Board of County Com'rs for Garfield County, Colo. v. W.H.I., Inc., s. 92-1070

• Citation: 992 F.2d 1061
• Decision Date: 28 April 1993
• Docket Number: 92-1082,Nos. 92-1070,s. 92-1070
• Parties: BOARD OF COUNTY COMMISSIONERS FOR GARFIELD COUNTY, COLORADO; United States of America, Plaintiffs-Appellants, v. W.H.I., INC., a Georgia Corporation; Verne E. Soucie, Sheriff of Garfield County, Colorado; Brown Land & Cattle Company, Inc.; Stewart Title Guaranty Company, Defendants-Appellees, and Brown Land & Cattle Company, Inc.; Double Eagle Land & Cattle Company, Inc.; Charles R. Rittenberry, Third-Party-Defendants-Appellees, Monroe Investment Company, Appellee. BOARD OF COUNTY COMMISSIONERS FOR GARFIELD COUNTY, COLORADO, Plaintiff-Appellee, and United States of America, Plaintiff, Monroe Investment Company, Third-Party-Plaintiff-Appellant, v. W.H.I., INC.; Verne E. Soucie, Sheriff of Garfield County, Colorado, Defendants-Appellees, and Double Eagle Land & Cattle Company, Inc.; Charles R. Rittenberry; Brown Land & Cattle Company, Inc., Third-Party-Defendants-Appellees, and Stewart Title Guaranty Company, Third-Party-Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1061

992 F.2d 1061

BOARD OF COUNTY COMMISSIONERS FOR GARFIELD COUNTY, COLORADO;

United States of America, Plaintiffs-Appellants, v. W.H.I., INC., a Georgia Corporation; Verne E. Soucie,

Sheriff of Garfield County, Colorado; Brown Land

& Cattle Company, Inc.; Stewart Title

Guaranty Company, Defendants-Appellees,

and

Brown Land & Cattle Company, Inc.; Double Eagle Land &

Cattle Company, Inc.; Charles R. Rittenberry,

Third-Party-Defendants-Appellees,

Monroe Investment Company, Appellee.

BOARD OF COUNTY COMMISSIONERS FOR GARFIELD COUNTY, COLORADO,

Plaintiff-Appellee, and United States of America, Plaintiff, Monroe Investment Company, Third-Party-Plaintiff-Appellant, v. W.H.I., INC.; Verne E. Soucie, Sheriff of Garfield County, Colorado, Defendants-Appellees, and Double Eagle Land & Cattle Company, Inc.; Charles R.

Rittenberry; Brown Land & Cattle Company, Inc.,

Third-Party-Defendants-Appellees,

and

Stewart Title Guaranty Company, Third-Party-Defendant.

Nos. 92-1070, 92-1082.

United States Court of Appeals Tenth Circuit.

April 28, 1993.

Rehearing Denied July 6, 1993.

Robert L. Klarquist (Vicki A. O'Meara and Barry M. Hartman, Acting Asst. Attys. Gen., Washington, DC, Michael J. Norton, U.S. Atty., Paula M. Ray, Asst. U.S. Atty., Denver, CO, Jacques B. Gelin, Dept. of Justice, Washington, DC, with him on the briefs), Dept. of Justice, Washington, DC, for federal plaintiffs-appellants.

Geoffrey P. Anderson (Phillip S. Figa of Burns, Figa & Will, P.C., Englewood, CO, and Ronald M. Wilson, Denver, CO, with him on the brief), of Burns, Figa & Will, P.C., Englewood, CO, for defendants-appellees W.H.I., Inc. and Monroe Investment Co.

Before BRORBY, BARRETT and EBEL, Circuit Judges.

BARRETT, Senior Circuit Judge.

The Board of County Commissioners of Garfield County (County) commenced this action in the Garfield County District Court, State of Colorado, seeking declaratory and injunctive relief. At issue is a roadway, which the parties acknowledge is a public road as it reaches from New Castle, Colorado, to Highland Cemetery. The status of this road is contested as it extends from Highland Cemetery northeast to White River National Forest. Over this approximate 5.5 miles, the road segments public lands administered by the Bureau of Land Management (B.L.M.), and also four parcels, privately-owned at the commencement of this action by defendants Leo Payne, Payne Land and Cattle Company, and W.H.I., Inc.

In its Complaint, ¹ the County asserted that the public holds a right-of-way established by adverse possession under Colorado law. The County contended:

The road crosses land owned by the Defendants [and] also crosses public lands owned by the United States which are administered by the United States Department of the Interior, Bureau of Land Management....

* * * * * *

The Defendant, the United States of America owns and controls all property crossed by the road that is the subject of this case ... to the extent that such road does not cross lands owned by the previously enumerated Defendants.

* * * * * *

As both a property owner, whose land is crossed by the subject road and is [sic] a property owner whose land is accessed by the subject road, the United States of America may claim an interest in the subject matter of this litigation that must be asserted through this case.

* * * * * *

This road has been used by the property owners, the public and for commercial purposes from its construction up to when it was closed by the Defendant and his predecessors with the knowledge of the landowners.

(R., App. to Brief for the United States, pp. 2-3).

In its Answer, the United States admitted the above-mentioned allegations of the County. It also asserted the following cross-claim against the private landowner defendants:

The Road provides essential, necessary and unique access to land owned by Defendant United States which is managed by the United States Department of Agriculture, Forest Service, and by the United States Department of Interior, Bureau of Land Management.

The road provides the citizens of the United States and others with an essential, necessary, and unique access to lands owned by Defendant United States including but not limited to the White River National Forest and other land owned and controlled by Defendant United States.

(R., App. to Brief for the United States, p. 54).

Thereafter, because its ultimate interest paralleled that of the County, the United States removed this case to federal district court where it was realigned as a party-plaintiff.

Defendant Payne Land and Cattle Company denied that the district court had jurisdiction to adjudicate the United States' cross-claim and asserted that the case had been wrongfully removed. As a defense, this defendant alleged that the United States had improperly perfected the existence of and its interest in the subject road. Further, it asserted that "[t]he road is not necessary for access to any land owned by the United States," and, as such, "the United States has no standing to assert its cross-claim in this case." In its pretrial order, the district court acknowledged that the defendants believed the court lacked jurisdiction and wished to preserve the issue for possible appeal. The court, having denied the defendants' motions challenging jurisdiction, ruled that it had jurisdiction over the parties and subject matter in this action.

At trial, the County and the United States (collectively, the governments) sought a declaration that the road is a public highway ² and an order restraining the private landowners from altering, destroying, or further obstructing the road. At the close of the governments' case, the district court granted the landowners' motion for dismissal pursuant to Fed.R.Civ.P. 41(b) on the ground that plaintiffs failed to show a right to relief. Both the County and the United States filed Notices of Appeal. Before briefing, however, the County withdrew its appeal, leaving the United States as the sole appellant.

I.

We first address whether the United States is properly before this court on appeal. During oral argument, the standing of the United States to proceed with its appeal was raised. The issue concerned which governmental entity would be responsible for enforcing a ruling declaring this a public roadway, particularly when the County, by withdrawing its appeal, had apparently acquiesced in the district court's declaration that this is not a county road.

Standing may be raised at any time in the judicial process. Juidice v. Vail, 430 U.S. 327, 331, 97 S.Ct. 1211, 1215, 51 L.Ed.2d 376 (1977); Citizens Concerned for Separation of Church and State v. City and County of Denver, 628 F.2d 1289, 1297 (10th Cir.1980), cert. denied, 452 U.S. 963, 101 S.Ct. 3114, 69 L.Ed.2d 975 (1981). "We review de novo issues such as standing that are prerequisites to this court's jurisdiction." Kansas Health Care Ass'n, Inc. v. Kansas Dep't of Social and Rehab. Servs., 958 F.2d 1018, 1021 (10th Cir.1992). Jurisdictional questions are of primary concern and can be raised at any time by courts on their own motion. Citizens, 628 F.2d at 1297. See also McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173 (1950).

In ANR Pipeline Co. v. Corporation Com'n, 860 F.2d 1571, 1579 (10th Cir.1988), cert. denied, 490 U.S. 1051, 109 S.Ct. 1967, 104 L.Ed.2d 435 (1989), we stated that standing is analyzed with two inquiries: "(a) whether the plaintiff alleges that the challenged action has caused him injury in fact (economic or otherwise), and (b) whether the interest sought to be protected by the plaintiff is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." See also Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152-53, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970); Citizens, 628 F.2d at 1295. While the term "standing" subsumes a blend of constitutional requirements and prudential considerations, Article III of the United States Constitution requires that a party which invokes the court's authority show that it has personally suffered some actual or threatened injury as a result of putatively illegal conduct of the defendant and that the injury can be fairly traced to the challenged action and is likely to be redressed by a favorable decision. Franchise Tax Bd. v. Alcan Aluminum Ltd., 493 U.S. 331, 110 S.Ct. 661, 107 L.Ed.2d 696 (1990); Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Ash Creek Mining Co. v. Lujan, 969 F.2d 868 (10th Cir.1992); Riggs v. City of Albuquerque, 916 F.2d 582 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1623, 113 L.Ed.2d 720 (1991). Whether a plaintiff has standing to bring a cause of action is a question of law for the court to determine. Motive Parts Warehouse v. Facet Enters., 774 F.2d 380, 389 (10th Cir.1985).

The United States points to Simon v. Pettit, 651 P.2d 418 (Colo.Ct.App.1982), aff'd, 687 P.2d 1299 (Colo.1984), in support of its contention that it has standing to appeal. In Simon, the plaintiffs-appellants sought a declaration that two footpaths used by them, each 18 inches wide with definite and specific lines, which crossed over the defendants'-appellees' lands, were public highways by virtue of adverse possession under § 43-2-201(1)(c), supra note 2. The jury found that the footpaths had been used by the public for twenty consecutive years and that the use was actual, visual, hostile, and with the implied permission of the owners as evidenced by their silent acquiescence. The Colorado Court of Appeals reversed the district court's judgment which declared the footpaths public highways, ruling that inasmuch as the land involved was vacant, unenclosed, and unoccupied, the presumption that the use was adverse did not apply. While the court did agree that the definitions of "road" and "highway"...