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Kane County v. United States

United States Court of Appeals, Tenth Circuit

December 2, 2014

KANE COUNTY, UTAH, a Utah political subdivision, Plaintiff - Appellant/Cross-Appellee,

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Shawn T. Welch (Tamara L. Stevenson and Ryan R. Jibson of Holland & Hart, L.L.P., on the briefs), Salt Lake City, Utah, for Plaintiff - Appellant - Cross-Appellee.

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, Utah, for Intervenor Plaintiff - Appellant - Cross-Appellee State of Utah.

Heidi J. McIntosh and Alison C. Flint of Earthjustice, Denver, Colorado, for Amici Curiae Sierra Club.

Stephen H.M. Bloch, David T. Garbett and Joseph J. Bushyhead of Southern Utah Wilderness Alliance, Salt Lake City, Utah; Matthew S. Hellman, Jerome L. Epstein and Caroline M. DeCell of Jenner & Block, L.L.P., Washington, D.C., for Amici Curiae Southern Utah Wilderness Alliance and The Wilderness Society.

Before KELLY, BACHARACH, and PHILLIPS, Circuit Judges.


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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 28 U.S.C. § 1291. We consider five issues involving the application of the Quiet Title Act, 28 U.S.C. § 2409a, and Section 8 of the Mining Act of 1866, more commonly known as " Revised Statute (R.S.) 2477." We affirm in part, reverse in part, and remand.


In April of 2008, Kane County brought an action under the Quiet Title Act (QTA), 28 U.S.C. § 2409a, to quiet title to five roads or road segments. It later amended its complaint to cover a total of fifteen roads or road segments. The QTA supplies a limited waiver of sovereign immunity for the settlement of property claims against the United States.

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 43 U.S.C. § 932), repealed by Federal Land Policy and Management Act of 1976 (FLPMA), Pub. L. No. 94-579, § 706(a), 90 Stat. 2743, 2793. R.S. 2477 was " a standing offer of a free right of way over the public domain." San Juan Cnty. v. United States, 754 F.3d 787, 791 (10th Cir. 2014) (quoting S. Utah Wilderness Alliance (SUWA) v. Bureau of Land Mgmt., 425 F.3d 735, 741 (10th Cir. 2005)). Though R.S. 2477 was repealed in 1976 by the FLPMA, it preserved existing rights-of-way. 43 U.S.C. 1769(a).

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.

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First, they argue the district court erred in finding that Public Water Reserve 107 reserved from the operation of R.S. 2477 two parcels of lands crossed by Swallow Park/Park Wash. Road (" Swallow Park Road" ). Second, they contend the district court erred in requiring that R.S. 2477 rights-of-way be proven against the United States by clear and convincing evidence.

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," 28 U.S.C. § 2409a(a), a prerequisite to federal court jurisdiction under the QTA. Second, the United States contends the district court erred in determining the widths of Plaintiffs' rights-of-way on Swallow Park Road, North Swag Road, and Skutumpah Road.

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.


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, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983). A waiver of sovereign immunity " cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (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.

28 U.S.C. 2409a(a) (emphasis added). The QTA provides the " exclusive means by which adverse claimants [can] challenge the United States' title to real property." Block, 461 U.S. at 286. District courts are granted jurisdiction over § 2409a suits under 28 U.S.C. § 1346(f).

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

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issue; and (2) title to the property is " disputed." See Leisnoi, Inc. v. United States (Leisnoi II), 267 F.3d 1019, 1023 (9th Cir. 2001).[1] The district court found these two elements satisfied as to each of the fifteen roads at issue. The United States argues that the grounds on which the court found " disputed title" to Sand Dunes, Hancock and the four Cave Lakes roads were insufficient under § 2409a(a).

The issue of what is required to satisfy the QTA's " disputed title" requirement is one of first impression in this circuit. In interpreting § 2409a(a), we begin with the established principle that waivers of sovereign immunity are to be read narrowly and conditions on the waiver are to be " strictly observed." Block, 461 U.S. at 287; see also Mills v. United States, 742 F.3d 400, 405 (9th Cir. 2014) (" In construing the scope of the QTA's waiver, we have read narrowly the requirement that the title at issue be 'disputed.'" ).

The parties rely on a pair of Ninth Circuit cases analyzing the scope of § 2409a(a)'s waiver of sovereign immunity. In Alaska v. United States, Alaska's title to the Kandik, Nation and Black rivers depended upon whether the rivers were navigable at the date Alaska obtained statehood. 201 F.3d 1154, 1156-57 (9th Cir. 2000). QTA jurisdiction thus hinged on whether the United States had claimed an interest in the rivers by asserting they were not navigable at the time of statehood. Before the district court, the United States refused to admit or deny Alaska's allegations that the rivers were navigable at statehood. Despite the United States' failure to formally claim an interest in the case at hand, the Ninth Circuit found it had claimed an interest in the Kandik and Nation rivers. The court relied upon the United States' previous assertion before an administrative law judge that the rivers were not navigable at statehood, explaining that this past assertion created a " present cloud on the state's title." Id. The court expressed a preference against allowing potential federal claims to " lurk over the shoulder of state officials as they try to implement a coherent management plan" for the state's waterways. Id. at 1161. However, the court found no QTA jurisdiction over the Black River because the United States never " expressly asserted a claim" to it. Id. at 1164.

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 § 2409a(a). See Leisnoi II, 267 F.3d at 1024 (holding the " disputed title" requirement of the QTA can be satisfied by a third-party's assertion of an interest of the United States that " clouds the plaintiff's title" ); Leisnoi, Inc. v. United States (Leisnoi I), 170 F.3d 1188, 1192 (9th Cir. 1999). However, more recently in Mills, the Ninth Circuit did not reference the " cloud on title" standard and emphasized that the " disputed title" requirement must be " read narrowly." 742 F.3d at 405. In Mills, a miner sought access to a mine site over an R.S. 2477 right-of-way and brought suit under the QTA. Id. at 403-05. The court found no " disputed title" where land management agency officials had previously

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denied the plaintiff's petitions for a right-of-way on the grounds that they lacked the legal authority to grant the petition. Id. at 405-06. The court explained that the United States had not " expressly dispute[d]" the plaintiff's title, nor had it " taken an action that implicitly disputes" the title. Id.

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 ...

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