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San Juan County v. United States

United States Court of Appeals, Tenth Circuit

April 25, 2014

SAN JUAN COUNTY, UTAH, a Utah political subdivision, Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA; DEPARTMENT OF INTERIOR; NATIONAL PARK SERVICE, Defendants - Appellees. and STATE OF UTAH, Intervenor Plaintiff, SOUTHERN UTAH WILDERNESS ALLIANCE; GRAND CANYON TRUST; THE WILDERNESS SOCIETY; SIERRA CLUB; NATIONAL PARKS CONSERVATION ASSOCIATION, Amici Curiae. STATE OF UTAH, Intervenor Plaintiff -- Appellant. and SAN JUAN COUNTY, UTAH, a Utah political subdivision, Plaintiff,
v.
DEPARTMENT OF INTERIOR; NATIONAL PARK SERVICE; UNITED STATES OF AMERICA, Defendants - Appellees. SOUTHERN UTAH WILDERNESS ALLIANCE; GRAND CANYON TRUST; THE WILDERNESS SOCIETY; SIERRA CLUB; NATIONAL PARKS CONSERVATION ASSOCIATION, Amici Curiae

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Utah. (D.C. No. 2:04-CV-00552-BSJ). (D. Utah).

Anthony Rampton (Bridget K. Romano, Assistant Utah Attorney General and Mark L. Shurtleff, Utah Attorney General with him on the brief), Assistant Utah Attorney General, Salt Lake City, Utah for the Plaintiff-Appellant State of Utah.

Shawn T. Welch (Tamara L. Stevenson with him on the brief), Holland & Hart LLP, Salt Lake City, Utah for the Plaintiff-Appellant San Juan County, Utah.

Aaron P. Avila, Attorney, (Bruce D. Bernard, Attorney, Ignacia S. Moreno, Assistant Attorney General, U.S. Dep't of Justice Env't & Natural Resources Div., Washington, DC; David B. Barlow, United States Attorney, Carlie Christensen, Assistant United States Attorney, District of Utah, Salt Lake City, Utah; G. Kevin Jones, Office of Regional Solicitor, Department of the Interior, Salt Lake City, Utah, with him on the brief), of U.S. Dep't of Justice Env't & Natural Resources Div., Washington, DC, for Defendant -- Appellee.

Before MURPHY, HOLLOWAY[*], and O'BRIEN, Senior Circuit Judges.

OPINION

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O'BRIEN, Circuit Judge.

This Quiet Title Act case requires us to decide whether the district court erred in rejecting the claims of San Juan County and the State of Utah[1] to a public right-of-way, called Salt Creek Road, in Canyonlands National Park. We affirm.

BACKGROUND AND PROCEDURAL HISTORY

Salt Creek Road is an unimproved 12.3-mile road intertwined with the creek bed in Salt Creek Canyon. The state and county wish to use their claimed right-of-way to prevent the United States from closing the Salt Creek Road to vehicle traffic.[2] The road is the primary way for tourists to reach several scenic sites within the Canyonlands National Park, including Angel Arch. Without vehicle access, the only way to access Angel Arch is to make the nine-mile trek by foot. As the state and county explain, this trek renders Angel Arch inaccessible to many people, particularly those who lack the physical ability to make arduous hikes.

The state and county base their claim on Revised Statute (R.S.) 2477. The statute read simply: " [T]he right of way for the construction of highways over public lands,

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not reserved for public uses, is hereby granted." [3] Congress enacted R.S. 2477 in 1866, and it remained in effect until 1976.[4] Even then, however, Congress preserved the rights-of-way established under the statute. S. Utah Wilderness Alliance v. Bureau of Land Mgmt . ( SUWA ), 425 F.3d 735, 741 (10th Cir. 2005). Likewise, when Congress reserved Canyonlands National Park in 1964, clearly preventing new rights-of-way across these public lands, it made the reservation " subject to valid existing rights." [5]

R.S. 2477 " 'was a standing offer of a free right of way over the public domain.'" SUWA, 425 F.3d at 741 (quoting Lindsay Land & Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646, 648 (Utah 1929)). The public need only accept it. See id . The question of whether a R.S. 2477 right-of-way has been accepted is a question of federal law. However, " to the extent that state law provides convenient and appropriate principles for [implementing] congressional intent," federal law " borrows" from it to " determin[e] what is required for acceptance of a right of way." Id. at 768 (quotation marks omitted).

Under Utah law, " [a] highway shall be deemed and taken as dedicated and abandoned to the use of the Public when it has been continuously and uninterruptedly used as a Public thoroughfare for a period of ten years." Lindsay Land & Live Stock, 285 P. at 648 (quoting ch. 12, Laws of Utah 1886, § 2); accord Utah Code Ann. § 72-5-104(1). Neither R.S. 2477 nor Utah law requires any " administrative formalities" or " formal act of public acceptance" of the right-of-way. SUWA, 425 F.3d at 741; see Lindsay Land, 285 P. at 648. Accordingly, disputes involving R.S. 2477 rights-of-way often require a close examination of historical evidence of public use. SUWA, 425 F.3d at 772-76 (elaborating on the historical facts of several typical cases).

Thus, the issue at trial was whether the public had accepted an R.S. 2477 right-of-way on Salt Creek Road through " continuous public use for a period of ten years" prior to the reservation of the lands for Canyonlands National Park on September 12, 1964.[6] (Joint App'x Vol. II at 484-85.) During a nine-day bench trial, the state and county produced a variety of historical evidence as proof of such use. To summarize, the evidence showed (1) residential and grazing uses at a site south of the road beginning in the late 1880s or early 1890s; (2) cattle herding and grazing in Salt Creek Canyon starting around 1891 and increasing gradually through the 1950s; (3) nascent uses of the canyon by boy scouts and tourists beginning as early as 1950; and (4) some uranium mining and oil exploration in the mid- to late-1950s.

Following the trial, a judgment issued in favor of the United States. In the judge's view, although the state and county were able to show a variety of historical uses of the road, the evidence was not sufficient to show the road had been in continuous public

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use as a public thoroughfare throughout a ten year period prior to the reservation of Canyonlands National Park in September of 1964:

During the 1950s, a visit to Salt Creek Canyon and Angel Arch was an experience marked by pristine solitude. Continuous public use of the plaintiffs' claimed right-of-way as a public thoroughfare --to reach Angel Arch or anywhere else in Salt Creek Canyon--had not yet begun by September of 1954, and indeed did not commence for some time thereafter. By September of 1964, it was certainly arguable that the plaintiffs' claimed right-of-way . . . up Salt Creek Canyon to Angel Arch was in continuous public use as a public thoroughfare, primarily for the purpose of scenic tourism by the growing number of visitors to the Canyonlands area, and for other uses as well. By then, the path of the road had arguably become discernable on the ground as it traversed the Salt Creek stream bed--at least to the extent that the tracks were not washed away by the recurring flood events that are typical of Salt Creek. But given the evidence presented at trial, and this court's findings based on that evidence, the same cannot be said for the ten years preceding September 12, 1964, and this court must conclude that the plaintiffs have failed to prove by clear and convincing evidence the requisite ten years of continuous public use of their claimed R.S. 2477 right-of-way as a public thoroughfare.

(Joint App'x Vol. 2 at 550-52 (footnotes omitted).)

DISCUSSION

Contrary to the district judge's decision, the state and county tell us they have demonstrated the required ten years of continuous public use of Salt Creek Road prior to the park reservation in 1964. Although the United States is satisfied with the judge's merits decision, it contends sovereign immunity deprived the district court of jurisdiction. As it explains, this suit is premised on the waiver of sovereign immunity in the Quiet Title Act. It claims the limitation periods in the Act have expired, thereby preventing the state and county from taking advantage of the waiver.

I. Quiet Title Act/Sovereign Immunity

Because the Quiet Title Act issue is jurisdictional, we consider it first. In doing so, " [w]e review de novo both the district court's determination of subject-matter jurisdiction and its ruling on the applicability of a statute of limitations." Rio Grande Silvery Minnow (Hybognathus amarus) v. Bureau of Reclamation, 599 F.3d 1165, 1175 (10th Cir. 2010). We review the district court's findings of jurisdictional fact for clear error. Id. Like the district judge, we conclude the claims of both the state and county are timely.

Normally, sovereign immunity shields the United States from suit. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); see Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983). Unless the United States waives its sovereign immunity, thereby consenting to be sued, the federal courts lack jurisdiction to hear claims against it. Meyer, 510 U.S. at 475; Block, 461 U.S. at 280; see United States v. Sherwood, 312 U.S. 584, 587-88, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The terms of the waiver " define [the] court's jurisdiction to entertain the suit." Meyer, 510 U.S. at 475 (quotation marks omitted).

The Quiet Title Act, under which the state and county ...


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