San Juan County v. U.S.

SAN JUAN COUNTY, UTAH, a Utah political subdivision, Plaintiff,STATE OF UTAH, Intervenor-Plaintiff,

v. UNITED STATES OF AMERICA, DEPARTMENT OF THE INTERIOR,NATIONAL PARK SERVICE, Defendants.

Civil No. 2:04-CV-0552BSJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

Dated: May 27, 2011

FINDINGS OF FACT, MEMORANDUM OPINION & ORDER

A mammoth stone angel with folded wings leans against the buttress of a gigantic arch that is free-standing on the brink of a canyon. Desert-varnished walls form the rear flank¹

[T]his arch has inspired several descriptions. Some have called it "Pegasus," inspired by the ancient Greek myth of the flying horse. Chaffee C. Young named it "Angel Arch," seeing in stone a heavenly messenger. Most now see it that way, and understandably are awed and even reverential in the presence of its majesty. A tremendous angel, great wings folded to the back, head bowed in prayer or meditation, seems to lean against a supportive arch . . . atop a steep, salmon-pink cliff.²

One of Canyonlands National Park's premiere geological attractions, Angel Arch is yet "considered by many people to be the most beautiful and spectacular arch in the park if not in the entire canyon country."³ At the time the Park was created in 1964, Congress acknowledged that "Angel Arch in Salt Creek Canyon is incomparable." H.R. Rep. No. 1823, 88th Cong., 2nd Sess., at 6 (1964), reprinted in 1964 U.S.C.C.A.N. 3718, 3719; S. Rep. No. 381, 88th Cong., 1st Sess., at 6 (1963) (same).

This case concerns motor vehicle access to Angel Arch and its environs by visitors to Canyonlands National Park. Plaintiffs San Juan County and the State of Utah contend that ahistorical R.S. 2477⁴ public highway right-of-way along Salt Creek guarantees public access to Angel Arch using at least a limited number of four-wheel-drive motor vehicles. The federal defendants dispute this assertion, arguing that no such right-of-way vested in the public under R.S. 2477 prior to the creation of Canyonlands National Park in 1964, and that since the Park was created, vehicle access to Angel Arch has been governed as a matter of National Park Service policy, including the agency's 2004 decision to close Salt Creek Canyon to motor vehicle access beyond a gate placed on the trail near Peekaboo Spring, roughly 8.8 miles below Angel Arch itself. The federal defendants also argue that the plaintiffs' right-of-way claim runs afoul of the twelve-year statute of limitations under the federal Quiet Title Act; thus, the above-captioned action is time-barred and this court need not reach the merits. Plaintiffs respond that the commencement of this action in 2004 fell well within the Act's twelve-year window.

Resolution of the right-of-way issue turns upon matters of legal interpretation and historical fact.

Beginning September 14, 2009, this case was tried to the court for nine days. The court heard testimony, received numerous exhibits, and conducted a site visit at Canyonlands National Park on October 6, 2009. The court heard closing arguments on October 9, 2009, and took the matter under advisement. Having reviewed and considered the evidence presented, including thefirsthand observation of the site by court and counsel, and having reviewed and considered the arguments of counsel, the briefs submitted and the pertinent legal authorities, this court now rules on the various factual and legal questions presented at trial.

JURISDICTION & VENUE

This is a civil action to quiet title to a public highway right-of-way pursuant to the Quiet Title Act, 28 U.S.C. § 2409a, invoking the subject matter jurisdiction of the court under 28 U.S.C. §1346(f). Venue is proper pursuant to 28 U.S.C. § 1391(e)(2) in that the claimed property interest at issue is located within the State of Utah, and lies in the Central Division of the District of Utah because the claimed property interest at issue is located in San Juan County, Utah. See 28 U.S.C. § 125(2).

R.S. 2477 RIGHTS-OF-WAY: THE INTERPRETIVE FRAMEWORK

History of the Statute

The history of R.S. 2477 has itself become a well-trodden path:

"In 1866, Congress passed an open-ended grant of 'the right of way for the construction of highways over public lands, not reserved for public uses.'" S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 740 (10th Cir. 2005) (quoting Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by Federal Land Policy Management Act of 1976 (FLPMA), Pub.L. No. 94-579 § 706(a), 90 Stat. 2743). "This statute, commonly called 'R. S. 2477,' remained in effect for 110 years, and most of the transportation routes of the West were established under its authority." Id. "In 1976, however, Congress abandoned its prior approach to public lands and instituted a preference for retention of the lands in federal ownership, with an increased emphasis on conservation and preservation." Id. at 741. "As part of that statutory sea change, Congress repealed R.S. 2477." Id. "There could be no new R.S. 2477 rights of way after 1976." Id. "But even as Congress repealed R.S. 2477, it specified that any 'valid' R.S. 2477 rights of way 'existing on the date of approval of th[e] [FLPMA]' (October 21, 1976) would continue in effect." Id. (quoting Pub.L. No. 94-579 § 701(a), 90 Stat. 2743, 2786 (1976)). Congress also directed that "[a]ll actions [taken] by the Secretary concerned under this Act[the FLPMA] shall be subject to valid existing rights." 43 U.S.C. § 1701 historical note (h).

Kane County, Utah v. Salazar, 562 F.3d 1077, 1079 (10th Cir. 2009).

"There is no legislative history that sheds light on why Congress included the highway grant as section 8 in the Mining Act of 1866 . . . or on exactly what Congress intended by the language of the section. . . . The principal focus of the floor debates on the Act was on alternatives for disposing of the mineral lands of the United States, and section 8 was not discussed." Pamela Baldwin, Highway Rights of Way on Public Lands: R.S. 2477 and Disclaimers of Interest (Congressional Research Service Report for Congress, Order Code RL32142) 26 (Nov. 7, 2003) (footnote omitted); see id. at 26 n.98 (summarizing legislative history of 1866 Act). "Therefore, in seeking clarification of the intent of Congress in enacting R.S. 2477, we must look primarily to the words Congress actually used and to the historical context in which they were enacted." Id. at 27.

The Mining Act of 1866 established a system for the recognition of several practices that had been taking place on public domain lands. Some of the provisions directly addressed mining, other provisions related to the use of water and to rights of way. These latter provisions addressed practices that were related to mining, but had implications beyond the mining context. The Act legitimized mining claims in accordance with federal laws or regulations, state and local law, and even the local customs of miners, and provided that claimants could obtain full title to the lands on which mining claims were located. Because water was necessary for some types of mining, the Act acknowledged rights to use water, if such rights were recognized by local customs, laws, and the decisions of courts, and § 9 of the 1866 act also addressed construction of rights of way for ditches for the transport of water.

Id. at 26. The creation of roads and ensuring access to mining claims, homesteads, and other private interests "were fundamental problems implicit in the surveying system the federal government used to divide and dispose of public lands." Id. at 27. In enacting § 8 of the 1866 Act,

Congress did not resolve the issue, choosing instead to acquiesce in whatever access solutions developed on unreserved federal lands. Access problems typically were resolved among settlers as the local topography and circumstances indicated; usually, settlers simply created roads and ways across lands as needed. Subsequent settlers took title subject to established roads and ways. . . .

Id. at 27-28 (footnote omitted).

"Although the cryptic language and sparse legislative history of R.S. 2477 leave Congress's exact purpose somewhat obscure, R.S. 2477 is now generally accepted to embrace Congress's policies both to promote orderly future settlement and to legitimize the occupancy of settlers whose presence had outpaced the law." Birdsong, Bret C., Road Rage and R.S. 2477: Judicial and Administrative Responsibility for Resolving Road Claims on Public Land, 56 Hastings L.J. 523, 527 (2005).⁵ The Supreme Court has observed that R.S. 2477 was enacted toencourage roads as "necessary aids to the development and disposition of the public lands," recognizing that their maintenance was "clearly in furtherance of the general policies of the United States." Central Pac. Ry. v. Alameda County, 284 U.S. 463, 472-73 (1931).

Congress's goal—to grant free and easy access to and across federal lands—is exemplified in the self-executing way R.S. 2477 was implemented by federal land-management agencies. Early federal regulations addressing R.S. 2477 stated: "This grant becomes effective upon the construction or establishing of highways, in accordance with the State laws, over public lands not reserved for public uses. No application should be filed under this act, as no action on the part of the Federal Government is necessary."

Matthew L. Squires, Federal Regulation of R.S. 2477 Rights-of-Way, 63 NYU Ann. Surv. of Am. L. 547, 558 (2008) (footnote omitted) (quoting Regulations Governing Rights-of-Way for Canals, Ditches, Reservoirs,Water Pipe Lines, Telephone and Telegraph Lines, Tramroads, Roads and Highways, Oil and Gas Pipe Lines, Etc., 56 I.D. 533, 551 (1938)).⁶

What Makes a Highway?

As the court of appeals explained in its prior opinion in this case:

R.S. 2477 provided for "right[s]-of-way for the construction of highways over public lands, not reserved for public uses." An Act Granting the Right of Way to Ditch and Canal

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