KANE COUNTY, UTAH, a Utah political subdivision, Plaintiff-Appellant/Cross-Appellee, and The State of Utah, Intervenor Plaintiff-Appellant/Cross-Appellee, v. UNITED STATES of America, Defendant-Appellee/Cross-Appellant.
Nos. 13-4108, 13-4109, 13-4110
United States Court of Appeals, Tenth Circuit
Dec. 2, 2014
772 F.3d 1205
These facts do not support causation because Mr. Ward does not claim retaliation by Mr. Walkoviak. In the absence of retaliation by Mr. Walkoviak, Mr. Ward could create a fact issue only through a theory of “Cat‘s Paw” liability. Under this theory, the biased motive of a subordinate can be imputed to the final decision-maker. EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 487-88 (10th Cir. 2006). But the theory does not apply when decision-makers conduct their own investigations without relying on biased subordinates. Lobato v. N.M. Env‘t Dep‘t, 733 F.3d 1283, 1295 (10th Cir. 2013).
To survive summary judgment on a “Cat‘s Paw” theory, Mr. Ward must establish
- bias by the subordinates, Mr. Rhees and Mrs. Gold,
- their influence in the decision-making process, and
- Mr. Walkoviak‘s adoption of Mr. Rhees and Ms. Gold‘s biased recommendation without an independent investigation.
English v. Colo. Dep‘t of Corr., 248 F.3d 1002, 1011 (10th Cir. 2001); BCI Coca-Cola, 450 F.3d at 487-88.
Mr. Walkoviak did not accept the panel‘s recommendation, but he interviewed all of the candidates (including Mr. Ward). Mr. Walkoviak then selected another applicant who had served as the Deputy Area Manager in Provo for three years and had experience with land-management issues, recreational issues, dam safety, planning activities, and interaction with stakeholders in the Provo area. The panel ultimately had little input into the hiring decision. That decision was made by Mr. Walkoviak. Accordingly, liability cannot be based on a “Cat‘s Paw” theory. See Simmons v. Sykes Enters., Inc., 647 F.3d 943, 950 (10th Cir. 2011) (holding that the “Cat‘s Paw” theory did not apply when the decision-makers conducted their own investigation and personally interviewed the employee before firing her). Without the “Cat‘s Paw” theory, Mr. Ward lacks any evidence of retaliation by Mr. Walkoviak. Thus, the district court properly granted summary judgment to the Department of Interior on the second claim.
V. Conclusion
Mr. Ward had to show that, but for his participation in the EEOC proceedings, he would have been given his old supervisory responsibilities or been selected as the Provo manager. He has not made this showing. Thus, we affirm the district court‘s award of summary judgment to the Department of Interior.
Sierra Club; Grand Canyon Trust; National Parks Conservation Association; Southern Utah Wilderness Alliance; the Wilderness Society, Amici Curiae.
Shawn T. Welch (Tamara L. Stevenson
David C. Shilton (Thomas K. Snodgrass and Romney S. Philpott of United States Department of Justice, Env‘t & Natural Resources Department; Robert G. Dreher and Sam Hirsch, Acting Assistant Attorney Generals; James E. Karkut and Aaron G. Moody, Of Counsel, U.S. Department of the Interior, Office of the Solicitor; on the briefs), Washington, D.C., for Defendant-Appellee-Cross-Appellant.
Anthony L. Rampton, Harry H. Souvall, Bridget K. Romano, Assistant Attorneys General, Sean D. Reyes, Utah Attorney General, Salt Lake City, UT, for Intervenor Plaintiff-Appellant-Cross-Appellee State of Utah.
Heidi J. McIntosh and Alison C. Flint of Earthjustice, Denver, CO, for Amici Curiae Sierra Club.
Stephen H.M. Bloch, David T. Garbett and Joseph J. Bushyhead of Southern Utah Wilderness Alliance, Salt Lake City,
Before KELLY, BACHARACH, and PHILLIPS, Circuit Judges.
KELLY, Circuit Judge.
This case involves a dispute between Kane County, Utah (joined by the State of Utah as intervenors) and the United States over the existence and breadth of the County‘s rights-of-way on federally owned land in Southern Utah. We previously affirmed the denial of intervention to the Southern Utah Wilderness Alliance, the Wilderness Society and the Sierra Club. Kane Cnty. v. United States, 597 F.3d 1129 (10th Cir. 2010). On March 20, 2013, the district court issued two final orders, see Kane Cnty. v. United States, 934 F.Supp.2d 1344 (D. Utah 2013) [hereinafter Kane I]; Kane Cnty. v. United States, No. 2:08-cv-00315, 2013 WL 1180764 (D. Utah Mar. 20, 2013) [hereinafter Kane II], both of which are challenged in this appeal and cross-appeal. Our jurisdiction arises pursuant to
Background
In April of 2008, Kane County brought an action under the Quiet Title Act (QTA),
Kane County asserts rights-of-way over these roads pursuant to R.S. 2477, which states that “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes, ch. 262, § 8, 14 Stat. 251, 253 (1866) (codified at
On February 26, 2010, the State of Utah filed a motion to intervene as co-plaintiff and the motion was granted. In August 2011, the district court held a nine-day bench trial that included the testimony of 26 witnesses and over 160 exhibits. On March 20, 2013, the district court issued two orders. In the first order, the district court held it had subject matter jurisdiction under the QTA over each of the fifteen roads at issue. See Kane I, 934 F.Supp.2d 1344. In the second order, the district court made findings of fact and addressed the merits of Kane County and Utah‘s claims, finding they had proven R.S. 2477 rights-of-way on twelve of the fifteen roads at issue and setting proper widths for the rights-of-way. See Kane II, 2013 WL 1180764. Both orders are challenged in this appeal.
Plaintiffs-Appellants and Cross-Appellees Kane County and Utah challenge two of the district court‘s determinations.
Defendant-Appellee and Cross-Appellant United States also raises two issues. First, it contends the district court lacked jurisdiction over Kane County‘s claims regarding the Sand Dunes, Hancock and four Cave Lakes roads because of the absence of a “disputed title to real property in which the United States claims an interest,”
Additionally, amici Southern Utah Wilderness Alliance (SUWA), the Wilderness Society and the Sierra Club (collectively “amici“) contend the district court lacked jurisdiction over Kane County‘s R.S. 2477 claim to North Swag Road because the QTA‘s limitations period had already run. This issue pertains to subject matter jurisdiction, a matter “essential to this court‘s review,” which we would address “without regard to whether the parties dispute its existence.” Elliott Indus. Ltd. P‘ship v. BP Am. Prod. Co., 407 F.3d 1091, 1104 (10th Cir. 2005). Accordingly, we address it alongside the jurisdictional arguments raised by the United States.
The issues before this court thus implicate nine roads: Sand Dunes Road, Hancock Road, the four Cave Lakes roads (denominated as K1070, K1075, K1087 and K1088), Swallow Park Road, North Swag Road and a portion of Skutumpah Road. The facts regarding these roads are discussed as they are pertinent to each issue.
Discussion
A. Quiet Title Act Jurisdiction
The United States and amici contend the district court lacked subject matter jurisdiction over certain of the QTA claims. The United States contends Kane County brought claims to roads on which no “disputed title” existed and amici contend Kane County brought claims to roads on which the QTA limitations period had run. The district court rejected these arguments, and we review its determinations de novo. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 599 F.3d 1165, 1175 (10th Cir. 2010).
The United States cannot be sued absent a waiver of sovereign immunity. See Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280 (1983). A waiver of sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4 (1969). The QTA provides such a waiver:
The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest.
Thus, for a court to have jurisdiction over a QTA claim, the plaintiff must establish that: (1) the United States “claims an interest” in the property at
The issue of what is required to satisfy the QTA‘s “disputed title” requirement is one of first impression in this circuit. In interpreting
The parties rely on a pair of Ninth Circuit cases analyzing the scope of
Though Alaska dealt with whether the United States “claimed an interest” in the rivers, other Ninth Circuit cases have applied this “cloud on title” standard to the “disputed title” element of
To the extent the Ninth Circuit still utilizes a “cloud on title” standard, we would reject it as incompatible with the rule that conditions on a waiver of sovereign immunity are to be specifically observed. See Block, 461 U.S. at 287. The “cloud on title” standard provides little guidance to parties as to what constitutes a title dispute and could lead federal courts to issue advisory opinions. Instead, we hold that to satisfy the “disputed title” element of the QTA, a plaintiff must show that the United States has either expressly disputed title or taken action that implicitly disputes it.
Under this standard, a plaintiff need not show the United States took direct action to close or deny access to a road—indirect action or assertions that actually conflict with a plaintiff‘s title will suffice. Nor is the United States shielded by sovereign immunity where it previously disputed a plaintiff‘s title but does not do so presently. Cf. Alaska, 201 F.3d at 1162. Thus, concerns about potential claims “lurk[ing] over the shoulder of state officials” are ameliorated. Id. at 1161. However, actions of the United States that merely produce some ambiguity regarding a plaintiff‘s title are insufficient to constitute “disputed title.” This accords with both the purpose of the QTA—allowing parties to settle disputes with the United States over land—and the principle that waivers of sovereign immunity are construed narrowly.
We now turn to each of the roads at issue in this appeal.
1. Sand Dunes and Hancock Roads
Sand Dunes Road is a 20-mile road running from the Utah–Arizona border to Utah State Highway 89. Near Sand Dunes is Hancock Road, a paved, two-lane road roughly ten miles in length. Both roads fall within the land administered by the Kanab Field Office, a branch of the Bureau of Land Management (BLM).
On October 31, 2008, the Kanab Field Office released the Kanab Field Office Management Plan (“the Plan“). Kane I, 934 F.Supp.2d at 1353. The Plan provides guidance for the management of roughly 554,000 acres of land administered by the BLM and was based on “a complete route inventory in 2005 and 2006.” Id. It specifies that “[n]atural and cultural resource protection is . . . accomplished by limiting motorized travel to the routes designated.” Id. However, the Plan explicitly states it “does not affect valid existing rights” and “does not adjudicate . . . or otherwise determine the validity of claimed rights-of-way.” Id. (emphasis added).
Map 9 of the Plan identifies areas that are open to cross-country, motorized vehicle use, closed to such use, or open only on designated routes. Hancock and Sand Dunes roads fall in an area where off-highway vehicle use is “Limited to Designated Open Roads and Trails.” Id. Map 10 of the Plan shows which routes in the designated area are open, closed, or limited for motor vehicle use. Hancock and Sand Dunes roads are not identified in Map 10. On January 30, 2009, after Kane County filed its amended complaint to include these roads, BLM published additional maps on its website identifying Hancock and Sand Dunes roads as “Class 3 primary roads,” a term used to denote major thoroughfares. The changes to the maps were not the product of a formal amendment process. Id.
The effect of the Plan‘s omission of Sand Dunes and Hancock roads is at best ambiguous and insufficient to create a disputed title under
Kane County relies upon several other grounds for finding a “disputed title” to the Sand Dunes, Hancock and four Cave Lakes roads that were not addressed by the district court. Kane Reply Br. 9-17. The County does not explain how any of these grounds create a “disputed title” to Sand Dunes, Hancock or the Cave Lakes roads specifically, and so we find its argument without merit. Thus, we reverse the district court and find it had no jurisdiction over the QTA claims to Sand Dunes and Hancock roads.
2. The Four Cave Lakes Roads
a. The United States’ Answer
The Cave Lakes roads (denominated as K1070, K1075, K1087 and K1088) are four short roads in southwestern Kane County crossing BLM-administered land. All four were designated as “open” under the Kanab Field Plan. Kane I, 934 F.Supp.2d at 1354. Paragraph 29 of Kane County‘s amended complaint stated: “After 1866 and prior to the repeal of R.S. 2477 on October 21, 1976, Kane County, by and on behalf of the public, accepted R.S. 2477 rights-of-way for . . . the Cave Lakes roads.” JT App. 41. The United States’ answer as to this paragraph stated: “The allegations . . . are legal conclusions to which no responsive pleading is required. To the extent a responsive pleading is required, the United States lacks sufficient information to form a belief as to the truth of the allegations.” Id. at 113. Under
The district court likened the United States’ answer to Alaska, where the Ninth Circuit held that a past claim of interest before an administrative law judge as to the Nation and Kandik Rivers amounted to a present “cloud” on the plaintiff‘s title. 201 F.3d at 1162. However, Alaska itself found no jurisdiction over the QTA claim to the Black River where, as here, the United States refused to admit or deny allegations of the river‘s navigability at the pleading stage because the allegations “consist[ed] of conclusions of law not requiring an answer.” Id. at 1163-65. Alaska thus suggests that a failure to admit
b. The United States’ Grant of Title V Permits
As to three of the Cave Lakes roads (K1070, K1075 and K1087), the district court found that the BLM‘s grant of Title V permits to private entities provided an additional ground for “disputed title” under
Nothing about the grant of Title V permits to third parties expressly or implicitly disputes Kane County‘s right-of-way. “Easements and servient estates can (and usually do) peaceably coexist.” George v. United States, 672 F.3d 942, 947 (10th Cir. 2012). Here, the permits require that the roads be maintained in accordance with Kane County standards. Further, like the Kanab Field Plan, the Title V permits state they do not affect R.S. 2477 rights-of-way; even more, they explicitly state they are “superseded” by any R.S. 2477 rights-of-way. The permits, if anything, seem a deliberate attempt not to dispute Kane County‘s title.
To be sure, “owners of the dominant and servient estates ‘must exercise [their] rights so as not unreasonably to interfere with the other.‘” S. Utah Wilderness Alliance (SUWA) v. Bureau of Land Mgmt., 425 F.3d 735, 746 (10th Cir. 2005) (quoting Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213, 174 P.2d 148, 158 (1946)). But, Kane County has produced no evidence as to how the permits interfered with any development plans. Absent such evidence, we must conclude that the Title V permits do not create a “disputed title” under
Thus, as to all four of the Cave Lakes Roads (K1070, K1075, K1087 and K1088) we reverse the district court‘s finding of jurisdiction under the QTA.
3. North Swag Road—QTA Limitations Period
Amici contend that the district court lacked jurisdiction over Plaintiffs’ R.S. 2477 claim to North Swag Road be
As discussed above, the QTA provides the exclusive means by which claimants can challenge the United States’ title to real property. But, “what the QTA gives it often proceeds to take away.” George, 672 F.3d at 944. The QTA provides two limitations provisions, one for non-states and one for states. Section 2409a(g), applicable to non-states including counties, provides:
Any civil action under this section, except for an action brought by a State, shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.
As to states, the QTA provides that for land on which the United States has made “substantial improvements” or has “conducted substantial activities pursuant to a management plan,” actions are barred unless commenced “within twelve years after the date the State received notice of the Federal claims to the lands.”
In interpreting the QTA‘s limitations provisions, we begin again with the familiar proposition that waivers of sovereign immunity are construed narrowly and conditions upon the waiver strictly observed. Block, 461 U.S. at 287. This court has held that the trigger for starting the QTA limitations period is an “exceedingly light one.” George, 672 F.3d at 944. A “range war” is not required, and plaintiffs cannot wait until the United States’ claims to title “crystallize into well-defined and open disagreements.” Id. at 946-47 (quoting Rio Grande Silvery Minnow, 599 F.3d at 1188). Concrete action by the United States is not required; “[a]ll that is necessary is a reasonable awareness that the Government claims some interest adverse to the plaintiff‘s.” Knapp v. United States, 636 F.2d 279, 283 (10th Cir. 1980). Thus, though “[k]nowledge of the claim‘s full contours” is unnecessary, id., the plaintiff must be on notice of an adverse interest asserted by the government. George, 672 F.3d at 946.
This court recently explained in San Juan County v. United States that in order to trigger the QTA limitations period against a party claiming an R.S. 2477 right-of-way, the United States must claim “exclusive control” of a road. 754 F.3d 787, 793 (10th Cir. 2014); see also McFarland v. Norton, 425 F.3d 724, 727 (9th Cir. 2005) (requiring an exclusive claim to trigger the QTA limitations period against
Amici contend that two events triggered the QTA limitations periods: (1) the BLM‘s 1980 designation of the Paria-Hackberry Wilderness Study Area and publication of this designation in the Federal Register; and (2) a 1991 meeting of the Kane County Commissioner with BLM representatives to discuss the procedures necessary for obtaining recognition of R.S. 2477 rights-of-way. The district court found these events insufficient to trigger the QTA limitations period, and we review its determinations de novo. See Rio Grande Silvery Minnow, 599 F.3d at 1175.
a. The 1980 Designation of the Paria-Hackberry WSA
In 1976, as part of a “statutory sea change,” Congress passed the Federal Land Policy and Management Act (FLPMA), initiating a “conservation and preservation” approach to federal land management. SUWA, 425 F.3d at 741. Pursuant to the FLPMA, the Secretary of the Interior was directed to conduct an inventory of “those roadless areas of five thousand acres or more” to determine which areas had wilderness characteristics as defined by the Wilderness Act.
On November 14, 1980, the BLM published its Final Intensive Inventory Decision for Utah in the Federal Register. See 45 Fed. Reg. 75,602 (Nov. 14, 1980). This inventory designated Paria-Hackberry, which encompassed North Swag Road, as a Wilderness Study Area (WSA). Upon designation of land as a WSA, the Secretary of the Interior is directed to manage such lands “in a manner so as not to impair the suitability of such areas for preservation as wilderness” and to “take any action required to prevent unnecessary or undue degradation of the lands and their resources.”
Though the FLPMA applies to “roadless” areas, a “road” for purposes of the Wilderness Act is not coterminous with a “road” under R.S. 2477. The same year the BLM designated the Paria-Hackberry WSA, the BLM Director for Utah issued a memorandum stating the following:
The wilderness inventory process uses a definition of a road that is distinct from the definition of “public” road contemplated by R.S. 2477 (
43 USC 932 ) and is a definition for inventory purposes only, not for establishing rights of counties, etc. A determination that an area should not be excluded from wilderness review because the area does not have any “roads” as defined in the Bluebook is not a determination that a road is or is not a “public” road. This is a factual determination that does not relate to wilderness....
Instruction Memorandum No. UT ‘80-240 (Mar. 6, 1980), JT App. 2300-01. A subse-
Amici argue the designation of Paria-Hackberry as a WSA and publication of this designation were sufficient to give Kane County and Utah notice of the claim of the United States. They contend this claim was adverse to the rights of Kane County and Utah because the WSA designation meant that the land was to remain “roadless” and imposed upon the BLM a duty to manage the roads on a non-impairment standard that conflicted with any claimed R.S. 2477 rights-of-way. SUWA Br. 22-31.
Amici are correct that publishing an interest in the Federal Register is sufficient to give notice to affected parties. See George, 672 F.3d at 944 (quoting
We conclude the Paria-Hackberry designation was insufficient to trigger QTA limitations periods against Kane County and Utah. The fact that the Wilderness Act covers “roadless” areas is inapposite, as the definitions for roads under the Wilderness Act and R.S. 2477 are not the same. Nor is the non-impairment standard by which the BLM was to manage the WSA sufficient to amount to a claim to North Swag road. As a preliminary matter, the Department of the Interior itself did not believe the non-impairment standard served to limit valid existing rights, including rights-of-way. See Solicitor‘s Opinion M-36910, supra. Even if the non-impairment standard did apply to R.S. 2477 rights-of-way, amici have not shown how this would amount to a claim by the United States of “exclusive control” over North Swag.
Several other BLM memoranda, both contemporaneous with and subsequent to the 1980 wilderness designation, strongly suggest that wilderness designations do not preclude the recognition of R.S. 2477 rights-of-way. The 1980 Instruction Memorandum issued by the Utah BLM Di-
This court‘s analysis in San Juan County provides further support for our decision. There, San Juan County and Utah brought several QTA claims against the United States, who argued that the
Similarly here, the BLM took no action to deny the public access to North Swag Road. See Kane I, 934 F.Supp.2d at 1362. Nor have amici established that any of the BLM‘s management responsibilities pursuant to the wilderness designation were inconsistent with Kane County or Utah‘s right-of-way on North Swag.
Amici cite three district court opinions for the proposition that the publication of a wilderness designation suffices to trigger the QTA limitations periods. See SUWA Br. 24 (citing S.W. Four Wheel Drive Assoc. v. Bureau of Land Mgmt., 271 F.Supp.2d 1308, 1312 (D.N.M. 2003), aff‘d on other grounds, 363 F.3d 1069, 1070 (10th Cir. 2004); Bd. of Comm‘rs of Catron Cnty. v. United States, 934 F.Supp.2d 1298, 1306 (D.N.M. 2013); Cnty. of Inyo v. Dep‘t of Interior, No. CV F 06-1502 AWI DLB, 2008 WL 4468747 (E.D. Cal. Sept. 29, 2008)). These cases ignore the distinction—acknowledged by the BLM itself—between “roads” for the purpose of the Wilderness Act and “roads” under R.S. 2477. See Bd. of Comm‘rs of Catron Cnty., 934 F.Supp.2d at 1304-07; S.W. Four Wheel Drive, 271 F.Supp.2d at 1310-
Thus, we conclude the designation of the Paria-Hackberry WSA and publication of this designation in the Federal Register were insufficient to trigger the limitations period against Kane County under
b. The 1991 Meeting of the Board of Commissioners
Next, amici contend the County received notice of the United States’ adverse claim to North Swag in 1991, when BLM officials met with County officials to inform them of the necessary procedures for obtaining recognition of R.S. 2477 rights-of-way. SUWA Br. 26. This meeting was brought about by the Secretary of the Interior‘s December 7, 1988 statement that it was “necessary in the proper management of Federal land to be able to recognize with some certainty the existence, or lack thereof, of public highway grants obtained under R.S. 2477.” Kane I, 934 F.Supp.2d at 1361. Nothing in the minutes of these meetings amounts to an adverse claim by the United States. That some commission members recognized a need to quiet title to R.S. 2477 rights-of-way does not establish that Kane County had reasonable awareness of an adverse claim of the United States. Thus, we affirm the district court‘s decision finding jurisdiction over North Swag Road under the QTA.
B. PWR 107 and Lands Reserved for Public Uses Under R.S. 2477
R.S. 2477 rights-of-way can only be established over public lands “not reserved for public uses.” SUWA, 425 F.3d at 784 (emphasis added). The district court concluded that Public Water Reserve (PWR) 107, a 1926 executive order, operated to “reserve” from the operation of R.S. 2477 two parcels of land across which Swallow Park Road runs. Kane II, 2013 WL 1180764, at *58-59. We disagree.
At the start of the twentieth century, monopolization of public water sources in the West had become a significant problem. See The Classification of the Public Lands, U.S. Geological Survey Bull. 537, at 42-43 (1913). “Water controlled the range,” and it became common practice for a landowner to file land scrips upon all water springs in a district, effectively allowing him to exclude all competition. See James Muhn, Public Water Reserves: The Metamorphosis of a Public Land Policy, 21 J. Land Resources & Envtl. L. 67, 68, 81 (2001) (citation omitted). This practice led to regular struggles for possession of watering holes and eventually garnered the attention of Congress and federal land agencies.
In 1910, Congress enacted the Pickett Act (or General Withdrawal Act) granting the President authority to make withdrawals for “water-power sites, irrigation, classification of lands, or other public purposes.” Act of June 25, 1910, ch. 421, 36 Stat. 847 (emphasis added).3 Pursuant to
In the face of uncertainty regarding the legal authority for such withdrawals, Congress in 1916 passed the Stock-Raising Homestead Act (SRHA), Section 10 of which provides:
[L]ands containing water holes or other bodies of water needed or used by the public for watering purposes . . . may be reserved under the provisions of the [Pickett Act] and such lands heretofore or hereafter reserved shall, while so reserved, be kept and held open to the public use for such purposes and under such general rules and regulations as the Secretary of the Interior may prescribe....
Act of Dec. 29, 1916, ch. 9, 39 Stat. 862, 865 (codified at
Pursuant to the SRHA and Pickett Act, in 1926 President Calvin Coolidge signed PWR 107, which provides:
[I]t is hereby ordered that every smallest legal subdivision of the public-land surveys which is vacant unappropriated unreserved public land and contains a spring or water hole, and all land within one quarter of a mile of every spring or water hole located on unsurveyed public land be, and the same is hereby, withdrawn from settlement, location, sale, or entry, and reserved for public use in accordance with the provisions of [the SRHA] and in aid of pending legislation.
Public Water Reserve No. 107 (Apr. 17, 1926). Unlike prior withdrawals of water, PWR 107 was a “blanket” withdrawal. Muhn, supra, at 110.
In sending the order to the President, the Secretary of the Interior explained:
The control of water in the semiarid regions of the west means control of the surrounding areas. . . . Private parties have used various lieu selection and scrip acts as a vehicle of acquiring small areas surrounding these springs and water holes, thus withdrawing them from the common use of the general public . . . and for this reason . . . it is believed advisable to make a temporary general order of withdrawal.
Letter from Hubert Work, U.S. Sec‘y of the Interior, to President Calvin Coolidge (Apr. 17, 1926).
In 1929, the Secretary of the Interior construed PWR 107 to include, inter alia, two parcels of land through which Swallow Park Road crosses. It is undisputed that the Secretary properly determined that PWR 107 applies to these parcels. Thus, the issue before this court is whether the two parcels were “reserved for public
The distinction between a reservation and a withdrawal for purposes of R.S. 2477 was set forth by this court in Southern Utah Wilderness Alliance (SUWA) v. Bureau of Land Management. 425 F.3d 735, 784-86 (10th Cir. 2005). The court in SUWA addressed whether the Coal Withdrawal of 1910, which stated that certain federal lands were “withdrawn from settlement, location, sale or entry, and reserved for classification and appraisement with respect to coal values,” operated to “reserve” those lands for public use under R.S. 2477. Id. at 784 (emphasis added). The court explained that a withdrawal merely “ma[de] land unavailable for certain kinds of private appropriation,” whereas a reservation not only withdraws the land from the operation of the public lands laws, but also dedicates the land to a particular public use. Id. (emphasis added). Further, “just because a withdrawal uses the term ‘reserved’ does not mean that it reserves land ‘for public uses.‘” Id. at 785.
The court found that despite the coal withdrawal‘s language, it did not reserve the land at issue “for public use.” The historical context of the coal withdrawal established that it “narrowly, and temporarily, removed potential coal lands from certain kinds of private appropriation.” Id. at 785. The land was withdrawn to allow the United States to “reexamine and reclassify lands which it thought might have exceptional value“—insufficient, in the court‘s view, to amount to a reservation. Id. (citation omitted). Further, common sense dictated that the withdrawal, which permitted widespread settlement under public law, “was not meant to cut off the right to establish access to those claims.” Id. at 786. “[I]t would make little sense for Congress to open public lands to private claims but forbid settlers to construct highways to access those claims.” Id.
Whether PWR 107 “reserves” land for “public use” presents a closer question than the coal withdrawal at issue in SUWA. PWR 107 goes beyond the mere temporary appropriation SUWA found the Coal Withdrawal to be. Further, PWR 107 withdrew land to “be kept and held open to the public” for “watering purposes” under the SRHA—certainly more of a “public use” than withdrawing lands for reclassification and appraisal. However, SUWA explained that a reservation must set aside land for a specific public purpose—such as a park, military post, or Native American land—and PWR 107 simply set aside land for the general purpose of preserving water access to the public. See id. at 784 (citing 63C Am.Jur.2d Public Lands § 31 (2005)).
Determinative here is the fact that if PWR 107 did in fact operate to “reserve” land from the operation of R.S. 2477, its effect was the precise opposite of its purpose. PWR 107 sought to prevent private appropriation and monopolization of water sources in order to guarantee public access to these water sources. If PWR 107 “reserved” land from R.S. 2477, the sole means for the public to construct roads to access these water sources would be eliminated. See id. at 786 (“R.S. 2477 was essentially the only authority by which highways could be established across public lands by state and local governments.” (quoting BLM in previous litigation)). As in SUWA, it would be nonsensical for Congress and the President to preserve the public‘s access to watering springs “but forbid settlers to construct highways to access” these springs. Id. at 786. That Congress or the President intended to set aside this land for public watering purposes yet silently deny the public the
The United States suggests that R.S. 2477 rights-of-way are not the only ways for the public to access watering holes reserved under PWR 107 and suggests three alternatives. First, it contends that the 1925 Department of Interior regulation Circular No. 1028 “fully protected public access to water sources.” Aplee. Br. 56. But Circular No. 1028 merely allowed citizens to apply for a permit to “improve the productivity of any water hole or source of water supply” within a reserve or “conduct such waters from their source within a reserve to a point or place more convenient for public use“; the regulation does not provide for general public access to use the sources. See Supp.App. 103. Next, the United States points to federal regulations setting forth procedures for obtaining a right-of-way across reserved lands. Aplee. Br. 57 (citing 43 C.F.R. § 244.47 (1943)). But these regulations did not come about until 1943, seventeen years after PWR 107. Finally, the United States argues that, as the district court observed, Plaintiffs could simply request a right-of-way pursuant to the FLPMA Title V permit process. Aplee Br. 58 n. 27. Perhaps so, but this argument suffers the same flaw as the prior one: the Title V permit process did not become available until the passage of the FLPMA in 1976. See Pub.L. No. 94–579, Title V, § 501, 90 Stat. 2776 (Oct. 21, 1976) (codified at
In SUWA, the court found that common sense dictated that a coal withdrawal that permitted widespread settlement under homestead laws “was not meant to cut off the right to establish access to those claims.” 425 F.3d at 786. The same rationale applies here. R.S. 2477 was “essentially the only authority” by which the public could establish roads across federal lands. Id. If PWR 107 cut off that authority, no roads could be developed to access the very water PWR 107 aimed to preserve for public use.
For the foregoing reasons, we conclude PWR 107 was not a “reservation” for the purposes of R.S. 2477 and thus reverse the district court‘s determination that Plaintiffs could not establish a right-of-way on the segment of Swallow Park Road crossing these parcels. On the remainder of Swallow Park Road, the district court found Plaintiffs presented sufficient evidence to establish an R.S. 2477 right-of-way. Kane II, 2013 WL 1180764, at *52. Because the district court found that “no evidence was presented that the public has been denied access to [the] portions of the road crossing . . . the PWR 107 parcels” and that “the public was able to travel the full length of [Swallow Park Road] as often as it found it convenient or necessary,” Kane County and Utah have also established an R.S. 2477 right-of-way over the portion of Swallow Park Road that crosses the PWR 107 parcels as well. Id.
C. Standard of Proof
The district court required Plaintiffs to prove their R.S. 2477 rights-of-way by clear and convincing evidence and found that Plaintiffs had not met this burden as to three of the Cave Lakes roads, K1075, K1087 and K1088. Kane II, 2013 WL 1180764, at *43-45, *55. Kane County and Utah appeal as to K1075 and contend that “preponderance of the evidence” is the appropriate standard of proof for establishing R.S. 2477 rights-of-way. Because we concluded above that the district court erred in exercising jurisdiction over Cave
D. Scope of the Rights-of-Way: North Swag, Swallow Park, and Skutumpah Roads
Swallow Park Road is a narrow, five-mile stretch of dirt road in Western Kane County. A four-mile stretch of the road has a 10-12 foot travel surface with vehicles unable to pass. Similarly, North Swag Road is a narrow dirt road approximately five miles long with a travel surface of ten feet. Skutumpah Road is a major two-lane thoroughfare with a travel surface of 24-28 feet.
The district court found Plaintiffs had established R.S. 2477 rights-of-way on North Swag, Swallow Park, and Skutumpah roads. Kane II, 2013 WL 1180764, at *51-53, *60-62. It determined Plaintiffs held 24-foot rights-of-way on Swallow Park and North Swag Road and a 66-foot right-of-way on Skutumpah Road. The United States contends that the district court committed two errors. First, the United States argues the court failed to base the North Swag and Swallow Park right-of-way widths on uses that were established as of 1976, when R.S. 2477 was repealed.4 Aplee. Br. 38-44. Second, it contends the district court improperly allowed room for unspecified future improvements to North Swag, Swallow Park and Skutumpah roads. Id. at 45-50. We agree with the United States on both points and remand to the district court.
1. “Reasonable and Necessary” in Light of Pre-1976 Uses
The FLPMA repealed R.S. 2477 in 1976 but preserved existing rights-of-way. See
The width of the road, however, is not limited to the actual beaten path as of October 21, 1976. Hodel, 848 F.2d at 1083; SUWA, 425 F.3d at 746. Courts look to state law to determine the appropriate width, Hodel, 848 F.2d at 1083, and under Utah law, the width of a public road is that which is “reasonable and necessary under all the facts and circumstances.” Memmott v. Anderson, 642 P.2d 750, 754 (Utah 1982). Thus, the road can be “widened to meet the exigencies of increased travel,” including where necessary to ensure safety. Hodel, 848 F.2d at 1083-84 (citation omitted). However, the ” ‘reasonable and necessary’ standard must be read in the light of traditional uses to which the right-of-way was put.” Id. at 1083 (emphasis added). Thus, the proper inquiry is what width is reasonable and necessary in light of the pre-1976 uses of the road. Id. at 1084 (holding that improvement of the Burr Trail was “reasonable and necessary to ensure safe travel” in light of the pre-1976 uses of livestock transportation, oil, water and mineral development and tourism).
The district court made only a passing reference to Hodel and SUWA‘s mandate that the reasonable and necessary standard be viewed in light of pre-1976 uses and did not appear to apply this standard to Swallow Park and North Swag
The FLPMA “had the effect of ‘freezing’ R.S. 2477 rights as they were in 1976.” SUWA, 425 F.3d at 741. It brought about a “statutory sea change” that “instituted a preference for retention of the lands in federal ownership, with an increased emphasis on conservation and preservation.” Id. These policies inform our determination of the scope of R.S. 2477 rights-of-way and call for caution in allowing improvements or expansions beyond the width of R.S. 2477 roads in 1976. As this court has consistently held, rights-of-way may be expanded beyond their 1976 widths only where reasonable and necessary in light of pre-1976 uses.
2. Unspecified Future Improvements
The district court determined that a 60-foot right-of-way was appropriate for Skutumpah Road and explained that this width would allow “room to address any future realignments or other improvements needed to increase safety.” Kane II, 2013 WL 1180764, at *64. As to Swallow Park and North Swag roads, the court determined 24-foot rights-of-way were appropriate, explaining that this width “allow[ed] for maintenance and improvements.” Id. at *65. The United States contends that the district court erred in allowing room for unspecified future improvements. We agree.
Hodel explained that “the initial determination of whether activity falls within an established right-of-way is to be made by the BLM and not the court.” 848 F.2d at 1084 (citation omitted). SUWA clarified this statement by drawing a sharp distinction between “routine maintenance” and “improvements” to R.S. 2477 rights-of-way. 425 F.3d at 749. When a right-of-way holder undertakes routine maintenance, it need not consult with the pertinent federal land management agency. But, before a holder makes “improvements” to a right-of-way, the land management agency must be consulted to allow it an opportunity to determine if the improvement is “reasonable and necessary” and to “study potential effects, and if appropriate, to formulate alternatives that serve to protect the lands.” Id. at 748. Only in the event of a disagreement at this stage can the parties resort to the courts. Id.
Plaintiffs argue that the United States’ right under SUWA to be consulted prior to improvements on the right-of-way was not violated because the district court explained that “realignments or improvements would require consultation with the BLM before they are undertaken.” Kane II, 2013 WL 1180764, at *64 n. 33. But this places the cart before the horse. A court can find, as did the court in Hodel, that certain proposals for improvement are “reasonable and necessary” in light of the traditional uses of the road, so long as the BLM was consulted in advance. 848 F.2d
AFFIRMED in part, REVERSED in part, and REMANDED.5
Patricia FRANZA, as Personal Representative of the Estate of Pasquale F. Vaglio, Plaintiff-Appellant, v. ROYAL CARIBBEAN CRUISES, LTD., a Liberian corporation, Defendant-Appellee.
No. 13-13067.
United States Court of Appeals, Eleventh Circuit.
Nov. 10, 2014.