U.S. v. Garfield County

Decision Date24 October 2000
Docket NumberNo. CIV. 2:96-CV-450J.,CIV. 2:96-CV-450J.
Citation122 F.Supp.2d 1201
PartiesUNITED STATES of America, Plaintiff, and National Parks and Conservation Association, Plaintiff-in-Intervention, v. GARFIELD COUNTY, Defendant, and State of Utah, Defendant-in-Intervention.
CourtU.S. District Court — District of Utah

Daniel D. Price, Assistant U.S. Attorney, U.S. Attorney's Office, Salt Lake City, UT, Paul F. Holleman, U.S. Department of Justice, Environmental & Natural Resources Division, Margo Miller, U.S. Department of Justice, Environmental & Natural Resources Division, Washington, DC, for Plaintiff, USA.

William J. Lockhart, Salt Lake City, UT, Wayne G. Petty, Moyle & Draper PC, Salt Lake City, UT, for Plaintiff-in-Intervention, National Parks and Conservation Association.

Stephen H. Urquhart, Ronald W. Thompson, Thompson, Awerkamp & Urquhart, L.C., Barbara G. Hjelle, St. George, UT, Wallace A. Lee, Garfield County Attorney, Panguitch, UT, for Defendant, Garfield County.

Stephen G. Boyden, Utah Attorney General's Office, Salt Lake City, UT, for Defendant-in-Intervention, State of Utah.

MEMORANDUM OPINION AND ORDER

JENKINS, Senior District Judge.

This case concerns a road. It brings to court a contest of wills between two governmental entities, each vying for dominion over the road. This case arises from an incident in February of 1996 in which one entity altered one part of the road without the blessings of the other entity.

This case involves equipment, engineering, environment, and ego.

This case asks the very particular meaning of very general words chosen long ago, and seeks to define the character of the road and its relationship to the national park through which it passes, now and in years to come.

At its heart, this case is about who gets to say.

Bench Trial

This matter was tried to the court for eight days, from February 16 through February 25, 1999. Margo D. Miller, and Paul F. Holleman, United States Department of Justice, and Daniel D. Price, Assistant United States Attorney, appeared on behalf of the United States; Ronald W. Thompson and Barbara Hjelle appeared on behalf of Garfield County; Stephen Boyden appeared on behalf of the State of Utah; and William J. Lockhart and Wayne G. Petty appeared on behalf of the National Parks and Conservation Association.

The court heard extensive testimony from fact and expert witnesses, and received numerous exhibits into evidence.1 At the conclusion of the evidence, the court heard closing arguments by counsel and took the matter under advisement. The parties filed extensive post-trial legal memoranda and submitted proposed findings of fact and conclusions of law.2

THE FACTUAL CONTEXT
The Burr Trail and Capitol Reef National Park

The Burr Trail winds for sixty-six miles through federally owned land in the rugged, dramatic terrain of southern Utah's Garfield County. Connecting the town of Boulder with Lake Powell's Bullfrog Basin Marina, the road at various points traverses across or next to unreserved federal lands, two wilderness study areas, the Capitol Reef National Park, and the Glen Canyon National Recreation Area.

Sierra Club v. Hodel, 848 F.2d 1068, 1073 (10th Cir.1988).

Noting that "certain public lands in the State of Utah contain narrow canyons displaying evidence of ancient sand dune deposits of unusual scientific value, and have situated thereon various other objects of geological and scientific interest," President Franklin D. Roosevelt created the Capitol Reef National Monument by Proclamation 2246 on August 2, 1937, 50 Stat. 1856. On January 20, 1969, President Lyndon B. Johnson issued Presidential Proclamation 3888, 83 Stat. 922, which expanded the boundary of the Capitol Reef National Monument to include "the outstanding geological feature known as Waterpocket Fold and other complementing geological features ... such as Cathedral Valley," id., as well as land traversed by the Burr Trail.3 The Proclamation further declared that "[w]arning is hereby expressly given to all unauthorized persons not to appropriate, injure, destroy, or remove any feature of this monument ...."

On December 18, 1971, Congress established the Capitol Reef National Park, superseding the prior national monument and directing the National Park Service to "administer, protect, and develop the park" under the direction of the Secretary of the Interior. Pub.L. No. 92-207, § 5(a), 85 Stat. 739 (1971), codified at 16 U.S.C.A. § 273d(a) (1992). Taking its name from the white dome-shaped rock formations on the Fremont River, Capitol Reef National Park (the "Park") now embraces nearly 242,000 acres of scenic Utah landscape.

Garfield County asserts a right-of-way pursuant to § 2477 of the Revised Statutes of the United States, 43 U.S.C. § 932 (repealed 1976),4 along the entire 66-mile length of the Boulder-to-Bullfrog Road, including the Burr Trail,5 as well as the right to construct and maintain the road thereon.6 For purposes of this litigation, at least, the Government concedes that Garfield County owns an R.S. § 2477 right-of-way along the Capitol Reef portion of the Boulder-to-Bullfrog Road; intervenor National Parks and Conservation Association does not.

This case involves only that portion of the road which traverses Capitol Reef National Park, an unpaved segment approximately 8.4 miles in length,7 with only the most easterly one-mile of that segment actually involved in the incident giving rise to this lawsuit.

Other segments of the Boulder-to-Bullfrog Road have previously been the subject of litigation, particularly Sierra Club v. Hodel, 675 F.Supp. 594 (D.Utah 1987), affirmed in part, reversed in part and remanded, 848 F.2d 1068 (10th Cir.1988). That earlier experience provides helpful guidance in resolving the current dispute. Indeed, each of the parties relies upon the opinions in Hodel for support of some aspect of its position concerning the Capitol Reef segment.

The Road & The Park: 1972-1996

In 1973, at the direction of Congress in § 6 of the Act creating the Park,8 the Park Service completed a study of road alignments in and near the Park, making only brief mention of the Burr Trail road:

South of Utah 24, the only improved road to cross the park is the Burr Trail. Thirty-six miles long, this county road joins the town of Boulder to the road [extending south from Utah 24 to Bullfrog Basin]. The nature of the Waterpocket Fold—the steep topography and instability of the land—makes it unfeasible to substantially upgrade the Burr Trail; instead, this road will be maintained as a gravel road.

(U.S. Exh. 1058, at 37-38.)

In October 1982, the Park Service issued its General Management Plan and Final Environmental Impact Statement for Capitol Reef National Park. (U.S. Exh. 7.) While noting that "Garfield County has indicated an interest in paving the county road from Boulder to Ticaboo," which possibly "would shift a portion of the regional traffic from Utah 24 to the Burr Trail in the South District of the park," (id. at 70), and that Garfield County was maintaining the road, which was "passable for most vehicles" except in rainy weather (id. at 78), the plan expressed little interest in road improvements:

It is not in the interest of the Park Service to finance improvements of the through-roads in the South and North districts during the lifetime of this plan. Should the county and/or state propose improvements to any of these roads, the Park Service will retain a voice in the design of these roads and the regulation of traffic on them within the park to protect the park lands, resources, and visitors.

(Id. at 37.)

The plan addressed proposed road improvements by others. It contemplated that "[i]mproved roads will retain their existing alignments, with the possible exception of realignment in steep terrain near the park boundary east of The Post," and that "minor realignment may occur" on the switchbacks "down the strike face of the Kayenta formation ...." (Id.) The Park Service retained "the right to designate and construct access roads and scenic pullouts," would "require and review road designs and will approve the conformity of construction to approved designs," may "restrict use on county or state roads within the park," including "designat[ing] hours of day or season during which heavy equipment such as trucks may be operated within the park." (Id.) Yet the plan also contemplated that the Park Service "will cooperate with county or state planning, design, and construction activities within the purview of its authority," and "will grant the county and/or state a right-of-way" for realignments of the Burr Trail road. (Id.)9

In May, 1984, Creamer and Noble Engineers and the Five County Association of Governments issued a "Preliminary Engineering Report" on a project called the "Boulder-Bullfrog Scenic Road," an "improvement" project that "calls for the construction of approximately 66 miles of paved roadway designed to support an average daily traffic of 250 vehicles ...." (U.S.Exh. 9.) The report contemplated "construct[ing] a scenic road which is capable of safely allowing year-round access into the area at a moderate speed" on a roadway cross section that "has been approved by the National Park Service." (Id.)

The idea caught the attention of Congress: on October 10, 1984, a congressional conference committee explained that the "managers deleted the $8,500,000 proposed by the Senate to pave the Burr Trail and upgrade it into an all-weather, scenic highway linking the Utah towns of Boulder and Bullfrog. Construction funds were deleted in response to strenuous objections about potentially serious environmental problems." 130 Cong. Rec. 31516 (Oct. 10, 1984). Observing that the "[p]roject proponents point to potentially significant benefits and the long history associated with proposals to upgrade the road," and "in order to provide adequate information respecting environmental concerns," the committee...

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