Kane Cnty. v. United States

• Decision Date: 20 March 2013
• Docket Number: Case No. 2:08–cv–00315.
• Citation: 934 F.Supp.2d 1344
• Parties: KANE COUNTY, UTAH, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Utah

934 F.Supp.2d 1344

KANE COUNTY, UTAH, Plaintiff,

v.UNITED STATES of America, Defendant.

Case No. 2:08–cv–00315.

United States District Court,

D. Utah,

Central Division.

March 20, 2013.

Elizabeth B. Harris, Holme Roberts & Owen LLP, Shawn T. Welch, Ryan R. Jibson, Tamara L. Stevenson, Holland & Hart, Salt Lake City, UT, William L. Bernard, Pueblo, CO, for Plaintiff.

John K. Mangum, U.S. Attorney's Office, Salt Lake City, UT, Romney S. Philpott, Joanna K. Brinkman, U.S. Department of Justice, Environmental & Natural Resources Div., Washington, DC, Thomas K. Snodgrass, U.S. Department of Justice (ENR), Denver, CO, for Defendant.

MEMORANDUM DECISION AND ORDER

CLARK WADDOUPS, District Judge.

INTRODUCTION

Plaintiff Kane County, Utah seeks to quiet title to fifteen roads that cross lands owned by the United States.¹ Kane County asserts the roads are public highways under R.S. 2477 and it is the owner of the rights-of-way. The United States has challenged the court's jurisdiction to hear claims on nine of the roads because it claims there is no case or controversy about them. The Southern Utah Wilderness Alliance (“SUWA”), as amicus curiae, has also challenged the court's jurisdiction based on the statute of limitations. For the reasons stated below, the court concludes it has jurisdiction to hear the claims asserted by Kane County.

PROCEDURAL BACKGROUND

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.² Kane County then filed a second amended complaint on February 20, 2009. That complaint did not assert claims for any additional roads. Instead, it added more facts pertaining to the claims already asserted. Subsequently, the State of Utah intervened in the matter and filed its complaint on April 29, 2010. Kane County and the State claim joint ownership of these roads based on Section 8 of the Mining Law of 1866, which is more commonly known as R.S. 2477.

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 court's reasoning for denying the United States' motion to dismiss.

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. SeeFederal 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.

FACTUAL BACKGROUND

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 and the Wilderness Act

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. See45 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:

The whole issue of roads is made more significant because of the relationship of road to the wilderness inventory. The two are, however, not necessarily related issues. The wilderness inventory process uses a definition of a road that is distinct from the definition of “public” road contemplated by R.S. 2477 (42 USC 932) and is a definition for inventory purposes only, not for establishing rights of counties, etc. A determination that an area should not be excluded from wilderness review because the area does not have any “roads” as defined in the Bluebook is not a determination that a road is or is not a “public” road. This is a factual determination that does not relate to wilderness, except if a determination is made that a public road exists, the right-of-way should be excluded from a wilderness study area as with any other intrusion....

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...