State of Utah et al v. United States of America Department of the Interior et al
Filing
169
Certification of Issue to State Supreme Court. For the foregoing reasons, the court hereby ORDERS that, pursuant to Rule 41 of the Utah Rules of Appellate Procedure, the following question is certified to the Utah Supreme Court:Ar e Utah Code § 78B-2-201(1) and its predecessor statutes of limitations or statutes of repose? It is further ORDERED that the Clerk of this Court shall transmit a copy of this certification to the parties and shall submit to the Utah Supreme Court a certified copy of this certification. Should the Utah Supreme Court determine that all or any portion of the record be filed with the Court, this court further orders the Clerk shall transmit the requested records. Signed by Judges David Nuffer, Clark Waddoups, Robert J. Shelby on 4/17/2015. (jwt)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
GARFIELD COUNTY (1), UTAH and
STATE OF UTAH1
ORDER OF CERTIFICATION
Plaintiffs,
vs.
UNITED STATES OF AMERICA et al.,
Defendants,
and
Case Nos:
2:11-cv-1045
2:10-cv-1073
District Judges:
David Nuffer
Clark Waddoups
Robert J. Shelby
SOUTHERN UTAH WILDERNESS
ALLIANCE, et al.,
IntervenorDefendants.
1
Garfield County (1), Utah is a consolidated case with Garfield County (2), Utah.
Kane County (2), Utah, captioned below, is a consolidated case with Kane County (3), Utah
and Kane County (4), Utah. Kane County (1), Utah, No. 2:08-cv-315 remains separate from
the other Kane County cases due to its earlier filing.
KANE COUNTY (2), UTAH
Plaintiff,
STATE OF UTAH
Intervenor-Plaintiff,
vs.
UNITED STATES OF AMERICA et al.,
Defendants,
and
SOUTHERN UTAH WILDERNESS
ALLIANCE, et al.,
IntervenorDefendants.
The State and many Counties seek to quiet title rights in certain roads crossing federal
land. The litigation encompasses more than 20 different cases (“R.S. 2477 Road Cases”)
now pending in federal court,2 involves approximately 12,000 roads, and impacts most areas
2
Beaver County and State of Utah v. United States, 2:12-cv-423; Box Elder County
and State of Utah v. United States, 1:12-cv-105; Carbon County (1), Utah v. United States,
2:11-cv-1043 (now consolidated with Carbon County (2), Utah and State of Utah v. United
States, 2:12-cv-427); Daggett County and State of Utah v. United States, 2:12-cv-447;
Duchesne County and State of Utah v. United States, 2:12-cv-425; Emery County (2), Utah
and State of Utah v. United States, 2:12-cv-429; Garfield County (1), Utah and State of Utah
v. United States, 2:11-cv-01045 (now consolidated with Garfield County (2), Utah and State
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of the State. A State law issue has arisen with respects to the roads that may have farreaching implications for the State and its Counties. Accordingly, in deference to the State’s
right to determine the meaning of its laws, the United States District Court for the District
of Utah, sua sponte and pursuant to Rule 41 of the Utah Rules of Appellate Procedure,
hereby certifies and requests that the Utah Supreme Court answer the following question of
law:
Are Utah Code § 78B-2-201(1) and its predecessor statutes of limitations
or statutes of repose?
The foregoing question of law is controlling in the two captioned cases, as well as the
other cases pending before this court. There appears to be no controlling Utah law on this
issue.
of Utah v. United States, 2:12-cv-478); Grand County and State of Utah v. United States,
2:12-cv-466; Iron County and State of Utah v. United States, 2:12-cv-472; Juab County (2),
Utah and State of Utah v. United States, 2:12-cv-462 (now consolidated with Juab County
(3), Utah and State of Utah v. United States, 2:12-cv-00584); Kane County (2), Utah and
State of Utah v. United States, 2:10-cv-1073 (now consolidated with Kane County (3), Utah
and State of Utah v. United States, 2:11-cv-1031 and Kane County (4), Utah and State of
Utah v. United States, 2:12-cv-476); Millard County and State of Utah v. United States,
2:12-cv-451; Piute County and State of Utah v. United States, 2:12-cv-428; Rich County and
State of Utah v. United States, 2:12-cv-424; San Juan County and State of Utah v. United
States, 2:12-cv-467; Sanpete County and State of Utah v. United States, 2:12-cv-430; Sevier
County and State of Utah v. United States, 2:12-cv-452; Tooele County and State of Utah v.
United States, 2:12-cv-477; Uintah County and State of Utah v. United States, 2:12-cv-461;
Utah County and State of Utah v. United States, 2:12-cv-426 ; Washington County and State
of Utah v. United States, 2:12-cv-471; Wayne County and State of Utah v. United States,
2:12-cv-434.
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FACTUAL AND PROCEDURAL BACKGROUND
The State and various Counties have asserted ownership of alleged rights-of-way for
roads crossing federal lands. They do so based on Revised Statute 2477 (“R.S. 2477”),
which reads: “And be it further enacted, That the right of way for the construction of
highways over public lands, not reserved for public uses, is hereby granted.” Act of July 26,
1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 42 U.S.C. § 932. The Act was repealed on
October 21, 1976 by the Federal Land Policy and Management Act of 1976 (“FLPMA”). See
Pub. L. No. 94-579, § 706(a), 90 Stat. 2793. If an R.S. 2477 right-of-way existed by October
21, 1976, it was grandfathered by FLPMA. Significantly, however, no further rights-of-way
could accrue across federal land after FLPMA’s passage. Thus, any right or title claimed by
the State and Counties had to have accrued by October 21, 1976.
Due to the complexity of the cases, the court has entered a comprehensive case
management order staying most of the R.S. 2477 Road Cases, except for preservation
discovery. The Garfield County (1) and Kane County (2) cases, however, remain active.
Judge Waddoups oversees the case management of all of the R.S. 2477 Road Cases, Judge
Nuffer presides over the Garfield County (1) case, and Judge Shelby presides over the Kane
County (2) case.
The Garfield County (1) case is a consolidated action encompassing 736 roads in
Garfield County. The United States has moved to dismiss over 450 of the claims on various
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grounds. In its role as limited, permissive intervenor, the Southern Utah Wilderness Alliance
and others (collectively “SUWA”) filed a memorandum in support of the United States’
motion. SUWA’s memorandum asserts that Utah Code § 78B-2-201(1) is a seven-year
statute of repose, not a statute of limitations. If SUWA’s assertion is correct, then the R.S.
2477 Road Cases pending before this court would be barred.
STATUTES and CASE LAW
The Quiet Title Act (“QTA”), 28 U.S.C. § 2409a, provides the means whereby the
State and Counties may establish their asserted rights in certain roads against the United
States, and federal courts have exclusive jurisdiction over such claims pursuant to 28 U.S.C.
§ 1346(f). At a minimum, the State and Counties have twelve years to assert a claim under
the QTA once a cause of action has accrued.
As early as 1907, however, Utah elected to impose a limitation on itself regarding
when it may assert a right to real property. See Pioneer Inv. & Trust Co. v. Bd. of Educ., 99
P. 150, 152 (Utah 1909) (stating “the state is barred from bringing an action for the recovery
of real property claimed by it, unless such is commenced within seven years”) (citing Comp.
Laws 1907, § 2856)). By at least 1917, the Compiled Laws of Utah provided:
The state will not sue any person for or in respect to any real property,
or the issues or profits thereof, by reason of the right or title to the
same, unless:
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1. Such right or title shall have accrued within seven years before any
action or other proceeding for the same shall be commenced[.]
Van Wagoner v. Whitmore, 199 P. 670, 671 (Utah 1921) (quoting Comp. Laws 1917, § 6446)
(alteration omitted) (emphasis added). The statutory provision later became Utah Code § 7812-2 (1953) and remained essentially unchanged until 2008.
In 2008, the Utah Legislature amended and renumbered the statute, which now reads
as follows:
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:
(1) the right or title to the property accrued within seven years before
any action or other proceeding is commenced[.]
Id. § 78B-2-201(1) (2014) (emphasis added) (revised and renumbered by L. 2008, ch. 3, §
639).
Under Utah law, “a statute of limitations period always commences . . . when the
cause of action arises, which usually is the occurrence of an injury or the discovery of an
injury.” Berry v. Beech Aircraft Corp., 717 P.2d 670, 672 (Utah 1985). In contrast, “[a]
statute of repose bars all actions after a specified period of time has run from the occurrence
of some event other than the occurrence of an injury that gives rise to a cause of action.” Id.
SUWA contends the present and prior versions of Section 78B-2-201(1) constitute a
statute of repose because the seven-year limitation commences when the right or title to
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property accrued, not when a cause of action arose. Because every R.S. 2477 right-of-way
had to accrue no later than October 21, 1976, if Section 78B-2-201(1) or its predecessor is
a statute of repose, SUWA contends any action to quiet title had to be brought by October
21, 1983, which is seven years after FLPMA repealed R.S. 2477.
This same issue was raised in San Juan County v. United States, No. 2:04-cv-552,
2011 U.S. Dist. LEXIS 58460 (D. Utah May 27, 2011). The court declined to address it,
however, because the “issue was not preserved for trial in the Final Pretrial Order.” Id. at
*77 n.4 (emphasis in original). Likewise, the issue undergirds the pending case of Abdo v.
Reyes, No. 140301234, filed in the Third Judicial District Court in and for Tooele County,
State of Utah.3 The issue therefore is a recurring one and dispositive.
In addition to Pioneer Investment & Trust Co. and Van Wagoner, a number of other
Utah cases have addressed or mentioned Section 78B-2-201 or its predecessor. In each case,
the courts have assumed the Section is a statute of limitations that applies only when there
has been an injury to “the right or title to the property accrued.” Additionally, in Davis v.
Provo City Corp., 2008 UT 59, ¶ 17,193 P.3d 86, the Utah Supreme Court used the Section
as an example of what constitutes a statute of limitations. It stated “[a] statute of limitations
3
On April 6, 2015, Judge Waddoups temporarily enjoined the Abdo case under the
All Writs Act, 28 U.S.C. § 1651, until he has an opportunity to address whether an injunction
is appropriate under the Anti-Injunction Act, 28 U.S.C. § 2283 (allowing an injunction when
necessary in aid of a court’s jurisdiction). See Tooele County and State of Utah v. United
States, 2:12-cv-477 (Dkt. Nos. 89, 90).
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contains phrases such as ‘may not bring an action’” that “directly address whether an action
may be filed.” Id. (quoting Utah Code § 78B-2-201 (2008)). The issue before the Court was
not, however, whether the Section is a statute of repose. That issue does not appear to have
been addressed by the Court in any of the cases. Accordingly, this court certifies the question
and requests that it be addressed by the Utah Supreme Court.
ORDER
For the foregoing reasons, the court hereby ORDERS that, pursuant to Rule 41 of the
Utah Rules of Appellate Procedure, the following question is certified to the Utah Supreme
Court:
Are Utah Code § 78B-2-201(1) and its predecessor statutes of
limitations or statutes of repose?
It is further ORDERED that the Clerk of this Court shall transmit a copy of this
certification to the parties and shall submit to the Utah Supreme Court a certified copy of this
certification. Should the Utah Supreme Court determine that all or any portion of the record
be filed with the Court, this court further orders the Clerk shall transmit the requested
records.
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DATED this 17th day of April, 2015.
BY THE COURT:
__________________________________
David Nuffer
United States District Judge
__________________________________
Clark Waddoups
United States District Judge
__________________________________
Robert J. Shelby
United States District Judge
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