Kane County v. USA

Filing 753

MEMORANDUM DECISION GRANTING MOTION FORRELIEF - granting 734 Motion ; Motions terminated: 734 MOTION to modify the stay by Kane County Utah, Garfield County, Utah, and the State of Utah's Motion for Relief filed by Kane County. See Order for details. Signed by Judge Clark Waddoups on 11/10/22. (jrj)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

IN RE: JOINTLY MANAGED R.S. 2477
ROAD CASES LITIGATION,1
KANE COUNTY (2), (3), and (4), UTAH, a
Utah political subdivision; GARFIELD
COUNTY (1), UTAH, a Utah political
subdivision; and STATE OF UTAH
Plaintiffs and Intervenor
Plaintiffs,

MEMORANDUM DECISION
GRANTING MOTION FOR
RELIEF
Case Nos: 2:10-cv-1073
2:11-cv-1045
Judge Clark Waddoups

vs.
UNITED STATES OF AMERICA et al.,
Defendants, and
SOUTHERN UTAH WILDERNESS
ALLIANCE, et al.,
Permissive IntervenorDefendants.

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Certain R.S. 2477 road cases have been transferred to Judge Waddoups for case management
purposes only. For simplicity, case management orders addressing any of these cases shall be
referred to as “In re: Jointly Managed R.S. 2477 Road Cases Litigation.” The caption, however,
lists the particular case numbers to which this order pertains and this order shall be docketed in
each of the listed cases.

This matter is before the court on a Motion for Relief filed by Kane County, Utah; Garfield
County, Utah; and the State of Utah (“Plaintiffs”).2 Plaintiffs assert there are “significant and
growing transportation and public safety problems that require prompt attention” on three roads.
Mot. for Relief, at 2.3 Hole-in-the-Rock Road stretches through two counties. It is identified as
G9000 in Garfield County and K9000 in Kane County and comprises two of the roads. The third
road is K6000 House Rock Valley Road in Kane County.

Plaintiffs seek for a speedier

determination on their R.S. 2477 claims for these three roads to address the alleged safety
problems. For the reasons stated below, the court grants Plaintiffs’ motion on an alternative ground
raised by the parties.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs filed Kane County (2) in 2010 and Garfield County (1) in 2011. In 2013,
comprehensive case management orders were entered to manage over twenty R.S. 2477 road cases,
involving more than 12,000 roads, that were pending in this district. See e.g., Case Mgmt. Order,
at 2 (ECF No. 54 in 2:11-cv-1045). Kane County (2) and Garfield County (1) were designated as
active cases, and other road cases were stayed. 4 Because the two active cases “put at issue the

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The same Motion for Relief has been filed in Kane County (2) and Garfield County (1). See
Motion for Relief (ECF No. 734 in Case No. 2:10-cv-1073); Motion for Relief (ECF No. 315 in
Case No. 2:11-cv-1045).
Pincites to the record refer to the ECF numbering at the top of the page and not to numbering at
the bottom of a page.
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Kane County is not subject to the Case Management Order, but the State of Utah, as PlaintiffIntervenor in Kane County (2) is subject to it. See Case Mgmt. Order, at 2 (ECF No. 78 in Case
No. 2:10-cv-1073) (stating Kane County did not enter into a stipulated agreement).
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rights of way of 1,510 roads,” the court determined approximately “22 court years” would be
needed to resolve those two cases. Bellwether Order, at 2 (ECF No. 238 in 2:10-cv-1073).
To address the concern, the court developed a bellwether process where select roads from
both cases were to be chosen as being representative of legal issues requiring further development
under the law. Id. at 2–3. Following resolution of such issues, “the findings and judgments
[would] then become the bases for a global resolution” of the other pending road cases. Id. at 2.
Kane County (2) was selected to be the first bellwether trial. Id. at 3. On March 16, 2018, the
court entered an Order Amending Bellwether Management Order (ECF No. 379 in Case No. 2:10cv-1073), which identified fifteen roads in Kane County that had been selected for the bellwether
trial. Included on the list was “K9000 (Hole-in-the-Rock).” Id. at 2. Accordingly, the Hole-inthe Rock segment through Kane County is already before the court. That said, significant delays
have occurred in bringing the first bellwether trial to conclusion.
In the nine years following entry of the Case Management Orders, road conditions have
not remained static. Plaintiffs assert there has been increased travel on the full length of the Holein-the-Rock Road and on the House Rock Valley Road. Such travel has allegedly degraded the
roads and caused safety concerns due to damage to vehicles and “livestock deaths from pulling
trailers on the damaged [Hole-in-the-Rock] road.” Letter, at 3–4 (ECF No. 315-1 in Case No.
2:11-cv-1045).
On May 3, 2022, Garfield County sent a letter to Ade’ Nelson, Acting Monument Manager
of the Grand Staircase Escalante National Monument, which informed the Bureau of Land
Management (“BLM”) that road conditions for the Hole-in-the-Rock Road in Garfield County
required improving the road with chip seal. Id. at 2. Garfield County requested that the BLM

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“exercise its legal authority to make a determination for its own purposes with regard to the
County’s claimed R.S. 2477 right-of-way on the [road].” Id. It also asked the BLM to begin the
consultation process on the proposed improvement. Id.
On June 2, 2022, the BLM responded and “decline[d] to exercise its discretion to . . . initiate
a non-binding determination.” Letter, at 6 (ECF No. 315-1 in Case No. 2:11-cv-1045). “Instead,
the BLM” stated it would “wait until the court resolves the County’s pending Quiet Title Act
(QTA) claim in Garfield Co.” Id. To put that into perspective, no roads have been selected yet
for the bellwether process in Garfield County (1), and it is unknown if the Hole-in-the-Rock section
through Garfield County will be part of that selection. Even if it is, it likely will be many years
before title to the road is determined under the present Case Management Order.
Yet, in the same letter, the BLM stated “[w]ithout a [QTA] determination, the BLM will
not consider the County’s proposed improvement.” Id. The BLM recommended that Garfield
County apply for a Title V permit, and it admonished that even the gravel restoration work that
Garfield County did to address safety “may have exceeded prior maintenance.” Id. at 7.
As for the House Rock Valley Road, in 2019, Kane County notified the BLM about
concerns with the stretch through the Buckskin Wash crossing “because of the many vehicles that
get stuck” after a weather event. Letter, at 2 (ECF No. 734-3 in Case No. 2:10-cv-1073). Kane
County requested permission to place “several 8ft by 8ft box culverts” in the wash to increase
safety. Id. The BLM has not approved the project.
The complexity of these cases and other conditions have slowed resolution of the
bellwether roads. As indicated above, adjudication of the bellwether roads in Garfield County (1)
and the non-bellwether roads in Kane County (2) may not be for some years. Consequently,

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Garfield County and Kane County seek for more immediate relief to address present safety
concerns.
Initially, Plaintiffs moved for the Court to lift a stay and order “the BLM to initially
determine the status of [the] roads and to consult with the Plaintiffs regarding proposed
improvements.” Mot. for Relief, at 3 (ECF No. 734 in Case No. 2:10-cv-1073). The United States
opposed the “motion as based on a flawed factual premise and oppose[d] the specific requests for
relief as outside the scope of these cases and beyond the Court’s jurisdiction.” Mem. in Opp’n at
2 (ECF No. 736). It stated, however, that “the United States may not be opposed to appropriate
case management adjustments, to the extent that they may address Plaintiffs’ underlying
concerns.”

Id.

The United States requested, during a status conference, that if the Case

Management Orders are to be modified, that the parties be allowed to consult on what the
modification should be.
In its reply brief, Plaintiffs “accept[ed] the United States’ offer to adjust the case
management orders to get to a speedy resolution.” Reply Brief, at 3 (ECF No. 739). Plaintiffs
further request that they be allowed “to prove their ownership, including by way of motions for
summary judgment.” Id. at 6.
ANALYSIS
In Southern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735, 745
(10th Cir. 2005) (hereinafter “SUWA Decision”), the Tenth Circuit held “that the holder of an R.S.
2477 right of way across federal land must consult with the appropriate federal land management
agency before it undertakes any improvements to an R.S. 2477 right of way beyond routine
maintenance.” The Tenth Circuit also held that a federal “agency may not use its authority, either

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by delay or by unreasonable disapproval, to impair the rights of the holder of the R.S. 2477 right
of way.” Id. at 748 (emphasis added). Although the Tenth Circuit held that “the establishment of
R.S. 2477 rights of way required no administrative formalities,” id. at 741, it never expressly
defined in the SUWA Decision who a “holder” was.
The United States has taken the position that Plaintiffs cannot be a holder, and no
consultation is required, unless a court has adjudicated title to an R.S. 2477 road in Plaintiffs’
favor.5 Whether the United States’ position is correct is an issue for another day.
For now, the parties appear to be in agreement that modification of the Case Management
Order will result in a speedier resolution. Because the needed modifications are limited in scope,
the court concludes no consultation between the parties is needed. Accordingly, the court grants
Plaintiffs’ Motion for Relief for the alternative relief of case management order modification.
CONCLUSION
For the reasons stated above, the court GRANTS the Motion for Relief (ECF No. 734 in
Case No. 2:10-cv-1073; and ECF No. 315 in Case No. 2:11-cv-1045), for the alternative relief of
case management order modification.

Separate case management orders will be issued

concurrently with this decision.
DATED this 10th day of November, 2022.
BY THE COURT:
Clark addoups
United States District Judge

The United States acknowledges that an informal determination by the BLM also can establish
“holder” status, but the BLM has declined to make such a determination in these cases based on
its discretionary authority.
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