FILED

United States Court of Appeals

Tenth Circuit

December 2, 2014
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
KANE COUNTY, UTAH, a Utah
political subdivision,
Plaintiff - Appellant/CrossAppellee,
and
THE STATE OF UTAH,
Intervenor Plaintiff Appellant/Cross-Appellee,
v.

Nos. 13-4108, 13-4109 & 13-4110

UNITED STATES OF AMERICA,

Defendant - Appellee/CrossAppellant.
------------------------SIERRA CLUB; GRAND CANYON
TRUST; NATIONAL PARKS
CONSERVATION ASSOCIATION;
SOUTHERN UTAH WILDERNESS
ALLIANCE; THE WILDERNESS
SOCIETY,
Amici Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:08-CV-00315-CW)

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 - CrossAppellee.
David C. Shilton (Thomas K. Snodgrass and Romney S. Philpott of United States
Department of Justice, Envt & 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.

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 Countys 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.
2:08cv00315, 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.

Background
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
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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 coplaintiff 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 Utahs 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-ofway. 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 courts determinations. 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
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evidence.
Defendant-Appellee and Cross-Appellant United States also raises two
issues. First, it contends the district court lacked jurisdiction over Kane Countys
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 Countys R.S. 2477 claim to North Swag
Road because the QTAs limitations period had already run. This issue pertains
to subject matter jurisdiction, a matter essential to this courts review, which
we would address without regard to whether the parties dispute its existence.
Elliot Indus. Ltd. Pship 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
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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.
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
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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 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 QTAs 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 QTAs waiver, we have read narrowly
the requirement that the title at issue be disputed.).

Though some courts appear to combine the two QTA elements into one,
see, e.g., Alaska v. United States, 201 F.3d 1154, 1160 (9th Cir. 2000) (analyzing
the issue as whether the United States claim[ed] an interest); Mills v. United
States, 742 F.3d 400, 405 (9th Cir. 2014) (relying on Alaska but analyzing the
issue simply as whether a disputed title exists), most courts appear to follow
Leisnoi II and analyze the elements separately, as did the district court. See, e.g.,
Mich. Prop. Ventures, LLC v. United States, No. 1410215, 2014 WL 2895485, at
*46 (E.D. Mich. June 26, 2014).
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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, Alaskas
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, 115657
(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
Alaskas 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 Unites 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 states 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
states 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
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(holding the disputed title requirement of the QTA can be satisfied by a thirdpartys assertion of an interest of the United States that clouds the plaintiffs
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
40305. The court found no disputed title where land management agency
officials had previously denied the plaintiffs petitions for a right-of-way on the
grounds that they lacked the legal authority to grant the petition. Id. at 40506.
The court explained that the United States had not expressly dispute[d] the
plaintiffs 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
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action to close or deny access to a roadindirect action or assertions that actually

conflict with a plaintiffs title will suffice. Nor is the United States shielded by
sovereign immunity where it previously disputed a plaintiffs 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 plaintiffs title are insufficient to constitute disputed title. This
accords with both the purpose of the QTAallowing parties to settle disputes
with the United States over landand 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 . . .
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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-ofway. 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 district court found that the Plans omission of Hancock and Sand
Dunes roads from the initial maps had the practical effect of closing the roads.
Id. at 1357. Because the republished maps were not the product of a formal
amendment process, the court held that an ambiguity existed as to the legal
status of the roads, creating a cloud on title sufficient for jurisdiction under
2409a(a). Id. at 1354, 1358. We disagree.
The effect of the Plans omission of Sand Dunes and Hancock roads is at
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best ambiguous and insufficient to create a disputed title under 2409a(a). The
Plan explicitly declared it did not adjudicate or affect rights-of-way. Further,
though the Plan marked certain roads as closed, Hancock and Sand Dunes were
not marked as closed; they simply were not marked at all. Though a provision of
the Plan suggested travel was limited to designated routes, the effect of this
provision is unclear, as the United States took no action to limit travel to such
routes. Regardless of whether the United States was entitled to clarify the
original maps with additional maps online, see id. at 135758, the original maps
did not amount to a disputed title. The district court was correct in concluding an
ambiguity exist[ed] regarding the legal status of the roads, id. at 1354;
however, this ambiguity is insufficient to constitute a disputed title under
2409a(a).
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. 917. 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

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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 Countys 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 Fed. R. Civ. P. 8(b)(5), this response is
treated as a denial. The district court found this denial of the allegations created
a disputed title sufficient for jurisdiction under the QTA. Kane I, 934 F. Supp.
2d at 1358. We disagree.
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
plaintiffs 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 rivers navigability at the pleading stage
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because the allegations consist[ed] of conclusions of law not requiring an

answer. Id. at 116365. Alaska thus suggests that a failure to admit allegations
cannot alone suffice to show a disputed title under 2409a(a). Though a
disclaimer of title by the United States does operate to remove the jurisdiction of
the court under the QTA, see 28 U.S.C. 2409a(e), a disclaimer is not necessary
for the United States to challenge jurisdiction under 2409a(a). See Leisnoi I,
170 F.3d at 1192 (Subsection (a) is the one that confers jurisdiction . . . .
Nothing in subsection (e) qualifies those requirements.). Moreover, as a
practical matter, requiring the United States to either admit allegations or waive
sovereign immunity under 2409a(a) would place a tremendous and unfair
burden upon it at the pleading stage. Thus, we conclude the United States
answer is insufficient to constitute a disputed title under 2409a(a).
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 BLMs grant of Title V permits to private entities
provided an additional ground for disputed title under 2409a(a). On July 25,
2008, the BLM issued Title V permits to a private entity to use these three roads.
Supp. App. 33755. The Title V permits grant the right to construct, operate,
maintain, and terminate an access road for the purpose of accessing private
property on public lands. Id. at 337. The permits state that roads must be
surfaced to specifications set by Kane County for a subdivision road and to Kane
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County standards for subdivision roads with a travel surface of 28 feet. Id. at
338. The permits are not intended to extinguish or limit any R.S. 2477 right-ofway, and if an R.S. 2477 right-of-way was found by a court or the Secretary of
the Interior, the permit would be superseded thereby. Id. The district court
held these permits conflict[ed] with Kane Countys ability to manage its alleged
rights-of-way and thus amounted to a dispute of title under 2409a(a). Kane I,
934 F. Supp. 2d at 1358. We disagree.
Nothing about the grant of Title V permits to third parties expressly or
implicitly disputes Kane Countys 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 Countys 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, 174 P.2d 148,
158 (Utah 1946)). But, Kane County has produced no evidence as to how the
permits interfered with any development plans. Absent such evidence, we must
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conclude that the Title V permits do not create a disputed title under
2409a(a).
Thus, as to all four of the Cave Lakes Roads (K1070, K1075, K1087 and
K1088) we reverse the district courts 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 because the QTAs limitations period had
already run. The district court found that the limitations periods had not run,
Kane I, 934 F. Supp. 2d at 136064, and the United States has not challenged this
finding on appeal. At an earlier stage of litigation, the United States in fact
conceded the QTA limitations period had not run. See Kane Cnty. v. United
States, No. 2:08CV00315, 2011 WL 2489819, at *7 (D. Utah June 21, 2011).
Nevertheless, the QTAs limitations period is a jurisdictional bar, see Rio Grande
Silvery Minnow, 599 F.3d at 117576, and thus we address it.
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
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accrued on the date the plaintiff or his predecessor in interest knew

or should have known of the claim of the United States.
28 U.S.C. 2409a(g). Thus, the twelve-year limitations period for non-states is
triggered when a party knows or should know of a 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. Id. 2409a(i). Notice for states must be either by public
communications sufficiently specific as to be reasonably calculated to put the
claimant on notice of the Federal claim to the lands or by the use, occupancy,
or improvement of the claimed lands which, in the circumstances, is open and
notorious. Id. 2409a(k)(1)(2). Both the 2409a(g) and 2409a(i) standards are
relevant here, as amici argue the limitations periods ran on both Kane County and
Utahs QTA claims.
In interpreting the QTAs 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

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well-defined and open disagreements. Id. at 94647 (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 plaintiffs. Knapp v. United States, 636 F.2d
279, 283 (10th Cir. 1980). Thus, though [k]nowledge of the claims 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 a party claiming a right-of-way); Michel v. United States, 65 F.3d
130, 132 (9th Cir. 1995) (same). As a public right-of-way can generally
peaceably coexist with an underlying ownership interest, see George, 672 F.3d
at 947, the United States must provide a county or state with sufficient notice of
the United States claim of a right to exclude the public. San Juan Cnty., 754
F.3d at 794.
Amici contend that two events triggered the QTA limitations periods: (1)
the BLMs 1980 designation of the Paria-Hackberry Wilderness Study Area and
publication of this designation in the Federal Register; and (2) a 1991 meeting of
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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. 43
U.S.C. 1782(a). An area of wilderness was defined to mean an area of
undeveloped Federal land retaining its primeval character and influence, without
permanent improvements or human habitation. 16 U.S.C. 1131(c).
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
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and to take any action required to prevent unnecessary or undue degradation of

the lands and their resources. 43 U.S.C. 1782(c). This standard requires the
BLM to ensure that an areas existing wilderness values are not degraded in a
manner that might threaten the WSAs designation as protected wilderness.
Interim Management Policy and Guidelines for Land Under Wilderness Review
(IMP), 44 Fed. Reg. 72,014 (Dec. 12, 1979).
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. 230001. A
subsequent nationwide BLM memorandum stated that where WSAs overlap with
R.S. 2477 rights-of-way, the WSA/wilderness designation is subject to the terms
and conditions of the pre-existing R/W grant. Instructional Memorandum No.
90-589 (Aug. 15, 1990), JT App. 2295; see also id. at 2296 (noting that R.S. 2477
rights-of-way may in fact exist within a WSA); IMP, 44 Fed. Reg. 72,015

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(WSAs shall be subject to valid existing rights). Moreover, an opinion from the
Secretary of the Interior shortly after the Paria-Hackberry WSA designation
explained that valid existing rights, including rights-of-way, were excepted from
the non-impairment requirements of 43 U.S.C. 1782(c). See United States
Dept of the Interior Solicitors Opinion M-36910, 88 I.D. 909, 1981 WL 29226
(Oct. 5, 1981). In light of this evidence, the district court found that the PariaHackberry designation did not constitute an adverse claim to North Swag and was
thus insufficient to trigger the QTA limitations period.
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-ofway. SUWA Br. 2231.
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
44 U.S.C. 1507). However, as the district court recognized, publication in the
Federal Register is sufficient notice to trigger the limitations period only where
the published notice conflicts with a plaintiffs interest. Kane I, 934 F. Supp. 2d
at 1362. Thus, if the published interest does not amount to a claim that a plaintiff
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lacks R.S. 2477 rights-of-way within a WSA, the limitations period is not
triggered. As San Juan County explained, in the context of R.S. 2477 claims, a
published claim by the United States must amount to a claim of exclusive
control to trigger the QTA limitations period. 754 F.3d at 794. Thus, the
determinative issue is whether the Paria-Hackberry designation amounted to a
claim of exclusive control or whether it permitted the United States ownership
interest and the Plaintiffs right-of-way to peaceably coexist. George, 672 F.3d
at 947.
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 nonimpairment 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 Solicitors 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
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do not preclude the recognition of R.S. 2477 rights-of-way. The 1980 Instruction
Memorandum issued by the Utah BLM Director, which preceded the PariaHackberry wilderness designation, establishes that the BLM did not believe
wilderness designations rendered an area roadless for R.S. 2477 purposes. The
1990 BLM Memorandum stated with even greater clarity that wilderness
designations are subject to the terms and conditions of pre-existing rights-ofway. JT App. 2295. Amici cast these BLM documents as an attempt to unring
the bell that the 1980 Paria-Hackberry designation chimed, especially given
their status as informal agency pronouncements. See SUWA Br. 29; SUWA
Reply Br. 16 (citing Spirit Lake Tribe v. North Dakota, 262 F.3d 732, 74142
(8th Cir. 2001); Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189,
1200 (9th Cir. 2008)). But unlike the cases amici cite, the BLM memoranda are
not meant to unring the bell, but to show the bell never rang in the first place. If
the BLM did not believe wilderness designations conflicted with rights-of-way
within the land, it would be strange indeed to declare that Kane County or Utah
should have.
This courts 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 2409a limitations periods had run. As to
the Countys claim, the court rejected the United States contention that the
closures of two different segments of the same road amounted to an adverse claim
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to the road at issue. San Juan Cnty., 754 F.3d at 79394. More pertinent here,
the court explained that as to Utahs claim, the United States failed to show that
either the road closures or a variety of other park management activities,
including the National Park Services 1970 recommendation that the upper
canyon be designated as wilderness, amounted to notice of a claim adverse to
Utahs claimed right-of-way. Id. at 796. Because these management activities
left the road fully accessible to the public, they did not suffice to trigger the
limitations period. 2 Id.
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 BLMs management responsibilities pursuant to the wilderness
designation were inconsistent with Kane County or Utahs 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

We read San Juan County to be in line with our precedent holding that a
range war or physical actions to enforce a claim are unnecessary to trigger
the QTAs limitations clock. George, 672 F.3d at 946. The San Juan County
court ultimately concluded that the QTA was not triggered because Salt Creek
Road remained open to the public, but left room for the possibility that
management activities [that] were inconsistent with the claimed right-of-way
could provide the necessary notice to start the limitations period. 754 F.3d at
794.
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Land Mgmt., 271 F. Supp. 2d 1308, 1312 (D.N.M. 2003), affd on other grounds,
363 F.3d 1069, 1070 (10th Cir. 2004); Bd. of Commrs of Catron Cnty. v. United
States, 934 F. Supp. 2d 1298, 1306 (D.N.M. 2013); Cnty. of Inoyo v. Dept of
Interior, No. CV F 061502 AWI DLB, 2008 WL 4468747 (E.D. Cal. Sept. 29,
2008)). These cases ignore the distinctionacknowledged by the BLM
itselfbetween roads for the purpose of the Wilderness Act and roads under
R.S. 2477. See Bd. of Commrs of Catron Cnty., 934 F. Supp. 2d at 130407;
S.W. Four Wheel Drive, 271 F. Supp. 2d at 131012. Moreover, these cases are
unpersuasive in light of this courts decision in San Juan County.
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 2409a(g) and Utah under
2409a(i). Because we find Utah was not reasonably aware of an adverse claim by
the United States, we need not address whether the United States conducted
substantial activities or made substantial improvements to the land under
2409a(i).
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
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Secretary of the Interiors 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 courts 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 *5859.
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 4243 (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
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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 the other public
purposes language of the Pickett Act, in 1912 President Taft signed what became
Public Water Reserve No. 1, a withdrawal order for 16,200 acres covering
roughly 32 watering springs in Western Utah. Similar withdrawals of federal land
containing water came in a somewhat piecemeal fashion. Opponents of these
withdrawals, such as Congressman Frank Mondell of Wyoming, were concerned
they might interfere with settlement and acquisition of land in the West.
Department of the Interior Secretary Walter Fisher, in defense of the policy,

The Act additionally provided that withdrawn lands shall at all times be
open to exploration, discovery, occupation, and purchase under the mining laws
of the United States, so far as the same apply to metalliferous minerals. 37 Stat.
947. Kane County argues that because R.S. 2477 was enacted as Section 8 of the
Mining Act of 1866, which (in other provisions) dealt with metalliferous
minerals, R.S. 2477 is a mining law that appl[ies] to metalliferous minerals.
Kane Br. 1516. We reject this argument and conclude that the mere coincidence
of R.S. 2477s location in a law that later came to be known as the Mining Act of
1866 is insufficient to bring it within the Pickett Acts exception.
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assured Congressman Mondell that the withdrawals did not mean that [the water
sources] are reserved from private uses; on the contrary, it means that those
private uses are encouraged and permitted. Muhn, supra, at 8586.
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 43 U.S.C. 291 et
seq.), repealed by FLPMA.
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

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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. Secy 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 usethus preventing the operation of R.S. 2477or merely
withdrawn.
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, 78486 (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
- 29 -

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 withdrawals 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 valueinsufficient, in the courts 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 SRHAcertainly more of a public use than withdrawing
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lands for reclassification and appraisal. However, SUWA explained that a

reservation must set aside land for a specific public purposesuch as a park,
military post, or Native American landand 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 publics 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 right-of-way to access it is highly improbable.
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
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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 43 U.S.C. 1761). The
logical consequence of this argument is that PWR 107, an executive order aimed
at ensuring public access to water, had precisely the opposite effect until the
passage of the FLPMA in 1976. This argument is untenable.
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.
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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 courts 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 *4345, *55. Kane County and Utah appeal as to K1075
- 33 -

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 Lakes Road K1075,
we do not reach the issue of the appropriate standard of proof.
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 1012 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 2428 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 *5153, *6062. 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. 3844. Second, it contends the district court

The United States does not challenge the district courts width
determination as to the wider portion of Swallow Park Road that is below its
intersection with Skutumpah. Aplee. Br. 36 n.17.
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improperly allowed room for unspecified future improvements to North Swag,

Swallow Park and Skutumpah roads. Id. at 4550. 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 43 U.S.C. 1769(a). Thus, R.S. 2477 rights-of-way were preserved as
they existed on the date of passage of the FLPMA, October 21, 1976. Hodel,
848 F.2d at 1083; see also SUWA, 425 F.3d at 746 ([T]he scope of an R.S. 2477
right of way is limited by the established usage of the route as of the date of the
repeal of the statute.).
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 108384 (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.
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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 SUWAs
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
roads. Kane II, 2013 WL 1180764, at *6365. It made substantial factual
findings regarding pre-1976 uses of Swallow Park and North Swag and
considered these findings in evaluating whether R.S. 2477 rights-of-way existed
at all. See id. at *5152 (Swallow Park), *5253 (North Swag). However, it did
not consider these findings in evaluating their scope. Id. at *65. Instead, the
court relied chiefly on travel guidelines published by the American Association of
State Highway and Transportation Officials (AASHTO) suggesting road widths
for roads providing access to recreational or agricultural areas. These Guidelines
may be relevant to the determination of what width is reasonable and necessary in
light of the pre-1976 uses of Swallow Park and North Swag roads. However,
because the district court did not discuss these pre-1976 uses, we must remand.
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
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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-ofway, the land management agency must be consulted to allow it an opportunity to
- 37 -

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 at 1084. But to allow for unspecified improvements ex ante
deprives the BLM of the opportunity to perform its duties effectively. The
process set forth in SUWA contemplates a precise order of actions for holders of
rights-of-way seeking improvements. First, they consult with the BLM as to the
proposed improvements; then, [i]n the event of a disagreement, the parties may
resort to the courts. 425 F.3d at 748. Thus, we find the district court erred in
allowing for unspecified improvements in setting the widths of the rights-of-way
on Skutumpah, Swallow Park and North Swag roads. Therefore, we remand the
question of the scope of the R.S. 2477 rights-of-way on these roads.

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AFFIRMED in part, REVERSED in part, and REMANDED. 5

We grant the motion of Sierra Club, Grand Canyon Trust and National
Parks Conservation Association for leave to file an amicus brief.
- 39 -