would be the
        southeasterly open water and open water at the north end). This is contrary to their
        admission in item five that the lake has not been used for nor probably ever will be used
        as a highway of commerce and the conclusion by the author of the report stating he could
        find no data that would substantiate a firm claim by the State that the lake is navigable.
        They continue in item 9 by saying the riparian owners have a good case for bed
        ownership, given previous court decisions. This lays to rest the question that the use of
        the lake as a storage reservoir, with the Indian succession to the State storage permit
        originally issued to Barzilla Clark, has removed the upland riparian rights beyond a mere
        storage easement.




     4.	 Since the lake is non-navigable, the lakebed is owned proportionately by the upland
        owners, as an incident of their riparian rights. This ownership will result in a series of pie
        slices extending into the center of the lake from the sidelines of the upland parcels.
        However, both Bear and Bishop Islands also have riparian rights (Indian country). The
        ownership of the islands’ portions of the bed will intersect the bed ownership rights of the
        parcels along the shoreline resulting in truncated bed ownership pie slices in those places
        where the competing upland and island interests intersect.




     5.	 Fences run into the lake beyond the original meander lines. This indicates the presence
        of agreed to boundaries between the upland owners. Since federal agencies have been
        acquiring private lands, these agreed to boundaries might control except for those
        locations where non-patented federal interests (Indian or BLM holdings) will control the
        boundaries of bed ownership.66


66
  October 10, 2010, e-mail from Ruth Shea where she relates a conversation with J.C. Smith. In that conversation,
J.C. said that each upland owner understood they each had a pie slice out into the bed. Those were firm boundaries
and you only hayed, grazed, and trapped on your slice. Huckleberry patches in the hills were similarly treated as
another example of individuals recognizing other individual’s interests.

      97    Grays Lake Study
       An official platting of the lakebed division will require collection of new meanders
       around the entire lake and the two islands. This can be accomplished by collection of
       data from orthophotos such as current NAIP imagery. However, the existing fences will
       need to be field located since they do not show on the imagery as well as documentation
       of their age or age of location and whether they are agreed to boundaries. Then a
       mathematical solution will compare the location of the existing fence or field lines, the
       agreed to boundaries or deed lines, with the new model. This, however, is a future survey
        issue outside the scope of this report, which only deals with a navigability opinion and
        avulsion and omitted lands decisions.




Mark Smimov, Cadastral Surveyor


Certification: This study and conclusions represents the records and documents compiled under my
direction and control and in conformance with the requirements of the Department of the Interior Manual
ofSurveying Instructions, 2009. The finding of non-navigability is an administrative opinion. The
findings of no omitted lands and no in-lake avulsion are decisions.




     98 ~   Grays Lake Study
XII.    Resources bibliography:


   1.	 Copy of an undated, unsigned BLM Memorandum from the Area Manager, Soda
        Springs, to the District Manager, Idaho Falls, circa 1980, with Subject Line: Grays Lake
        Geothermal Exploratory Lease Application; Wildlife Report – Environmental
        Assessment Record. This copy was located in the BLM Pocatello Field Office Grays
        Lake realty files.
   2.	 B. Robert Butler and Kenneth Anderson, Final Report, Class I Cultural Resource
        Inventory of the Grays Lake national Wildlife Refuge, copy of a report prepared for the
        U.S. Fish and Wildlife Service, Southeast Idaho Refuge Complex, B.R. Butler
        Associates, July , 1981
   3.	 Caribou History, A bound unattributed manuscript in the Idaho section of the Soda
        Springs municipal library.
   4.	 Lula Barnard, Faunda Bybee, and Lola Walker, Tosoiba, Daughters of Utah Pioneers,
        Camp Mead, Soda Springs Idaho, 1984, pgs. 113-115.
   5.	 Paul Karl Link and E. Chilton Phoenix, Rocks, Rails, and Trails, Idaho State University
        Press, 1994.
   6.	 Scanned images of the Field notes and plats for the original General Land Office contract
        surveys in this area. The original plats and notes are in the BLM State Office building at
        1387 S Vinnell Way, Boise, and available but for ease of use, digital copies are viewed
        unless the image is fuzzy for a particular word or number and then the originals are used.
   7.	 Thomas R. Walenta, SUMMARY REPORT ON TITLE TO BEDS AND USE OF
        WATER OF NAVIGABLE STREAMS AND LAKES IN IDAHO, a Report to the
        Subcommittee on High Water Mark Legislation of the Idaho Legislative Council, 1966.
   8.	 James A. Simpson, River and Lake Boundaries, Plat Key Publishing, Kingman Arizona,
        1994.
   9.	 Instructions of the Commissioner of the General Land Office to the Surveyors General of
        the United States Relative to the Survey of the Public Lands and Private Lands Claims,
        Washington D.C., May 3, 1881.
   10. Instructions to the Surveyors General of the United States Relating to Their Duties and to
        the Field Operations of Deputy Surveyors, Washington D.C., 1864.

       99   Grays Lake Study
11. C. Albert White, A History of the Rectangular Survey System, Washington D.C., 1983.
12. Personal interview with J. C. Smith, a local landowner on the southeasterly end of the
   lake, since 1948.
                                        S
13. Personal interviews with Ruth Shea. 	 he has provided numerous documents, contacts,
   and background information by phone, e-mail, and personally.
14. Personal interview with Rod Drewien, husband of Ruth Shea and former director of the
   whooping crane relocation project at Grays Lake.
15. Personal interview with Eliza Lei Call Sibbett, resident of the valley her entire life.
                        L
16. Jane M. Beiswenger, 	 ate Quaternary Vegetational History of Grays Lake, Idaho,
   Ecological Monographs, 61(2), 1991.
17. Geraint Humpherys, MEMORANDUM Concerning the Right of the United States , to
   Use Water from Gray's Lake, Idaho, for its Fort Hall Indian Irrigation Project, December
   1, 1934.
18. Grays Lake National Wildlife Refuge, a history and description of the refuge found in the
   files of the Grays Lake Refuge Headquarters Office, with a handwritten date of 1969.
19. McCoy Creek Watershed Analysis, Caribou – Targhee National Forest, Soda Springs
   Ranger District, 2007.
20. http://www.pinedaleonline.com/news/2005/04/LanderCutoffRoadofth.htm
21. April 28, 1964, memorandum titled “Grays Lake development and operational concept”
   to the Director of Sports Fisheries and Wildlife from the Regional Director in Portland,
   Oregon.
22. October 2, 1953, memorandum, from the Assistant Regional Director to the Regional
   Director, Bureau of Sports Fisheries and Wildlife, Portland, Oregon.
23. Manual of Surveying Instructions, 2009, Washington D.C.
24. Sverdrup & Parcel and Associates, Inc., Consulting Engineers, ADVANCE PROJECT
   PLANNING FOR MARSH REHABILITATION AT GRAYS LAKE NATIONAL
   WILDLIFE, REFUGE NEAR WAYAN, IDAHO, December, 1985, p. 5.
25. Paul E. Steele, Masters of Science thesis, University of Idaho, Factors Affecting
   Waterfowl Production at Grays Lake, Idaho, 1952.
26. Roger M. Williams, Masters of Science thesis, University of Idaho, A Preliminary
   Investigation of the Muskrat Population of Grays Lake, Idaho, 1950.

100   Grays Lake Study
27. Douglas Sibbett, “The Grays Lake Fire – Oct. 1913, The People of the Hills, Larry
   Whiting Publishing, Idaho Falls, Idaho, Vol. III 1975.
28. James A. Simpson, Riparian Report on Grays Lake Wildlife Refuge, Kingman Arizona,
   May, 2000.
29. Idaho Department of Lands, Operations Memorandum 1700 “Navigable Waters in
   Idaho,” effective date May 1, 2003.
30. Grays Lake Navigable or Non-navigable. 	A report by L.D. Burdick, Department of
   Lands Eastern Idaho Area Supervisor, September 23, 2000. This report was used for
   various meetings and includes a large set of attachments referred to in the footnotes. It
   comes in a large three ring binder with copies of the full report and attachments found at
   the Department of Lands in Boise and Grays Lake Refuge Headquarters Office. Another
   copy of the report without attachments was provided by the Field Solicitor’s office in
   Boise. Page 3 of the 12 point list has a conclusion that was not a part of the versions of
   the copies of the report obtained. A different page 3 was emailed by Ruth Shea. She has
   two copies, one faxed to her, included in this report, and another that she had obtained
   from the author of the report. Both contain the Conclusion and are dated and signed.
31. January 23, 2001, letter from Clive Strong, Idaho Attorney General to Ron Swan,
   Assistant Regional Solicitor.
32. Memorandum No. 1 between Grays Lake National Wildlife Refuge and Bonneville and
   Caribou Counties, 1965.
33. Memorandum of Agreement between Bureau of Indian Affairs Department of the Interior
   and Bureau of Sport Fisheries and Wildlife Department of the Interior Relating to the Use
   of Lands and Waters at Grays Lake located in Bonneville and Caribou Counties Idaho,
   October 8, 1964, signed by the Commissioner of Fish and Wildlife, Clarence F. Pautzke,
   Deputy Commissioner of Indian Affairs, John O. Crow, and Secretary of the Interior,
   Stewart L. Udall.
34. Memorandum Legality of Bureau of Indian Affairs’ Permittee Control Over Lands Near
   Grays Lake National Wildlife Refuge, and Effect of Proposed Deepening of Portion of
   Grays Lake, from the Regional Solicitor to the Regional Director, FWS, Portland,
   received by the BLM on Aug 6, 1981.



101   Grays Lake Study
35. December 19, 1963, M-36664 Proposed establishment of a refuge for migratory birds at
   Grays Lake, Idaho, from the Solicitor to the Assistant Secretary for Fish and Wildlife.
36. August 10, 1964, Supplement to Solicitor’s Opinion M-36664 of December 19, 1963.
37. Peter E. Wigand, Local and Regional Fire History and Its Environmental Context as
   Reconstructed From Sediment Cores at Grays Lake, Idaho, Research by the Desert
   Research Institute for the U.S. Fish and Wildlife Service, June 15, 1999.
38. Charles C. Sperry and A.C. Martin, June 10, 1929, field notes by U.S. Biological Survey.
   http://www.npwrc.usgs.gov/projects/grayslk/histacct.htm.
39. History/Cultural Overview: Master Plan Report for Grays Lake National Wildlife
   Refuge, Wayan, Idaho, U.S. Fish and Wildlife Service, 1982, pgs. 3.1-3.2 & 9.1-9.24.
   http://www.npwrc.usgs.gov/projects/grayslk/overview.htm.
40. Jane E. Austin et al, “Effects of Habitat Management Treatments on Plant Community
   Composition and Biomass in a Montane Wetland”, Joint report from U.S.G.S., E.P.A.,
   and U.S.F.W.S., Wetlands, Vol. 27 No. 3, September 2007.
41. Jane E. Austin et al, Evaluation of Management Practices in Wetland Meadows at Grays
   Lake national Wildlife Refuge, Idaho, 1997-2000, Joint report from U.S.G.S. and
   U.S.F.W.S., U.S. Geological Survey, Northern Prairie Wildlife Research Center,
   Jamestown, North Dakota.
42. Joseph Ball et al, Population and Nesting Ecology of Sandhill Cranes at Grays Lake,
   Idaho, 1997-2000, U.S. Geological Survey, Montana Cooperative Wildlife Research
   Unit, Missoula Montana, February 2003.
43. November 9, 1965, Letter from the State Director, Idaho, to the Director, Bureau of Land
   Management, Subject Line: Determination of navigability of Grays Lake, Idaho.
44. January 25, 1966, Letter from the Chief, Division of Engineering to the State Director,
   Idaho, Subject Line: Grays Lake.
45. Osborn Russell, Journal of a Trapper or Nine Years Residence among the Rocky
   Mountains Between the years of 1834 and 1843 Comprising A general description of the
   country, climate, Rivers, Lakes, Mountains, etc. The nature and habits of Animals,
   Manners and Customs of Indians and a Complete view of the life led by a Hunter in those
   Regions. Published versions available from multiple sources, this internet source came
   from: http://www.xmission.com/~drudy/mtman/html/ruslintr.html.

102   Grays Lake Study
46. March 7, 2008, “Notice of Intent to File Suit Pursuant to Quiet Title Act” letter from
   Lawrence G. Wasden, Idaho Attorney General to Secretary of the Interior, Dirk
   Kempthorne.
47. October 22, 2001, letter from Dirk Kempthorne, Idaho Governor, to Gale Norton,
   Secretary of the Interior.
48. 1929 Engle report, Cabinet 7, Drawer C, Ft. Hall Irrigation Project office vault, Gray’s
   Lake Description.
                                               C
49. Ellen Carney, Way Out in Grays Lake, 1992. 	 opy reviewed in the McCain Collection at
   Boise State University library.
50. Engle Report, U.S. Indian Irrigation Service, District 2, Annual Report, June 30, 1924,
   copy in the Ft. Hall Irrigation Project vault.
51. December 20, 1927, James Young report to Acting Supervising Engineer, District #2.
52. Agassiz National Wildlife Refuge brochure, May 2000.




103   Grays Lake Study

				
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