CLARK WADDOUPS, District Judge.
Plaintiff Kane County, Utah seeks to quiet title to fifteen roads that cross lands owned by the United States.
Kane County filed this action against the United States on April 25, 2008, pursuant to the Quiet Title Act, 28 U.S.C. § 2409a. In its initial complaint, Kane County sought to quiet title to roads called Mill Creek (including the Tenny Creek and Oak Canyon segments) and Bald Knoll (including the Old Leach Ranch segment). On November 10, 2008, Kane County amended its complaint to assert claims for additional roads, namely, Skutumpah, Sand Dunes, Hancock, Swallow Park/Park Wash, North Swag, Nipple Lake, and the four Cave Lake roads.
Prior to the State's involvement, the United States moved on March 9, 2009, to dismiss claims for five of the roads at issue due to lack of subject-matter jurisdiction. Specifically, the United States contended it had not interfered with or denied the existence of an R.S. 2477 right of way for Skutumpah, Tenny Creek, Oak Canyon, Sand Dunes, or Hancock. Consequently, it contended Kane County lacked standing because there was no case or controversy. It further asserted it had not disputed title, and therefore, had not waived its sovereign immunity under the Quiet Title Act. The court disagreed and issued its ruling from the bench, but stated it would issue a written decision at a later time. This memorandum decision sets forth the
After the court denied the motion, the United States filed its Answer. It did not assert there were problems with subject matter jurisdiction for any other road at issue in this case. One week before trial, however, the United States asserted in its Trial Brief that the same problems about subject matter jurisdiction also existed for the four Cave Lake roads. Trial Brief, 39-42 (Dkt. No. 164). Because a challenge to subject matter jurisdiction may be made at any stage of a legal proceeding, the court also addresses that challenge. See Federal Rule Civil Procedure 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").
Following the trial, SUWA submitted a brief that challenged subject matter jurisdiction for all roads at issue in this case on the ground that the statute of limitations had run before Kane County filed suit. SUWA has the status of an amicus curiae in this case. "Amicus curiae is a latin phrase for `friend of the court' as distinguished from an advocate before the court." Newark Branch, NAACP v. Harrison, 940 F.2d 792, 808 (3d Cir.1991) (quotations and citation omitted). Because an amicus curiae "participates only for the benefit of the court," and "is not a party to the litigation," the court has the sole discretion "to determine the fact, extent, and manner of participation by the amicus." Id. (quotations, citation, and alteration omitted).
Here, the statute of limitations has already been addressed by the parties, with the United States' stipulating that it had not run. Kane County v. United States, No. 2:08-cv-315, 2011 WL 2489819, at *7-8, 2011 U.S. Dist. LEXIS 66218, at *25-26 (D.Utah June 21, 2011); see also Pretrial Order, at 26 (Dkt. No. 174). The Tenth Circuit has concluded, however, that the Quiet Title Act's statute of limitations is a jurisdictional bar rather than merely an affirmative defense. Rio Grande Silvery Minnow v. Bureau of Reclamation, 599 F.3d 1165, 1175-76 (10th Cir.2010) (citations omitted). Consequently, the court must "satisfy itself of its power to adjudicate [this] case ... at every stage of the proceedings." State Farm Mut. Auto. Ins. Co. v. Narvaez, 149 F.3d 1269, 1271 (10th Cir.1998) (quotations and citation omitted). Although the parties have already addressed the statute of limitations, the court elects to address it again to assure itself of jurisdiction.
The jurisdictional assertions made by the United States and SUWA are highly fact dependent and involve cases and other matters that arose prior to this lawsuit. Because the court's analysis depends upon those facts, it sets them forth below.
As stated above, Kane County claims ownership of the roads at issue in this case based on R.S. 2477. The text of the Act states: "And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932. Through this Act, Congress authorized the public to enter federal lands, create roads across the land, and obtain a vested right-of-way. The law remained in effect from 1866 until October 1976, when it was repealed by the Federal Land Policy and Management Act of 1976 ("FLPMA"), Pub.L. No. 94-579 § 706(a), 90 Stat. 2793. After Congress had repealed it, the Act applied only prospectively. Thus, any valid R.S. 2477 right-of-way existing by October 1976 was grand-fathered in by FLPMA.
FLPMA marked a sea change by Congress. Because no new roads could be created across federal land by the public after 1976, the State and its political subdivisions had to undertake the task of documenting the R.S. 2477 roads that existed across federal land as of October 1976. At the same time, FLPMA required that federal lands, with "roadless areas of five thousand acres or more," be inventoried to determine which areas had wilderness characteristics as defined in the Wilderness Act. 43 U.S.C. §§ 1711, 1782(a). According to the Wilderness Act, an area has wilderness characteristics when "the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain." 16 U.S.C. § 1131(c). It further means "an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation," so that "the imprint of man's work [is] substantially unnoticeable." Id.
On November 1980, the BLM's Final Wilderness Inventory Decision for Utah was published in the Federal Register. See 45 Fed.Reg. 75,602 (Nov. 14, 1980). That inventory designated the Paria-Hackberry region as a Wilderness Study Area. According to SUWA, "[o]ne of the defining elements of wilderness eligibility is the lack of roads." Amicus Brief of Southern Utah Wilderness Alliance, 5 (Dkt. No. 215) (hereinafter "SUWA's Amicus Brief") (citing 43 U.S.C. § 1782(a); Utah v. Babbitt, 137 F.3d 1193, 1213 (10th Cir.1998)). Thus, by designating the Paria-Hackberry region as a Wilderness Study Area in 1980, SUWA contends this provided formal notice to Kane County that the United States claimed an adverse title to Swallow Park/Park Wash and North Swag since those roads were located by or in that region.
Although FLPMA does reference "roadless" areas, the definition of what constitutes a "road" under the Wilderness Act is not necessarily coterminous with a "road" under R.S. 2477. In 1980, the BLM Director for Utah issued an Instruction Memorandum to the BLM District Managers for Utah. In that memorandum, the Director stated the following:
Instruction Memorandum, UT '80-240 (Mar. 6, 1980) (Pl. Trial Ex. 154; Dkt. No. 46, Ex. 2 at 2) (emphasis added).
During the bench trial in this action, Ken Mahoney testified about his work on the wilderness inventory conducted by the BLM. Trial Tr., at 1361 (K. Mahoney). His work occurred during the time period when the above Instruction Memorandum was in effect. See id. at 1361-62, 1400. Mr. Mahoney testified about traveling on the Swallow Park/Park Wash road and North Swag road, which were sufficiently visible to be recorded on his inventory. Id. at 1393-95; see also Pl. Trial Ex. 75.
Moreover, a nationwide instruction memorandum discussed "standards for boundary setbacks along existing roads in designated wilderness areas" and recognized that "the width for some roads R/W established under 2477 ... will exceed the [standard setback]." Id. at 1388 89 (quoting Instruction Memorandum 90-589) (Pl. Trial Ex. 149). "When such overlaps" occur, the BLM was instructed to adjust the Wilderness Study Area "to eliminate the encroachment of such boundaries with the R.S. 2477 right-of-way." Id. at 1389. In Utah, that setback could be as much as 100 to 300 feet to allow for "road maintenance, temporary vehicle pull-off, and trailhead parking." Id. at 1391-92 (citing Statewide Wilderness Final Environmental Impact Statement, Volume 1 (Nov. 1990) (Pl. Trial Ex. 299)). Thus, simultaneously with the Paria-Hackberry designation in the Federal Register and thereafter, the BLM acknowledged that Wilderness Study Areas were subject to prior existing R.S. 2477 roads traversing through such areas.
Besides contending the BLM inventory and Federal Register publication started the statute of limitations running for Swallow Park/Park Wash and North Swag, SUWA also contends the statute of limitations started to run on all the roads at least by June 3, 1991. To support this contention, SUWA cites to the minutes taken at a Board of County Commissioners meeting. The minutes state the following:
Minutes of the Board of County Commissioners Meeting, June 3, 1991 (Dkt. No. 215, Ex. A at 16). SUWA contends the minutes reflect "that the BLM formally notified Kane County ... that it did not recognize the County's R.S. 2477 rights-of-way, and would not recognize them unless the County provided the BLM with certain information to prove the validity of its rights." SUWA's Amicus Brief, at 4.
During this same period of time, however, Kane County continued to exercise control over roads it deemed Class B or D roads. On August 12, 1991, the Commission received a report that a project had been completed on the Hancock road. The Commission authorized the posting of signs regarding speed limits, curves, and the distances to certain locations, including the Coral Pink Sand Dunes. Both the Hancock and Sand Dunes roads are at issue in this lawsuit. The Commission further provided direction about the Warm Creek road project including width, length, and road base materials. See Minutes of the Board of County Commissioners Meeting,
On December 6, 1993, Verlin Smith again met with the Commissioners. Gordon Staker from the BLM was also present. They requested that the Commissioners send a letter to the BLM anytime road work was going to be done on roads within the BLM areas. The Commissioners refused to enter into a written agreement on this issue, but agreed to talk with the BLM periodically. Minutes of the Board of County Commissioners Meeting, Dec. 6, 1993 (Dkt. No. 215, Ex. A at 22). Earlier that year, Kane County had realigned portions of Skutumpah, which resulted in the BLM issuing trespass notices against Kane County. See Complaint, at 4-5 (Case no. 2:96-cv-884) (Dkt. No. 216, Ex. A at 4-5). After Kane County allegedly intruded into wilderness study areas when grading other roads in 1996, the BLM filed suit against the County on October 18, 1996 for "trespass damages for unauthorized road grading." Id. at 3 4.
Notably, the suit did not challenge whether Kane County had an R.S. 2477 right-of-way for Skutumpah or the other roads. The BLM's position was that Kane County had trespassed on federal land regardless of whether the County had a right-of-way. Draft BLM R.S. 2477 Administrative Determinations, Kane County Claim (Dkt. No. 216, Ex. A, at 18). The district court disagreed and required the BLM to make a determination about whether the roads were an R.S. 2477 highway, and if so, the scope of the right-of-way. Id. at 18-19. Only then could it determine whether Kane County had trespassed. The BLM undertook this determination for the Swallow Park/Park Wash and North Swag roads as well because trespass notices also had been issued for them on a subsequent date. See id. at 22. Had the United States determined it held an adverse interest to Kane County's claimed rights-of-way, it could have simply asserted its claim to the whole area. Rather than making such a declaration, however, it undertook an analysis to determine whether Kane County held a valid right to the area where the work had been performed.
On December 6, 1999, the BLM issued a draft report, which found that Kane County had an R.S. 2477 right-of-way for Skutumpah, but not for the new trespass sections. The BLM also found that Swallow Park/Park Wash and North Swag were not R.S. 2477 public highways. It issued its final report in January 2000, but the report was non-binding. S. Utah Wilderness Alliance v. BLM, 425 F.3d 735, 757 (10th Cir.2005) (hereinafter "SUWA") (stating "nothing in the terms of R.S. 2477 gives the BLM authority to make binding determinations on the validity of the rights of way granted thereunder, and we decline to infer such authority from silence when the statute creates no executive role for the BLM").
On June 25, 2001, the district court upheld the BLM's administrative determination and granted summary judgment in favor of the government. See Order (Dkt. No 350 in Consolidated Case No. 2:96-cv-836). Kane County appealed that decision. On September 8, 2005, the Tenth Circuit reversed and remanded because the district court had not conducted a de novo review of the BLM's decision and the BLM had used too narrow of a standard when evaluating whether a route was an R.S. 2477 public highway. On remand, the parties agreed to dismiss the trespass action. See Order of Voluntary Dismissal of Actions Brought by the U.S. (Dkt. No. 456 in Consolidated Case No. 2:96-cv-836).
One month before the BLM sued Kane County for trespass, President William J. Clinton established the Grand Staircase-Escalante National Monument (the "Monument") by Presidential Proclamation 6920. The Proclamation directed the Secretary of the Interior to develop a management plan for the Monument, but expressly preserved all valid existing rights-of-way. On July 29, 1999, the BLM published a proposed management plan. 64 Fed.Reg. 41129 (July 29, 1999). On November 15, 1999, the final management plan was signed, with an effective date of February 29, 2000. See generally 65 Fed.Reg. 10819. The management plan specified what roads were open or closed to vehicular travel within the Monument. It also addressed where off-road vehicles could be used.
In Summer 2003, Kane County removed some of the road signs erected by the BLM on roads claimed by the County to be R.S. 2477 roads. In 2005, Kane County then erected its own signs on some of the roads, stating that the roads were open to off-road vehicles. The Wilderness Society filed suit against Kane County in October 2005, alleging that the County's actions violated the Supremacy Clause. The Wilderness Society sought to enjoin Kane County from adopting ordinances or posting signs on any road closed under the Monument Plan. It further sought to compel Kane County to remove all County signs from federal land that conflicted with federal authority.
On May 16, 2008, the district court granted summary judgment in favor of The Wilderness Society because it found Kane County had violated the Supremacy Clause. Additionally, the district court issued the following injunction:
The Wilderness Soc'y v. Kane County, 560 F.Supp.2d 1147, 1166 (D.Utah 2008) (emphasis added), rev'd by Wilderness Soc'y v. Kane County, 632 F.3d 1162 (10th Cir. 2011). Notably, because Kane County's right-of-way in Skutumpah had only been determined by an administrative action, rather than in a court of law, the district court concluded that Kane County had no established right-of-way in that road. Id. at 1160-61. Consequently, it could not "post signs or otherwise purport to manage" that road.
While The Wilderness Society suit was being litigated, Kane County was involved in another lawsuit with the United States. Kane County filed that suit on November 14, 2005, alleging that the Monument's Transportation Plan was contrary to law because it improperly sought to control the County's rights-of-way. Even roads designated as "open" under the Plan, such as Skutumpah, had restrictions placed on them. Hearing Tr., 6-7, 33 (Dkt. No. 102 in Case No. 2:05-cv-941).
The United States moved to dismiss the complaint. During a hearing on the motion, held on October 26, 2006,
Hearing Tr., at 6 (Dkt. No. 102 in Case No. 2:05-cv-941) (emphasis added). With regards to the restrictions on Skutumpah, the United States stated:
Id. at 10 (emphasis added). The United States then cited to The Wilderness Society case to support that until Kane County had proved its rights-of-way in a court of law, its "unproven assertions of ownership do not create judicially enforceable rights. Id. at 17. The United States made this statement despite acknowledging at the hearing "[t]here are other roads out there and the BLM knows it." Id. at 36. Nevertheless, the United States argued again that if Kane County believed the BLM was interfering with the County's rights or scope of its rights-of-way, the County needed to file a quiet title action. Id. at 37-38.
On January 22, 2007, a second hearing was held on the motion to dismiss. In that hearing, the United States' position was that Kane County lacked standing to assert injury as a result of the Monument's Transportation Plan because the County did not have any duly adjudicated rights-of-way. Hearing Tr., at 4-8 (Dkt. No. 61 in Case No. 2:05-cv-941). Additionally, the United States argued the County had improperly brought the action under the Administrative Procedures Act because "plaintiff's challenges are inherently premised upon threshold adjudications of title." Id. at 8 (emphasis added). Another attorney for the United States then reiterated at the hearing:
Id. at 13 (emphasis added).
When Kane County argued that the Monument's Transportation Plan did cause injury because it impacted its ability to maintain County roads, the United States asserted the County could maintain any road designated as "open" under the Plan. In support of its contention, the United States cited to the following language of the Plan:
Id. at 61 (citing Monument Transportation Plan, at 47) (emphasis added).
The district court adopted the United States' arguments and dismissed Kane County's action. See generally Kane County v. Kempthorne, 495 F.Supp.2d 1143 (D.Utah 2007), aff'd by Kane County
Id. at 1157 (citation omitted) (emphasis added). In further keeping with the United States' position, the court stated the property interests in question had to be brought under the Quiet Title Act. Id. at 1159. Thus, at the time Kane County filed its Amended Complaint, two district court decisions informed Kane County that it could only proceed on its claims through a quiet title action, and that until its rights were adjudicated in a court of law, it had no recognized R.S. 2477 rights-of-way.
Some of the roads at issue in this lawsuit are not located within the Monument. They nevertheless are still located on land managed by the BLM and are subject to the federal Kanab Field Office Record of Decision and Approved Management Plan (the "Kanab Field Plan"). The Kanab Field Plan was approved on October 31, 2008. See 73 Fed.Reg. 64,983 (Oct. 31, 2008); see also Declaration of Harry Barber, ¶ 2 (Mar. 9, 2009) (Dkt. No. 69, Ex. I) (hereinafter "Barber Decl."). The following roads are subject to that Plan: Hancock, Sand Dunes, part of Skutumpah, Bald Knoll, Old Leach Ranch, Mill Creek, Tenny Creek, Oak Canyon, and the four Cave Lake roads. The Plan states it "does not affect valid existing rights." Kanab Field Plan, at 17. It also states it "does not adjudicate, analyze, or otherwise determine the validity of claimed rights-of-way." Id.
Nevertheless, like the Monument Plan, the Kanab Field Plan regulates transportation. During development of the transportation management plan, the Kanab Field Office "conducted a complete route inventory in 2005 and 2006 to develop a route baseline for use in the planning process." Kanab Field Plan, Appendix 7, at A7-1. The Kanab Field Plan incorporates maps to show which routes are open, closed, or limited for motor vehicle use.
Map 9 shows areas that are "open to cross-country motorized vehicle use, closed to such use, and open to motorized vehicle use on designated routes." Barber Decl., ¶ 4 (Dkt. No. 69, Ex. I). Map 10 shows the specific routes that are open, closed, or limited for motorized vehicle use. Id. The Kanab Field Plan specifies the approved management plan "designat[es] all BLM lands as open, closed, or limited," and "[n]atural and cultural resource protection is ... accomplished by limiting motorized travel to the routes designated in the [approved management plan]." Kanab Field Plan, at 29 (located at http://www.blm.gov/ ut/st/en/fo/kanab/planning/rod_approved_ rmp.html) (emphasis added). Because motorized travel is limited to designated routes, if a route is not shown then motorized travel is not permitted on that route.
Hancock, Sand Dunes, and Skutumpah are not listed on Map 10, which is the map that shows the designated routes. Consequently, when Kane County filed its Amended Complaint in November 2008, and a motion to amend on January 5, 2009, the roads had the status of "closed." After Kane County raised this issue, the BLM published additional maps on its website on approximately January 30, 2009. Id. ¶ 8. The purported purpose of these additional maps is to show open
In The Wilderness Society, the district court held the following:
560 F.Supp.2d at 1161-62 (quotations and citation omitted) (emphasis added). The Kanab Field Plan sets forth the planning process for that management plan. It states that modifications to the route system may occur, but such modifications would require prior monitoring and a NEPA analysis. Kanab Field Plan, at 19-20; see also id. at 42 ("Plan amendments and revision are accomplished with public input and the appropriate level of environmental analysis.").
The four Cave Lake Roads are designated as "open" under the Kanab Field Plan. Consequently, the United States contends there is no case or controversy because it has not interfered with Kane County's rights-of-way. Kane County asserts the contrary based on actions taken by the BLM in July 2008. On July 25, 2008, the BLM issued Title V permits to a private entity for three of the Cave Lake Roads (K1070, K1075, and K1087). See Def.'s Trial Exs. II, JJ, & KK. In exchange for payment of rental fees to the BLM, the Title V permits granted the private entity a right-of-way over the roads and allowed for development of them. See id. ¶¶ 3, 4(e), & 4(h). The permits state they are "not intended to extinguish or limit any R.S. 2477 right-of-way that Kane County may have." Id. ¶ 1. Consequently, if a road were found to be an R.S. 2477 right-of-way by a court or the Secretary of the Interior, the permits state the "Title V grant would be superseded thereby and automatically terminate." Id. The three permits are in effect until December 31, 2037.
"A motion to dismiss for lack of subject matter jurisdiction" under Federal Rule of Civil Procedure 12(b)(1) may take one of two forms." Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1272 n. 1 (10th Cir.2012). One form is a "facial attack" that challenges jurisdiction based solely on the allegations of the complaint. Id. (citation omitted). The second form is a "factual attack" which "goes beyond the
Both the United States and SUWA have presented evidence outside of the pleadings. Accordingly, they have made a "factual attack" on subject-matter jurisdiction. Under such circumstances, "a district court may not presume the truthfulness of the complaint's factual allegations." Id. (quotations and citation omitted). Instead, the court may review affidavits and other documents "to resolve disputed jurisdictional facts." Id. (quotations and citation omitted). Because part of the United States' challenge was made in its Trial Brief one week before trial and SUWA's challenge was made during post-trial briefing, the record before the court is more complete than what is typical for a jurisdictional challenge. See Aragon v. United States, 146 F.3d 819, 821 & n. 2 (10th Cir.1998) (resolving a jurisdictional challenge after a four-day bench trial was held on the jurisdictional issue).
Before the United States may be sued, it must waive its sovereign immunity. The Quiet Title Act provides such a waiver. It states:
28 U.S.C. § 2409a(a) (2012). This provision requires that two elements be met before suit may be brought.
First, the United States must claim an interest in the real property at issue. Each of the roads at issue in this case are subject either to the Monument Management Plan or the Kanab Field Office Management Plan. The federal government has marked on the different plans whether the roads are open, closed, or limited to motor vehicle use. It also has said in briefing that any improvements made to the roads would need to be done in consultation with them, based on the Tenth Circuit's SUWA decision. Because the government has stated its interest in these roads and is exercising some oversight of them through the management plans, the first prong of the Quiet Title Act has been met.
Second, title to the property must be disputed. If, however, "the United States disclaims all interest in the real property or interest therein adverse to the plaintiff at any time [before trial], ... the jurisdiction of the district court shall cease." Id. § 2409a(e) (emphasis added). The latter provision reinforces that the United States' waiver only applies when the United States claims an adverse interest to the plaintiff. Recently, the Tenth Circuit stated,
George v. United States, 672 F.3d 942, 947 (10th Cir.2012) (citations omitted) (emphasis added). Because the United States' ownership of federal land does not create an inherent conflict with Kane County's alleged rights-of-way, Kane County must show something more to sustain a Quiet Title Act.
The United States contends the second prong of the Act has not been met because
Alaska involved a challenge to three river beds. If a river bed was navigable on the date that Alaska obtained statehood in 1959, then Alaska owns the riverbed. Id. at 1156. If it was not navigable, then the United States owns it. Id. For the Black River, the United States had never taken a position as to whether it was navigable or not. Id. at 1164. It also had not disclaimed an interest in it. Therefore, at some future date, it could assert an interest, but in the meantime there was no dispute about Alaska's ownership rights. Id. at 1164-65. Because there was no dispute about title, the Court concluded there was no subject matter jurisdiction, at that time, for the Black River. Id.
The United States' position about the Black River is distinguishable from its position in this case because the United States has claimed an interest in each of the roads. Having claimed that interest, the portion of the Alaska ruling that is relevant is the part pertaining to the other two rivers at issue, namely the Kandik and Nation Rivers. At one point, the United States asserted the rivers were not navigable, which meant it asserted an adverse claim against Alaska because the United States claimed it owned the rivers. An administrative law judge found the opposite. Id. at 1158. The United States concluded it was not bound by that decision. Id. at 1159.
Subsequently, the State of Alaska sued the United States under the Quiet Title Act to resolve title for the Kandik and Nation Rivers. Without resolution of that cloud on title, the state's "land and water resource management and its ability to provide public information" was impeded. Id. The United States moved to dismiss the complaint on the ground that it had not waived sovereign immunity because it was not asserting an adverse claim at the time the complaint was filed. Id. Specifically, "[t]he United States refused to admit or deny the State of Alaska's averment" that the Kandik and Nation Rivers were navigable on the theory that it was a question of law. Id.
The Ninth Circuit found the United States had claimed an interest in the rivers. Id. at 1160-61. The fact that it had then changed its position before the court did not remove the cloud on title because it did not disclaim title, and therefore, had reserved the right to claim an adverse interest again. Id. at 1161. Indeed, the Court noted, "[i]f the state cannot get Quiet Title Act jurisdiction, then the potential claim will lurk over the shoulder of the state officials as they try to implement a coherent management plan for state waterways." Then, any time a "management initiative ... differed from federal policies, the federal government could revive its claim, and thereby prevent state regulation of the affected river." Id. The Court concluded this was not the intent of Congress when it provided legislation to quiet title. In fact, Congress "would have accomplished very little indeed if the United States could obtain a dismissal of any state quiet title suit by adopting a litigation position of refusing to state whether it
After the United States found, during an administrative proceeding, that Skutumpah is an R.S. 2477 road, it represented to Judge Stewart and Judge Jenkins in this court that until a court held Skutumpah was an R.S. 2477 road, the United States could impose any type of restriction on Skutumpah it wanted to under its management plan. It further contended and persuaded the court that if Kane County wanted to challenge its management plans, it had to bring a Quiet Title Action. Then, when Kane County followed that directive and filed this suit, the United States has the temerity to stand before this judge and contend it is not disputing Kane County's right-of-way, even though it also would not disclaim its interest in the right-of-way, and even though it had regulated that right-of-way under the Monument's Transportation Plan. The United States' position is no more persuasive before this court than it was before the Ninth Circuit in Alaska because its actions have left a cloud on title to the Skutumpah road. If the government's argument were accepted, Kane County would never be able to resolve its title issue, which per Alaska, runs contrary to the intent of Congress.
Moreover, at the time Kane County filed its claim for Skutumpah, it was enjoined from passing any ordinances, posting any signs, or in any way managing Skutumpah contrary to the Monument's Transportation Plan as a result of The Wilderness Society decision. That decision was in effect until the Tenth Circuit issued an en banc decision in 2011 reversing it. Notably, however, the decision was reversed based on prudential standing grounds. The Court did not address the cloud on Kane County's title due to the Monument's Transportation Plan (or the Kanab Field Plan for that matter). The court therefore concludes the United States has disputed title with respect to Skutumpah.
The United States' actions have also created a cloud on title for Hancock and Sand Dunes. The BLM went through formal proceedings to approve and publish the Kanab Field Plan. Similar to notice provided in the Federal Register, the Kanab Field Plan provided notice about the BLM's position for roads in the area. Hancock and Sand Dunes are not on Map 10 of the Kanab Field Plan.
While the BLM has published new maps on its website, showing the roads as "open" under a novel Class 3 designation, that does not alter the official document. See The Wilderness Society, 560 F.Supp.2d at 1161-62 (stating "any change to the designation (i.e., plan amendment) must be made through the formal resource management planning process, which requires public notice and comment."). Given the sea change that has occurred regarding
The United States' position on the Cave Lakes roads is equally problematic. The United States did not move to dismiss Kane County's claims for the four Cave Lake roads. Instead, it filed its answer and denied they were R.S. 2477 roads and also denied the asserted scope of the roads.
Moreover, the United States issued Title V permits for three of the Cave Lake roads. The permits state that if a court or the Secretary of the Interior ever holds that Kane County has an R.S. 2477 right-of-way for those roads, the Title V permit would cease. This constitutes an implicit acknowledgment that the scope of the permits directly conflicts with Kane County's asserted rights in the road. Otherwise, there would be no need to terminate the permits upon such a finding. The permits give a private entity the power to manage, develop, and modify the roads, as long as the developer follows the standards for a subdivision road in Kane County. Such a right conflicts with Kane County's ability to manage its alleged rights-of-way and puts the United States in the position of directing what occurs on those roads. Having superimposed such Title V permits over three of the Cave Lake roads, this is further grounds for finding a disputed title for those particular roads.
Tenny Creek and Oak Canyon stand on a different footing from the other roads. The United States does not deny that it has clouded title with respect to Mill Creek, and consequently, it does not challenge jurisdiction for that road. It nevertheless challenges the court's jurisdiction with respect to Tenny Creek and Oak Canyon because it contends those roads are separate and distinct from Mill Creek. Kane County asserts those branches have always been part of Mill Creek historically. Consequently, by clouding Mill Creek's title, the United States has also clouded title to Tenny Creek and Oak Canyon.
When driving on scenic roads, there is often a branch or spur to pull off the road and park or view an area. Likewise, there are at times emergency ramps on steep mountain roads to aid vehicles that experiencing brake failure or other mechanical problems. Although they may have marker posts, one would not typically say that these branches or spurs constitute separate
Prior to 2005, Tenny Creek and Oak Canyon did not have separate markers on them. Then, as part of a road project, Kane County designated Mill Creek as K4400, Tenny Creek as K4410, and Oak Canyon as K4405. Declaration of Mark W. Habbeshaw, ¶ 8 (Docket No. 84, Ex. K). Nevertheless, Kane County presented evidence that, historically, these branches have been maintained as part of Mill Creek. Deposition of Vane Campbell, 351-54, 361, 366-67 (Docket No. 84, Ex. E). The evidence presented at trial did not controvert these facts. Instead, it supported that Tenny Creek and Oak Canyon are used as areas to park off of Mill Creek when people go hunting. Trial Tr., at 665-67, 709-10, 1116 (L. Pratt). The branches are also used to turn equipment around when Kane County is maintaining the roads. In particular, Kane County's road maintenance crews have used the parking areas at the private property gates to maneuver its road maintenance equipment. Id. at 1115-18. In essence, the branches function as part of Mill Creek rather than as distinct, separate roads.
In Spirit Lake Tribe v. North Dakota, 262 F.3d 732, 744 (8th Cir.2001), the Court addressed whether an adverse claim for one segment of property constituted an adverse claim for the remainder. The Court concluded "[t]he assertion by the United States of its claim to the specific tracts put the state on constructive notice of the United States' claim to the remainder of the riverbed tracts." Id. (quotations and citation omitted); see also Park County Mont. v. United States, 626 F.2d 718, 721 n. 6 (9th Cir.1980) (concluding that an adverse claim to one portion of a right-of-way provided constructive notice for the "remainder of the purported right-of-way," especially since severance of the one portion would have injured the remaining portion). Here, the United States has asserted an adverse claim for part of Mill Creek. The court concludes, this constituted constructive notice of the United States' adverse claim to the remainder of Mill Creek, including its Tenny Creek and Oak Canyon segments. Therefore, the court concludes there is disputed title for those two segments as well.
In addition to the disputes discussed above, it became apparent during the course of this litigation that significant disputes exist as to the scope of each of these roads.
"Scope" is therefore a crucial component of an R.S. 2477 right-of-way because it sets the parameters in which a
The United States also contends the court lacks subject matter jurisdiction for the nine roads discussed above because there is no case or controversy regarding them. "Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies." Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citation omitted). This means "a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Id. (citations omitted). If a controversy is subject to "specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts," then a case or controversy exists. Id. (quotations and citation omitted). It then must continue to exist "through all stages of federal judicial proceedings." Id.
The United States contends the standard for a case or controversy is set forth in Washington County v. United States, 903 F.Supp. 40 (D.Utah 1995). In that case, Washington County sought to quiet title on the basis that "the United States claims, or may claim, the right to deny Washington County its right to construct and maintain its R.S. 2477 rights-of-way." Id. at 41 (quotations and citation omitted). The United States asserted this allegation "fail[ed] to present a definite and concrete controversy." Id. (citations omitted). The court agreed. It noted the complaint lacked any assertions "that the United States has interfered with or denied the existence of any rights claimed by Washington County." Id. at 42. It then, without further analysis, concluded there was no case or controversy. Id.
To the extent the United States contends it must close a road or deny that a road is an R.S. 2477 road before there is a case or controversy, the court rejects that contention. Interference can occur by means other than road closure. A cloud on title affords a sufficient case or controversy under Article III. United States v. West Virginia, 295 U.S. 463, 471, 55 S.Ct. 789, 79 L.Ed. 1546 (1935) (citation omitted). Moreover, Kane County seeks specific relief, as distinguished from an advisory opinion based on hypothetical facts. Its alleged injury can be redressed through a favorable judicial decision. The court therefore concludes a case or controversy exists for each of the nine roads.
SUWA challenges subject matter jurisdiction based on the Quiet Title Act's statute of limitations. The Act's statute of limitations provision states:
Id. § 2409a(g) (emphasis added). Because the statute of limitations does not apply
As stated above, to file a claim under the Quiet Title Act, the United States must have asserted an interest adverse to the plaintiff. Consequently, when the Act states the statute of limitations begins to run as soon as the plaintiff knew or should have known the United States claimed an interest in the property, it necessarily means that interest must be adverse. See George, 672 F.3d at 946 (stating the Quiet Title Act "is triggered by the government's claim ... of some interest adverse to the plaintiff or her predecessor") (emphasis added, alteration omitted). To the extent SUWA contends the claimed interest does not have to be adverse to trigger the statute of limitations, the court rejects that contention.
Finally, when assessing whether a plaintiff knew or should have known about an adverse claim, courts have applied a "reasonableness" standard. Under that standard, "`[k]nowledge of the claim's full contours is not required. All that is necessary is a reasonable awareness that the Government claims some interest adverse to the plaintiff's.'" Cheyenne Arapaho Tribes of Okla. v. United States, 558 F.3d 592, 595 (D.C.Cir.2009) (quoting Knapp v. United States, 636 F.2d 279, 283 (10th Cir.1980)) (other citation omitted).
SUWA contends the statute of limitations started to run in 1991 when the BLM's Area Manager informed Kane County about the necessary procedures to establish an R.S. 2477 road. According to SUWA, this was a warning that the BLM did not recognize Kane County's R.S. 2477 rights-of-way. The court disagrees.
On December 7, 1988, the Secretary of the Interior issued a memorandum stating "it is necessary in the proper management of Federal land to be able to recognize with some certainty the existence, or lack thereof, of public highway grants obtained under R.S. 2477." Memorandum re Departmental Implementation of SUWA, 2 (Dkt. No. 69, Ex. A) (citing 1988 Hodel Policy Memorandum). Consequently, the Secretary "directed Interior land managing agencies to develop internal procedures for administratively recognizing those highways." Id.
This policy was in effect at the time Mr. Smith met with the Kane County Commissioners and informed them about the needed procedures to administratively recognize R.S. 2477 rights-of-way. The statement was not a declaration of adverse interest and is in keeping with the assertion that "[a] government's claim of title to land isn't always and inherently inconsistent with ... ownership of an easement over that land." George, 672 F.3d at 947.
Moreover, the minutes are abbreviated and fail to reflect the full discussion that took place during that meeting. What is clear, though, is that Mr. Smith did not just discuss procedures with Kane County. He also expressed that he was "glad" the County was working on some of the roads because the work was essential. This expression conflicts with SUWA's assertion that the United States was claiming an interest adverse to Kane County. Furthermore, subsequent meeting minutes reflect that Kane County continued to make decisions about management and maintenance of its claimed roads following the meeting. This too shows the United States had not asserted management authority over Kane County's claimed rights-of-way. The court therefore concludes the minutes are insufficient to show the United States claimed an adverse interest in 1991.
SUWA's next challenge applies only to Swallow Park/Park Wash and North Swag roads. It asserts that when the BLM designated the Paria-Hackberry area as a wilderness study area, and published that decision in the Federal Register in 1980, the statute of limitations was triggered because the designation meant the BLM claimed there were no public roads in the area.
"Congress has instructed that ... publishing a regulation in the Federal Register must be considered sufficient to give notice of its contents to a person subject to or affected by it." George, 672 F.3d at 944 (citing 44 U.S.C. § 1507 (2012)) (quotations, alterations, and other citations omitted). Thus, publication in the Federal Register is sufficient notice to trigger the statute of limitations, but only on the issue addressed by that notice.
In Park County, one portion of a road traveled through a national forest. The national forest was established in September 1902. Later, when a Primitive Area was established in April 1932, a portion of the road traveled through that area. In 1962, the Forest Service posted a sign on the north end of the Primitive Area that stated, "Entering Absaroka Primitive Area Motor Vehicles Prohibited Gallatin National Forests." Park County Mont., 626 F.2d at 720. The Forest Service also placed a rock barrier in front of the sign. Id. at 721. The trial court concluded the statute of limitations started on that date because that is when an adverse claim to the right-of-way arose. Id.
Just as classifying an area as a national forest or primitive area was insufficient to trigger the statute of limitations in Park County, so too is the classification of a region as a wilderness study area. After the United States published notice about the Paria-Hackberry area in 1980, no effort was made by the United States to block road access. This is not surprising because the "wilderness study area" designation does not have the effect of nullifying R.S. 2477 rights-of-way. Indeed, when the inventory was done for the Paria-Hackberry area, no effort was made to determine whether the Swallow Park/Park Wash and North Swag roads were public ways because what constitutes a road under the Wilderness Act is not necessarily coterminous with the definition of a road under R.S. 2477.
Moreover, a nationwide BLM instruction memorandum directed that wilderness study areas be modified to accommodate R.S. 2477 rights-of-way when the boundary of a wilderness study area infringed upon that right-of-way. These facts show that while notice was published in the Federal Register about the Paria-Hackberry wilderness study area, that notice was not meant to inform rights-of-way holders that the United States was claiming an adverse interest. Instead, the United States, through its instruction memoranda, intended to work with R.S. 2447 rights-of-way holders.
Finally, the present Kanab Field Plan demonstrates that SUWA misstates the effect of a "wilderness study area" designation on motor vehicle use. The Kanab Field Plan designates areas and ways open to motor vehicle use within the Moquith Mountain and Parunuweap Canyon wilderness study areas. Kanab Field Plan, at 18; see also id. at 29 (discussing 1,000 acres open to off-highway vehicles within the Moquith Mountain wilderness study area); id. at 108 (stating "[u]se of the existing routes in the WSAs (`way' when located within WSAs) could continue as long as the use of these routes does not impair wilderness suitability" and Congress does not change designation to "wilderness").
On October 18, 1996, the United States filed suit against Kane County for trespass. After consolidation with other cases,
Kane County filed an amended complaint, adding Skutumpah, Swallow Park/ Park Wash, and North Swag to this case in November 2008.
Mayes v. AT & T Info. Sys., Inc., 867 F.2d 1172, 1173 (8th Cir.1989) (citing cases from various state and federal jurisdictions).
The logic for this stems from the fact that when a plaintiff must seek leave to amend its complaint, "the plaintiff has no way of controlling or even predicting the time at which any permission to amend will be granted, and thus no ability to control the date on which the amended complaint itself may be filed." Nett v. Bellucci, 437 Mass. 630, 774 N.E.2d 130, 136 (2002). Given the caseload of this court, it may be months before a motion is heard. Requiring plaintiffs to factor in this time would arbitrarily shorten the length of the statute of limitation. Id. Moreover, were plaintiffs required to file a parallel lawsuit to ensure their claims were preserved, this would be a waste of "scarce judicial resources and impose pointless litigation costs." Id. Accordingly, the court
It does bear noting, however, that when the United States filed its trespass action, it did not intend to challenge or address Kane County's alleged R.S. 2477 rights-of-way. Only when the court ordered them to undertake an analysis about the status of the roads, did it address the issue. Moreover, it was not until December 1999 that the United States found Kane County had no R.S. 2477 rights in Swallow Park/ Park Wash, North Swag, and the trespass sections of Skutumpah. Therefore, one could well-argue that the statute of limitations did not begin to run until December 1999. Regardless of whether the statute of limitations was triggered in October 1996 or December 1999, though, Kane County filed its claims within the requisite twelve year period.
Another factor of note is that when the United States initially filed its Answer in this case, it asserted a statute of limitations defense. After conducting discovery on the issue, however, the United States concluded that none of its actions was sufficient to show an adverse claim against Kane County. Hearing Tr., 16-17 (Jan. 26, 2012). It therefore stipulated that the statute of limitations had not run. Id. Given that the United States is the very entity that was involved in these matters, and not SUWA, it is in a better position to determine if the United States asserted an adverse claim against Kane County.
For the reasons stated above, the court concludes that the United States has asserted adverse claims under the Quiet Title Act, and thereby waived its sovereign immunity. The court further concludes a case or controversy exists in this case, and that the statute of limitations had not run when Kane County asserted its claims. Accordingly, the court concludes it has subject matter jurisdiction over each of the roads at issue in this case.
