Tenth Circuit: Express or Implicit Dispute of Title Necessary to Trigger Quiet Title Act’s “Disputed Title” Requirement

January 8, 2015

By Susan Hoyt

Byron White U.S. Courthouse

Byron White U.S. Courthouse

The 10th Circuit’s recent decision in Kane County, Utah v. United States, 772 F.3d 1205 (10th Cir. 2014), resolved some issues while obfuscating others.

The Court potentially created a split between the 9th and 10th Circuits when it defined what constitutes “disputed title” for purposes of the Quiet Title Act (QTA). “The Tenth Circuit, as a matter of first impression, evaluated what requirements satisfy the QTA’s “disputed title” requirement. The Tenth Circuit rejected the Ninth Circuit’s “cloud on title” standard and instead held that, to satisfy the QTA’s “disputed title” element, the plaintiff must show that the United States has either expressly disputed title or taken action that implicitly disputes it. Actions that produce ambiguity are not enough to satisfy the disputed title element.

The Tenth Circuit then turned its attention to the district court’s conclusion that Public Water Reserve (PWR) 107 had served to “reserve” two parcels of land across which Swallow Park Road runs from operation of R.S. 2477. The Tenth Circuit analyzed PWR 107, finding that it was intended to provide public access to certain water springs, and noted that it would be “nonsensical” to hold that the provision of public access to the springs expressly excluded the construction of roadways under R.S. 2477 on which the public could access the water springs.”

Read full story | CBA CLE Legal Connection

Tenth Circuit Issues Opinion in Kane County R.S. 2477 Case

SALT LAKE CITY Dec. 2, 2014 — The Tenth Circuit Court of Appeals issued an opinion today in the R.S. 2477 case of Kane County and Utah v. United States. A three judge panel affirmed that the State and county have legal title to six of twelve roads and held that there was no dispute as to title in the remaining six. The opinion again rejected SUWA’s claim that the statute of limitations bars the road claims. The court also determined that the existence of water reserves do not bar road claims.

Read full press release | Utah Office of the Attorney General

Tenth Circuit Challenges the Federal Government’s Position on State’s Rights-of-Way in Southern Utah

In March 2013, the federal district court in Utah awarded the State and Kane County rights-of-way over 12 roads crossing federal public lands. The federal government claims that it was an error. But on September 29, 2014, the Tenth Circuit Court of Appeals three-judge panel challenged the federal government’s position.

The State and Kane County filed this lawsuit under Revised Statute 2477 (R.S. 2477). R.S. 2477 allowed homesteaders and miners to build roads over public lands to settle the West. Congress repealed R.S. 2477 in 1976, but directed federal agencies to recognize preexisting R.S. 2477 rights-of-way. Today, for the federal government to recognize such rights-of-way, Utah and its counties must prove in federal court continuous use of each claimed road for at least 10 years before 1976 (the date of R.S. 2477 repeal). Live witness testimony on road existence and use is necessary to show 10 years of continuous use. Many witnesses who can remember and describe the roads are older than 70. As time goes by, they lose memories, get ill, and pass away.

For Utah R.S. 2477 has become a protection from potential federal decisions that could block access to and prohibit multiple-use on public lands. In contrast, the Southern Utah Wilderness Alliance (SUWA) and other environmental organizations view this litigation as a threat to conservation efforts and wilderness designations, including a proposal for wilderness designation under America’s Red Rock Wilderness Act (proposed legislation).

Contrary to popular propaganda, the roads in question are neither “ghost roads,” nor “roads to nowhere.” These roads enable citizens to access private land, state grazing allotments, sources of water, scenic destinations, and more. Furthermore, the conservation groups that intentionally distort the issue ignore the fact that under R.S. 2477 the federal government granted these rights-of-way to the state long ago, and the current use of a road—abundant or sparse—does not nullify the rights existing as of 1976.

Kane County and the State were successful in getting title to 12 out of 15 claimed roads in the federal district court in Utah. The federal government appealed this decision to the Tenth Circuit. David Shilton, attorney for the federal government, argued that the federal court did not have jurisdiction to hear the case because the United States has never closed the roads in question, therefore, creating no dispute necessary to bring the case to court. The judges seemed skeptical of these claims. Judge Phillips, appointed by President Obama, stated that Shilton’s argument could result in “decades and decades and decades” to pass without resolving the issue. He was concerned that this delay favors the federal government by making it more difficult for the state and counties to prove their case.

Another Obama appointee, Judge Bacharach, challenged Shilton’s argument that the lower court improperly considered post-1976 uses to determine the widths of the rights-of-way. Judge Bacharach reasoned that the rights-of-way needed to comport with “current day’s standard of safety.”

Unsurprisingly, the federal government focused on the argument that it most consistently touts—that the “open” status of a road should prevent a federal court from granting Utah title to the roads. According to the federal government, if everyone can use the roads then there is no dispute as to title. Misleading, this argument ignores the fact that the federal government maintains control of these roads and refuses to recognize state and county rights under R.S. 2477. As Judge Phillips pointed out, this argument is but a delay that ultimately benefits the federal government: sooner than later those witnesses that can testify to 10 years of continuous use before 1976 will all have passed away.

To the chagrin of conversation groups, the Tenth Circuit did not discuss their claims. Among these is the argument that the statute of limitations bars some of the state’s claims; and an argument based on a recent case involving that Salt Creek Road that conservation groups hoped would persuade the 10th Circuit to conclude that use by cattlemen, farmers, shepherds, fishermen and hunters does not count as continuous use—an argument that seems to controvert the very purpose for which Congress enacted R.S. 2477.
The mood of the 10th Circuit seemed promising for Utah and Kane County, though its conclusion is by no means predictable. The court took the matter under advisement and will issue its decision in the upcoming months.

Potential rulings in Kane County’s lawsuit will affect the outcomes of the similar quiet title actions to over 12,000 roads in Utah crossing federal public lands. The outcome of this case also affects conservation interests of various environmental groups who advocate for “roadless” designation for many of the impacted areas. The 10th Circuit’s decision will set legal precedent for how Utah, its counties, the federal government, and conservation groups resolve pending R.S. 2477 lawsuits in other counties.

Tenth Circuit Denies SUWA’s Intervention in Kane R.S. 2477 Bald Knoll Appeal

Earlier this month the Tenth Circuit Court of Appeals denied intervention by the Southern Utah Wilderness Alliance (SUWA) and The Wilderness Society (TWS) into an ongoing R.S. 2477 roads lawsuit in Kane County. The suit, an effort by the State of Utah and Kane County to quiet title to 15 roads in the Bald Knoll area of Kane County, resulted in the Utah Federal District Court awarding title to 12 of the roads to the state and county.

Initially, in May of 2009, the lower court (the Utah Federal District Court) denied intervention by SUWA and TWS. The Tenth Circuit affirmed this order. On appeal to the Tenth Circuit in 2013, SUWA and TWS again moved to intervene seeking full participation in this lawsuit. On September 2, 2014, the Tenth Circuit panel denied intervention.

SUWA and TWS immediately moved for amicus curiae status. The Tenth Circuit granted this request but prohibited SUWA and TWS’s participation in the oral argument. Amicus status allows SUWA and TWS to file briefs as “friends of the court” but not as parties. The court may consider amicus filings but the extent and weight of such consideration are discretionary.