The Wilderness Society v. Kane County, Utah

Decision Date24 August 2006
Docket NumberNo. 2:05-CV-854 TC.,2:05-CV-854 TC.
Citation470 F.Supp.2d 1300
PartiesTHE WILDERNESS SOCIETY, et al., Plaintiffs, v. KANE COUNTY, UTAH, et al., Defendants.
CourtU.S. District Court — District of Utah

Heidi J. McIntosh, Stephen H. Bloch, Southern Utah Wilderness Alliance, Salt Lake City, UT, James S. Angell, Edward B. Zukoski, McCrystie J. Adams, Earthjustice, Denver, CO, Robert Baxter Wiygul, Waltzer & Associates, Ocean Springs, MS, for Plaintiffs.

Shawn T. Welch, John A. Davis, Matthew L. Crockett, Pruitt Gushee, Salt Lake City, UT, for Defendants.


CAMPBELL, District Judge.

In 2005, Kane County passed Ordinance No.2005-03 ("the Ordinance"). The Ordinance opened a large stretch of federal land located in Kane County ("the land") to off-road vehicle ("ORV") use. The land had previously been closed to ORV use by federal land managers. According to Kane County, it had the right to change the classification of the land and post open signs because it and the State of Utah have acquired rights-of-way on the land that have become part of the county road system, which is jointly owned and managed by Kane County and the State of Utah.

In response to Kane County's actions, two environmental organizations, the Wilderness Society " and Southern Utah Wilderness Alliance (collectively "TWS"), brought this lawsuit against Kane County and members of Kane County's Board of Commissioners (collectively "the County") claiming that the Ordinance is preempted by various federal laws and regulations and therefore violates the Supremacy Clause of the United States Constitution. TWS seeks a declaration that the Ordinance is unconstitutional and an order enjoining the County from opening the land to ORV use.

The case is before the court on two motions: (1) the County's motion to dismiss the complaint; and (2) TWS's motion to amend the complaint to add two federal agencies as defendants and one cause of action under the Endangered. Species Act against the federal agencies.

At the heart of the County's Motion is its contention that TWS is "seek[ing] to eject Kane County and the State of Utah [who is not a party to the lawsuit] from ownership and jurisdiction of public roads [in Kane County]. The relief requested is the functional equivalent of a legal action to quiet title." (Defs. Mem. Supp. Mot. to Dismiss at 15.) Based on this contention, the County argues that the court does not have subject matter jurisdiction. The County also argues that TWS does not have standing to bring this action. The County raises essentially the same arguments in its opposition to TWS's Motion to Amend the Complaint.

The court disagrees with the County's basic contention primarily because the County has yet to prove that either it or the State of Utah has any right-of-way on the land. Moreover, the court need not make an ownership determination in order to address the Plaintiffs' claims. Accordingly, the court denies the County's motion to dismiss the complaint and also grants TWS's motion to amend the complaint.


There are many acres of federal public land in Kane County. The Bureau of Land Management ("BLM") manages about 1.6 million acres of the land and, the National Park Service about 400,000 acres. Federal land managers have closed some of the land to ORV travel.

In August 2005, the County passed the Ordinance, titled "Ordinance to Designate and Regulate the Use of Off-Highway Vehicles . . . ." (Kane County Ordinance 2005-3, attached as Ex. 2 to Defs.' Mem. Supp.) In the Ordinance, "the County claims the right and ownership of all Class B and Class D roads designated on the County Road System" and "has designated all Class B and Class D roads as open, unless designated closed to off-highway vehicle (OHV) use ... ." (Id.) The basis for the County's assertion of ownership in the roads is the federal statute known as "R.S. 2477." See Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932 ("R.S.2477"), repealed by Federal Land Policy & Management Act of 1976, Pub.L. No. 94-579 § 706(a), 90 Stat. 2743. See also Southern Utah Wilderness Alliance v. BLM, 425 F.3d 735 (10th Cir.2005) (describing background and history of R.S. 2477). TWS alleges that even before the County passed the Ordinance, the County had removed BLM signs restricting ORV travel on the land and replaced the BLM signs with County signs indicating that the posted routes are open to ORV use.

A. Defendants' Motion to Dismiss

The County's Motion is primarily a motion to dismiss for lack of subject matter jurisdiction brought under Federal Rule of Civil Procedure 12(b)(1).1 The County also brings its motion under Rule 12(b)(7), contending that the complaint must be dismissed because TWS has failed to join the State of Utah, an allegedly indispensable party.

1. The Supremacy Clause

TWS alleges that the Ordinance violates the Supremacy Clause because it conflicts with and has been preempted by federal laws that regulate ORV use on federal land. According to TWS, a suit claiming violation of the Supremacy Clause raises a federal question and this court has subject matter jurisdiction based on 28 U.S.C. § 1331. The County contends that the suit is in essence a quiet title action over which the court does not have subject matter jurisdiction.

The Supreme Court has made clear that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights: "A Plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). More recently, in Verizon Maryland Inc. v. Public Service Comm'n of Maryland, 535 U.S. 635, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002), the Court stated that "[w]e have no doubt that federal courts have jurisdiction under § 1331 to entertain such a suit [alleging violation of the Supremacy Clause]." Id. at 642, 122 S.Ct. 1753.

Similarly, in Qwest Corp. v. City of Santa Fe, New Mexico, 380 F.3d 1258 (10th Cir.2004), Qwest brought suit challenging an ordinance enacted by the City of Santa Fe that established new procedures for telecommunications providers seeking access to city-owned rights-of-way. 380 F.3d at 1262. Qwest was seeking a declaration that the ordinance was preempted by state and federal laws, and an injunction to prevent the enforcement of the ordinance. Id. Relying on Shaw and Verizon, the Tenth Circuit rejected the City's argument that there was no federal subject matter jurisdiction, holding that Qwest's claim of preemption provided federal question jurisdiction. Id. at 1264. Further, the court made clear that it was not the federal law that Qwest contended preempted the City's ordinance that gave rise to the right of action, but the Supremacy Clause itself. Id. at 1266. See also ANR Pipeline Co. v. Corp. Comm'n of Oklahoma, 860 F.2d 1571, 1576 (10th Cir.1988) ("Federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights."); Planned Parenthood of Houston & S.E. Texas v. Sanchez, 403 F.3d 324, 331 (5th Cir.2005) (listing cases).

2. Eleventh Amendment

There is no dispute that the County, by itself, is not entitled to the protection of the Eleventh Amendment Alden v. Maine, 527 U.S. 706, 756, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (noting that Eleventh Amendment immunity "does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State"). But the. County contends that this case must be dismissed because it is, in reality, a suit against the State of Utah, which is purportedly the owner of the roads at issue in the Ordinance passed in reliance on R.S. 2477. But, other than conclusory assertions, the County has not provided any evidence that either it or the State of Utah has acquired R.S. 2477 rights-of-way over the land. In fact, the County has admitted that there has been no binding judicial determination regarding R.S. 2477 rights-of-way on the land.

Still, the County contends that it need do nothing more than it has already done. According to the County, "[t]he idea that the State and County do not own property rights until adjudication has been conclusively rejected by the Tenth Circuit Court of Appeals." (Defs.' Reply at 2.) Relying on the Tenth Circuit's decision in Southern Utah Wilderness Alliance v. BLM, 425 F.3d 735 (10th Cir.2005), the County maintains that

[t]he State and Counties are free to use and enjoy their roads, including performing routine maintenance of the same, without prior adjudication or federal permission. The basic holding in [Southern Utah Wilderness Alliance] is that rights-of-way are valuable property rights that counties are free to continue to use, manage and enjoy pursuant to their lawful governmental power, without seeking prior permission . . . . Only if the surface or path of a road right-of-way is to be improved must there be a consultation with the federal land manager.

(Defs.' Reply at 3 (internal citations omitted).) The County continued its argument by stating that

[t]his court is well aware of Plaintiffs' recent unsuccessful attempt to create a prior-determination requirement in R.S. 2477 jurisprudence. [This] idea .. has been conclusively rejected by the Tenth Circuit Court of Appeals. "Title to an R.S. 2477 right of way . . . passes without any procedural formalities and without any agency involvement."

(Id. at 2-3 (quoting Southern. Utah Wilderness Alliance, 425 F.3d at 753).)

But the language quoted by the County must be read in context. When the Tenth Circuit made the quoted statement, it was answering "the...

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  • Wilderness Society v. Kane County, Utah
    • United States
    • U.S. District Court — District of Utah
    • May 16, 2008
    ...unilateral management authority until it successfully has carried its burden of proof in a court of law. Wilderness Soc'y v. Kane County, 470 F.Supp.2d 1300, 1306 (D.Utah 2006) (quoting TWS's The court based its ruling, at least in part, on a 2005 Tenth Circuit decision setting forth the pr......

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