Kane County v. USA

Filing 773

MEMORANDUM DECISION & Order: denying 671 Motion to Dismiss for Lack of Jurisdiction ; denying 755 Motion to Dismiss for Lack of Jurisdiction. Specifically, the court concludes Utahs seven-year statute of limitations does not ba r the Bellwether road claims. The court will address the QTA statue of limitations claims at the same time that it addresses the jurisdictional claims. The parties shall submit additional briefing as set forth. 1. United States opening suppl emental brief shall be filed on or before November 7, 2023; 2. The State and Countys responsive briefs shall be filed on or before December 8, 2023; 3. United States reply brief shall be filed on or before December 22, 2023. Signed by Judge Clark Waddoups on 10/06/2023. (kpf)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
KANE COUNTY, UTAH (2), (3) and (4),
a Utah political subdivision; and STATE OF
UTAH,
v.

Plaintiffs,

UNITED STATES OF AMERICA,
Defendant,
SOUTHERN UTAH WILDERNESS
ALLIANCE, et al.,
Permissive Intervenor-Defendants.

MEMORANDUM DECISION
AND ORDER RE:
MOTIONS TO DISMISS
and
REQUEST FOR
ADDITIONAL BRIEFING
Case No. 2:10-cv-01073
Consolidated with:2:11-cv-1031 and
2:12-cv-476
Case No. 2:11-cv-1045
Judge Clark Waddoups

GARFIELD COUNTY (1) AND (2), a Utah
political subdivision; and STATE OF UTAH,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant,
SOUTHERN UTAH WILDERNESS
ALLIANCE, et al.,
Permissive Intervenor-Defendants.

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INTRODUCTION
This matter is before the court on the United States’ motions to dismiss fifteen Bellwether
Road claims, along with the K6000 House Rock Valley Road in Kane County and the G9000
Hole-in-the Rock Road as it stretches through Garfield County. The United States asserts that
the court lacks subject matter jurisdiction, due to no case or controversy, for eight of the roads.
It further asserts the remaining nine road claims are barred by a statute of limitations. Of those
nine, the United States asserts Utah’s seven-year statute of limitations, Utah Code Ann. § 78B-2201, bars all nine, but even if the seven-year statute of limitations is not applicable, three of the
roads are barred by the federal Quiet Title Act’s (“QTA”) twelve-year statute of limitations, 28
U.S.C. § 2409a. The court denies in part the United States’ motions to dismiss, and requests
additional briefing.
I.

UTAH’S STATUTE OF LIMITATIONS
A.

Statute of Limitations Not Applicable for Quiet Title Actions

The United States asserts Section 78B-2-201 of the Utah Code bars the State’s claims on
nine roads 1 because the State brought suit more than seven years after the United States disputed
title. The state statute provides: “(1) The state may not bring an action against any person for or
with respect to any real property, its issues or profits, based upon the state’s right or title to the
real property, unless: (a) the right or title to the property accrued within seven years before any
action or other proceeding is commenced.” Id. § 78B-2-201(1)(a).

The nine roads are: K1410; K6200 Paria River; K6290 Rushbeds; K6290 Rushbed Springs;
K7020; K7025; K7050 Blue Trail; K7300 Last Chance; and K8650 Grand Bench Neck.
1

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The State responded that the seven-year statute of limitations is inapplicable to true quiet
title actions. State Mem. in Opp’n, at 27–36 (ECF No. 686). 2 It cited and discussed several
Utah Supreme Court cases for this proposition, such as In re Hoopiiaina Trust, 2006 UT 53, 144
P.3d 1129 (Utah 2006) (addressing perfecting trust assets) and WDIS, LLC v. Hi-Country Estates
Homeowners Assoc., 449 P.3d 171 (Utah 2019) (addressing scope of HOA over landowners’
title). In the cited cases, the Utah Supreme Court distinguished between title that has vested and
title that is perfected. It stated, “[a] true quiet title action is a suit brought to quiet an existing
title against an adverse or hostile claim of another, and the effect of a decree quieting title is not
to vest title but rather is to perfect an existing title as against other claimants.” In re Hoopiiaina
Trust, 2006 UT 53, ¶ 26, 144 P.3d at 1137 (quotations and citations omitted) (emphasis in
original). To ensure that invalid claims can be removed from title, the Court held that true quiet
title actions “are not subject to a statute of limitations.” Id. ¶ 28. The Court held such because
that has been the law of Utah at least since 1915. Id. ¶¶ 22–23 (citing Branting v. Salt Lake City,
153 P. 995 (1915)).
The United States did not respond to this argument nor address established caselaw. This
court concludes that R.S. 2477 claims brought under the Quiet Title Act are true quiet title
claims. Thus, Utah’s seven-year statute of limitations is inapplicable based on Utah law.
B.

More Particular Statute Applies

The seven-year statute of limitations also is inapplicable because a more particular statute
applies. “[P]ursuant to 28 U.S.C. § 1346(f), Congress has specified that federal courts have
exclusive jurisdiction over quiet title actions against the United States.” Abdo v. Reyes, 91 F.
When the court cites to the record, pincites refer to the ECF number at the top of the page and
not to pagination at the bottom of the page.

2

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Supp. 3d 1225, 1230 (D. Utah 2015). Quiet title actions are brought under 28 U.S.C. § 2409a.
This court noted in Abdo that “if a state or county imposed a condition on itself that would limit
its ability to proceed in an action against the United States, . . . nothing in the [Quiet Title Act]
appears to preclude such a condition.” Abdo, 91 F. Supp. 3d at 1230.
This court also noted, however, that “a well-known statutory rule of construction”
requires more “‘specific statutes [to] control over more general ones.’” Id. at 1232 n.5 (quoting
Peak Alarm Co., Inc. v. Salt Lake City Corp., 2013 UT 8, ¶ 19, 297 P.3d 592). The rule of
statutory construct is consistent with Section 78B-2-102 of the Utah Code, which states the
statutes of limitation set forth in Chapter 2 apply, “except in specific cases where a different
limitation is prescribed by statute.” Additionally, the Utah Supreme Court has stated Section
78B-2-102 “clearly contemplates that the statutes of limitation in Title 78B may be displaced by
other, more specific statutes.” Peak Alarm Co., Inc., 2013 UT 8, ¶ 20.
This court concludes the statute of limitations under 28 U.S.C. § 2409a is more particular.
It applies to quiet title actions against the United States rather than the general actions stated
under Utah Code Ann. § 78B-2-201.

Thus, the seven-year statute of limitations also is

inapplicable for that reason.
C.

Person

An issue about the definition of “person” also has been raised. As stated above, Section
78B-2-201 provides, “(1) The state may not bring an action against any person for or with
respect to any real property,” if the claim arose more than seven years earlier. Utah Code Ann. §
78B-2-201(1)(a) (emphasis added). The United States asserts that the seven-year statute of
limitations applies because the United States is included within the definition of a “person.” The
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United States contends the Utah Supreme Court necessarily decided this issue in its favor in
Garfield County v. United States, 2017 UT 41, 424 P.3d 46. Mot. to Dismiss, at 10 n.1 (ECF No.
671); Reply in Supp., at 28–29 (ECF No. 704). This court disagrees. The Utah Supreme Court
stated, “there are persuasive arguments both for and against reading the word ‘person’ to include
the United States.” Garfield Cty., 2017 UT 41, ¶ 12 n.25. Due to “the strength of [the]
competing arguments,” the Court found “it sufficient to assume for purposes of this opinion that
the word ‘person’ in section 201 and its predecessor includes the United States.” Id. (emphasis
added). When a court notes that there are competing arguments and assumes something for
purposes of the decision, the court has not reached the issue and it remains an open question.
Thus, whether the United States is a “person” under Section 78B-2-201 has not been resolved.
The issue potentially has far-reaching implications. A significant portion of the land
within the State is owned and managed by the federal government. Kane County noted “there
are millions of acres of lands that were granted to the State by the United States, but have not
been the subject of a title suit.” Mem. in Opp’n, at 29 (ECF No. 691). It then stated, “[t]he
Court should take pause and question why the United States is now asking for a finding that
Section 201 applies to bar such title suits.” Id. Kane County’s question highlights the challenge
of legislating for a future when one does not have a crystal ball, and the importance of not just
rules of construct, but rules of exception.
For example, the Utah legislature has specified the rules of statutory construction must be
followed unless “the construction would be: (i) inconsistent with the manifest intent of the
Legislature; or (ii) repugnant to the context of the statute.” Utah Code Ann. § 68-3-12(1)(a)(i)–
(ii). Those rules of exception hedge against future situations that are unknown at the time of
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legislating but would be harmful to the State were the rules of statutory construction strictly
applied.
To the extent the United States contends the State meant to divest itself of the opportunity
to pursue a quiet title action against the United States before the State even could sue the United
States, 3 the court understands why the Utah Supreme Court found the absurdity doctrine applied
to a similar argument in Garfield County. It seems such a construct would be contrary to
legislative intent and repugnant to the context of the statute. To give effect to legislative intent,
it further seems the most logical interpretation of the statute would be to find that the United
States is not included within the definition of a “person.” The court does not reach the issue,
however, because the other reasons stated above show that the seven-year statute of limitations is
not applicable to R.S. 2477 claims to quiet title. Were the court to reach the issue, it would be
doing so without that needed clarity about the future to understand the scope of such a
declaration. Accordingly, that issue must wait for another day.
II.

FEDERAL QTA’S STATUTE OF LIMITATIONS
The United States asserts even if Utah’s seven-year statute of limitations does not apply,

the federal QTA still bars three of the Bellwether roads because the United States disputed
Plaintiffs’ title to the three roads more than twelve years ago. The three roads are: K6280

The Utah statute at issue was instituted in substantially the same form while Utah was still a
territory. See Act of Feb. 16, 1872, § 3 (ECF No. 691-3 at 4). The Quiet Title Act was not
passed until 1972. Act of Oct. 25, 1972, Pub.L. No. 92–562, 86 Stat. 1176, codified at 28 U.S.C.
§ 2409a. “Only upon passage of the QTA did the United States waive its immunity with respect
to suits involving title to land. Prior to 1972, States and all others asserting title to land claims
by the United States had only limited means of obtaining a resolution of a title dispute—they
could attempt to induce the United States to file a quiet title action against them, or they could
petition Congress or the Executive for discretionary relief.” Block v. North Dakota ex rel. Bd. of
University and School Lands, 461 U.S. 273, 280 (1983).
3

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Rushbed; K6290 Rushbed Springs; and K1410. The court will address the three roads at the
same time as it issues its ruling on the jurisdictional road claims.
III.

JURISDICTION ON TITLE DISPUTES
The United States asserts the court lacks subject matter jurisdiction on the eight4

remaining roads because it has not disputed Plaintiffs’ title, meaning that the United States has
neither affirmed nor denied Plaintiffs’ title and all roads are open to motor vehicles.
On November 10, 2022, this court issued a Memorandum Decision (ECF No. 753),
addressing modifications to the Case Management Order in this case. Plaintiffs had asserted
road safety was becoming critical on certain roads, and that the Bureau of Land Management
(“BLM”) refused to consult with them for improvements because they were not “holders” of an
R.S. 2477 title. Mot. for Relief, at 2–3, 7 (ECF No. 734). According to the United States,
Plaintiffs cannot be a “holder” unless (1) title has been adjudicated by a court, or (2) the BLM
has administratively determined the validity of an R.S. 2477 claim for its own purposes. See
Mem. in Opp’n to Mot. for Relief, at 4–5 (ECF No. 736) (declining to exercise its discretionary
authority to make initial determinations and declaring it has no obligation to consult absent a
court quieting title in County’s favor).
In its November 2022 Memorandum Decision, this court raised a question about whether
the United States’ position was legally correct. The court noted the following:
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
The eight remaining roads are: K1300 Elephant Cove; K4200 Kitchen Corral; K4500 Willis
Creek; K8200 Sit Down Bench; K8600 Little Valley; K6000 House Rock Valley Road; K9000
Hole-in-the-Rock as it traverses Kane County; and G9000 Hole-in-the-Rock as it traverses
Garfield County.
4

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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 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.
Mem. Dec., at 5–6 (ECF No. 753).
Besides the United States being prohibited from using “its authority, either by delay or by
unreasonable disapproval, to impair the rights of the holder of the R.S. 2477 right of way,” the
Tenth Circuit concluded the United States also lacked “authority to make binding determinations
on the validity of the rights of way granted” under R.S. 2477. SUWA Decision, 425 F.3d at 748,
752, 757. One basis for its conclusion was that Congress has prohibited “the Department of
Interior from issuing final rules governing R.S. 2477.” Id. at 756.
Yet, it appears the United States has defined “holder” in such a way so as to defeat
having to consult with the State and County on the majority of open roads. Moreover, the United
States’ definition also has the effect of precluding the State or County from filing a Quiet Title
Action. The court recognizes that the United States may refuse to disclaim title without creating
a case or controversy. The United States also may refuse to enter into informal determinations of
title without creating a case or controversy. The act of refusing to consult on a road
improvement, however, appears to stand on different footing.
The Tenth Circuit stated in the SUWA Decision that because “FLPMA explicitly
preserved and protected R.S. 2477 rights of way in existence as of October 21, 1976, and that
those rights have the status of vested real property rights, any post-1976 changes in agency
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interpretation of the repealed statute have questionable applicability.” SUWA Decision, 425 F.3d
at 760 (emphasis added). Moreover, the Court stated, “it is hard to square . . . law-changing
discretion with the concept of property rights that vested, if at all, on or before a date almost 30
years ago. 5” Id.
As applied to this case, prior to 1976, the State and County had the eight relevant roads
open to motor vehicles and in use under their management and supervision. When FLPMA was
passed, that law preserved those rights, meaning the law preserved the State and County’s
property rights that had vested. The United States’ definition of a “holder,” however, has
interfered with the State and County’s ability to maintain the roads and the United States’
obligation to consult with the State and County on any improvements.
The Utah Supreme Court has articulated well the difference between vested title and
perfected title. A quiet title action perfects title such that one can no longer dispute who the title
owner may be. It does not vest title. This means even if one never brings an R.S. 2477 title
issue to court, it does not remove vested title. This is so not only under Utah law, but also under
federal law.
The United States Supreme Court has stated the QTA “does not purport to effectuate a
transfer of title.” Block v. North Dakota ex rel. Bd. of University and School Lands, 461 U.S.
273, 291 (1983) (emphasis added). Even in situations where the QTA statute of limitations has
run, the QTA “does not purport to strip any State, or anyone else for that matter, of any property
rights.” Id. Had Congress done so by statute, the United States Supreme Court opined it

5

That observation was made in 2005, five years before Kane County (2) was filed. It has now
been 47 years since FLPMA passed.
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“would constitute a taking of the State’s property without just compensation, in violation of the
Fifth Amendment.” Id. Thus, once title has vested, absent eminent domain, title remains with
the title holder “regardless of whether [one’s] suit to quiet its title is time-barred under [the
QTA].” Id. at 292 & n.27. A vested, but non-perfected property right, still means something.
Because the QTA only perfects title and does not vest title, the United States’ definition
of a “holder” appears to interfere with vested R.S. 2477 property rights. The United States may
always bring an action to quiet title because the QTA’s statute of limitations bars suits against
the United States, not suits by the United States against others. Consequently, if the United
States concludes at some future date that the State and County have no vested R.S. 2477 rights, it
may sue to dispute vesting and seek to perfect title in its favor. Until the United States disputes
vested title, however, the SUWA Decision and FLPMA appear to recognize the State and County
hold property rights that vested in 1976.
To the extent the United States has interfered with the State and County’s rights to
maintain the eight roads, or to the extent the United States has refused to consult with the State
and County on whether road improvements are appropriate, the United States seems to do so on
the basis that the State and County are not a “holder,” which position appears to contest the State
and County have a vested R.S. 2477 property right. The act itself of refusing to consult on a road
improvement appears to constitute a denial that the State and County hold a vested R.S. 2477
right, which denial arguably seems sufficient to trigger the case or controversy requirement of
the Quiet Title Act.

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ADDITIONAL BRIEFING
Based on the above issues, the court requests briefing on the following:
1.

As stated above, until title is perfected, the United States retains the right to

challenge a claimed right-of-way at any time. It is clear, however, that a vested right is different
from perfected title under Block.

Consequently, the parties should brief what the proper

definition is of a “holder” of an R.S. 2477 right-of-way?
2.

If a “holder” includes one who holds a vested property right, even if title has not

been perfected, does the act of refusing to consult on a road improvement, or the act of refusing
to allow regular maintenance, constitute a denial that the State and County hold an R.S. 2477
right, so as to trigger the case or controversy requirement under the QTA?
3.

If so, the parties shall brief when the statute of limitations was triggered, if at all,

for the remaining eight roads at issue.
SCHEDULING ORDER
The United States is the movant on the motion to dismiss. Accordingly, the following
briefing schedule shall apply:
1.

United States’ opening supplemental brief shall be filed on or before November 7,
2023;

2.

The State and County’s responsive briefs shall be filed on or before December 8,
2023;

3.

United States’ reply brief shall be filed on or before December 22, 2023.
CONCLUSION

For the reasons stated above, the court denies in part the United States’ Motions to
Dismiss (ECF Nos. 671, 755). Specifically, the court concludes Utah’s seven-year statute of
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limitations does not bar the Bellwether road claims. The court will address the QTA statute of
limitations claims at the same time that it addresses the jurisdictional claims. The parties shall
submit additional briefing as set forth above.
SO ORDERED this 6th day of October, 2023.
BY THE COURT:

___________________
Clark Waddoups
United States District Judge

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