HOLLAND & HART LLP Shawn T. Welch, #7113 Tamara L ... · Shawn T. Welch, #7113 ... The executive power of the State is vested ... necessary to ensure safe travel and passage of vehicles

HOLLAND & HART LLP Shawn T. Welch, #7113 Tamara L. Stevenson, #13471 Mark L. Burghardt, #11521 Ryan R. Jibson, #12566 222 S. Main Street, Suite 2200 Salt Lake City, Utah 84101 Telephone: (801) 799-5800 Facsimile: (801) 799-5700 [email protected] [email protected] [email protected] [email protected] Attorneys for Plaintiff Kane County, Utah Harry H. Souvall, #4919 Anthony L. Rampton, #2681 UTAH ATTORNEY GENERAL Mark L. Shurtleff, #4666 5110 State Office Building P. O. Box 142477 Salt Lake City, Utah 84114-2477 Telephone: (801) 538-9527 Facsimile: (801) 538-9727 [email protected] [email protected] Attorneys for Plaintiff State of Utah

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

KANE COUNTY, UTAH, a Utah political subdivision; and STATE OF UTAH,

COMPLAINT

Case No. 2:11-cv-01031 BCW

Magistrate Judge Brook C. Wells

Plaintiffs,

v.

UNITED STATES OF AMERICA,

Defendant.

Case 2:11-cv-01031-BCW Document 2 Filed 11/10/11 Page 1 of 1365

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Kane County, Utah (Kane County), a Utah political subdivision, and the State of Utah

(the State) (collectively referred to as Plaintiffs) as their Complaint against the United States

of America (United States) allege as follows:

JURISDICTION AND VENUE

1. The claims asserted herein arise under the Quiet Title Act (QTA). 28 U.S.C.

2409a.

2. This Court has subject matter jurisdiction under 28 U.S.C. 2409a (quiet title)

and 28 U.S.C. 1346(f) (quiet title), as this case involves Plaintiffs claim to ownership of public

highway rights-of-way crossing lands of the United States.

3. Plaintiffs claim title to the public highway rights-of-way crossing lands of the

United States at issue in this case as joint undivided owners. See Utah Code Ann. 72-5-

302(2) and 72-5-103(2)(b).

4. The State has satisfied the QTAs 180-day notice of intent to sue requirement.

See 28 U.S.C. 2409a(m). By letter dated June 14, 2000, the Office of the Attorney General for

the State of Utah gave notice to the United States Department of the Interior (DOI) of its intent

to file suit with regard to the ownership and scope of the public highway rights-of-way at issue in

this case. A copy of this Notice of Intent with a small version of its Attached Map is included in

Attachment 1. Moreover, by letter dated May 17, 2011, the Office of the Governor for the State

gave additional notice to the DOI of its continued intent to file suit regarding the ownership of

the public highway rights-of-way at issue in this case.


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5. Venue is proper in this Court under 28 U.S.C. 1391(e), because the lands

subject to this lawsuit are located in Kane County, State of Utah.

6. A case or controversy has arisen over Plaintiffsownership of the public highway

rights-of-way described herein, the scope of the rights-of-way, and their jurisdiction to regulate

and maintain these public highways.

PARTIES AND INTEREST

7. Kane County is a local political subdivision of the State of Utah, duly authorized

to maintain this action. See Utah Code Ann. 17-50-302(2).

8. Kane County is the statutory highway authority with the right and duty to manage

and maintain its county roads and, as a joint undivided owner with the State of Utah, owns title

to the public highway rights-of-way for such roads. See generally Utah Code Ann. 17-50-

309, 72-3-103(3), 72-3-105(3), 72-5-103105, and 72-5-302.

9. The State of Utah is one of the fifty sovereign states forming the United States of

America, having been admitted to the Union on January 4, 1896 on an equal footing with the

original states. The executive power of the State is vested in the Governor, who is responsible

for seeing that the laws of the State are faithfully executed. Utah Const. art. VII, 5; Utah Code

Ann. 67-1-1.

10. The State also owns all property interests acquired from the United States at or

after the time of statehood pursuant to Article XX of the Utah Constitution. The State of Utah is

duly authorized to maintain this action as an undivided joint owner of the public highway rights-

of-way claimed herein. See generally Utah Code Ann. 72-3-103(3), 72-3-105(3), 72-5-103

105, and 72-5-302.


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11. Defendant United States of America is the owner of the lands traversed by and

subject to the roads and rights-of-way claimed in this action.

THE CONGRESSIONAL GRANT OF RIGHTS-OF-WAY FOR PUBLIC HIGHWAYS CROSSING PUBLIC LAND

12. Section 8 of the Mining Law of 1866, 14 Stat. 253, later codified as Revised

Statute 2477, and later as 43 U.S.C. 932 (repealed) (hereinafter R.S. 2477), provides: And

be it further enacted, That the right of way for the construction of highways over public lands,

not reserved for public uses, is hereby granted.

13. R.S. 2477 was an open congressional grant in praesenti of public highway rights-

of-way to and for the benefit of miners, ranchers, homesteaders and all members of the public

who had need to travel across public lands.

14. Acceptance and vesting of R.S. 2477 rights-of-way required no administrative

formalities: no entry, no application, no license, no patent, and no deed on the federal side; no

formal act of public acceptance on the part of the states or localities in whom the right was

vested. See Southern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735,

741 (10th Cir. 2005) (SUWA v. BLM). R.S. 2477 operated as a standing offer of a right-of-way

over the public domain, and the grant may be accepted without formal action by public

authorities. Id.

LONG-STANDING DEPARTMENT OF INTERIOR INTERPRETATION OF R.S. 2477

15. Prior to its recent adverse actions, the DOI historically recognized and agreed that

State law governs the acceptance, scope and regulatory jurisdiction of R.S. 2477 public

highways.


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16. Across the years the DOI adopted numerous regulations and policies interpreting

the congressional grant of R.S. 2477 rights-of-way. These regulations and policies served to

ensure DOIs compliance with its statutory duty to manage the public lands subject to valid

existing rights. These regulations and policies further demonstrate the acts that prove the

acceptance of such rights-of-way.

17. As of and following 1939, R.S. 2477 interpretive regulations found at 43 C.F.R.

244.55 (1939) stated:

[R.S. 2477] 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 said R.S. 2477 as no action on the part of the Federal Government is necessary.


244.58 (1963) stated:

Grants of [R.S. 2477 rights-of-way] become effective upon the construction or establishment of highways, in accordance with the State laws, over public lands, not reserved for public uses. No application should be filed under R.S. 2477, as no action on the part of the Government is necessary.


2822.1-2 & 2822.2-1 (1974) stated:

No application should be filed under R.S. 2477, as no action on the part of the Government is necessary. Grants of [R.S. 2477 rights of-way] become effective upon the construction or establishment of highways, in accordance with the State laws, over public lands, not reserved for public uses.

20. As of and following 1986, R.S. 2477 interpretive policies stated in Bureau of

Land Management (BLM) Manual, R.2-229 stated:


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When public funds have been spent on the road it shall be considered a public road. When the history of the road is unknown or questionable, its existence in a condition suitable for public use is evidence that construction sufficient to cause a grant under R.S. 2477 has taken place.

21. As a matter of federal law, R.S. 2477 borrows from State law relating to

acceptance (validity) and scope of such rights-of-way.

22. R.S. 2477 rights-of-way vest by acts of governmental entities or the public

evidencing the acceptance of the right-of-way during operation of the grant.

23. R.S. 2477 rights-of-way were accepted by acts of the local government highway

authority by designating the road and right-of-way as a general public highway. These acts

include, but are not limited to, designation of the road as a general public highway, and the use,

maintenance, and construction of such road for general highway purposes.

24. R.S. 2477 rights-of-way were also accepted by acts of the public evidencing the

intent to accept the grant. These acts include, but are not limited to, public use of the road as a

general thoroughfare on a non-exclusive basis sufficient to confirm acceptance of the public

highway right-of-way. In Utah, this includes public use of a road, as often as the need arose, for

a continuous period of ten years.

25. Congressionally granted R.S. 2477 public highway rights-of-way are property

interests, sometimes considered a species of easement. As a congressional grant of property for

public purposes, the grant includes the right of use, enjoyment, and the implied or actual right to

cross public land to access and use the property interest granted.

26. The scope of an R.S. 2477 right-of-way is not restricted to the beaten path of the

road, which DOI now characterizes as the disturbed width. The scope of an R.S. 2477 right-


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of-way includes the physical features of the right-of-way as accepted and used, and that which is

reasonable and necessary to accommodate the exigencies of increasing travel.

27. R.S. 2477 case law, long-standing DOI interpretation, and historical practice

establish the scope of the rights-of-way claimed herein to include that which is reasonable and

necessary to ensure safe travel and passage of vehicles on a two lane road according to sound

engineering practices that protect the safety of the traveling public, the features of the road, and

that prevent undue degradation or impairment of adjacent lands and resources.

28. Applicable law, historical practice, and sound engineering confirm that an R.S.

2477 right-of-way, as distinguished from the disturbed width of the road, includes a minimum

width of 66 feet and any features, facilities, cuts, slopes, water bars, drainage runouts, and fill

areas necessary to ensure a safe travel surface as reasonable and necessary under the

circumstances specific to each road.

29. The congressional grant of public highway rights-of-way embodied by R.S. 2477

operated on unreserved public lands for 110 years until it was repealed on October 21, 1976, by

the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1701 et seq.

30. In repealing R.S. 2477, Congress preserved vested R.S. 2477 rights-of-way as

valid existing rights and expressly directed the United States and its subordinate agencies to

manage federal lands subject to all valid existing rights.

31. FLPMA Section 701(h) provides: All actions by the Secretary concerned under

this Act shall be subject to valid existing rights. 43 U.S.C. 1701, note. See also 43 U.S.C.

1769(a) (Nothing in this subchapter shall have the effect of terminating any right-of-way or

right of use heretofore issued, granted or permitted.).


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PLAINTIFFS R.S. 2477 AND PUBLIC HIGHWAY RIGHTS-OF-WAY

32. Plaintiffs R.S. 2477 and public highway rights-of-way, easements and rights-of-

entry (collectively referred to as rights-of-way) serve the common good, benefit the public,

and implement the congressional intent of facilitating safe and efficient travel across public

lands. The R.S. 2477 rights-of-way granted by Congress necessarily include an implied right of

access to the rights-of-way so that they may be used as public thoroughfares.

33. Kane County classifies its public highways as Class B and Class D county roads.

This classification is a matter of State law and is generally only relevant herein to the manner of

acceptance of the rights-of-way for the roads.

34. At all times relevant herein, State law provided that a public highway right-of-

way was officially accepted under the jurisdiction and control of the local highway authority

(Kane County) by its designation as a general highway, also known as a Class B county road.

See Utah Code Ann. 72-3-103 (prior law in accord); see also Utah Code Ann. 27-12-22

(1963). Once designated as a Class B county road, Kane County would expend State and county

funds to construct and maintain the road through its road department.

35. The R.S. 2477 and public highway rights-of-way for the Class B roads claimed

herein were accepted by Kane Countys designation of these roads as county general highways

and Kane Countys expenditure of State and county funds to construct and maintain these roads

as public highways prior to October 21, 1976, or such other date as requisite for the acceptance

of a particular road and its R.S. 2477 and public highway right-of-way claimed herein.

36. Plaintiffs are the owners of the R.S. 2477 and public highway rights-of-way for

the Class D roads claimed herein. Plaintiffs Class D roads are those roads established by public


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use and are suitable for travel in vehicles with four or more wheels. Each right-of-way and Class

D road claimed herein is a component of Kane Countys highway system with same force and

effect as its Class B roads. See Utah Code Ann. 72-3-105.

37. At the relevant times herein State law provided that a public highway right-of way

is dedicated and abandoned to the use of the public when it has been continuously used as a

public thoroughfare for a period of ten years. Utah Code Ann. 72-5-104 (prior law in accord).

38. The R.S. 2477 and public highway rights-of-way for Plaintiffs Class D roads

claimed herein were accepted by continuous use as public thoroughfares for a period in excess of

ten years prior to October 21, 1976, or such other date as requisite for the acceptance of a

particular road and its right-of-way claimed herein.

39. As a practical matter, the R.S. 2477 and public highway rights-of-way for all of

Plaintiffs Class B roads were initially accepted as public highways by public use for a

continuous period of at least ten years, and were later officially designated as Kane County Class

B general highways.

40. Plaintiffs, by and on behalf of the public, accepted and own the R.S. 2477 and

public highway rights-of-way for the roads described herein.

41. However, Kane County is the local highway authority with sole jurisdiction and

control of Class B and Class D roads within its borders. Kane County has the sole obligation to

manage, construct and maintain its Class B roads to meet general travel standards established by

State law. See Utah Code Ann. 72-3-103(4) and 72-3-105(4).


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42. Prior to October 21, 1976, or such other date as requisite for the acceptance of a

particular right-of-way, Plaintiffs accepted R.S. 2477 rights-of-way for the roads claimed herein

on unreserved public lands.

43. In addition to the public lands of the United States, many of the roads claimed in

this action have segments that access and cross private land, and access and cross land now or

formerly owned by the State of Utah and the Utah School and Institutional Trust Land

Administration (sometimes collectively referred to as SITLA).

44. In those instances where short sections of the roads and rights-of-way cross lands

formerly in private or SITLA ownership, Plaintiffs rights-of-way claimed herein were accepted

and perfected as valid existing rights-of-way, easements, and rights-of-entry (collectively,

rights-of-way), through the facts set forth herein, prior to the United States ownership of the

subject lands. Title of the United States is subject to these valid existing rights as a matter of

law. See Utah Code Ann. 53C-4-203(2) and 72-5-203; 43 U.S.C. 1701, note. In each cause

of action set forth below, Plaintiffs claimed rights-of-way include those accepted pursuant to

R.S. 2477 and established under law as rights-of-way and valid existing rights prior to the United

States title.

45. The course, existence and location of the rights-of-way and roads that cross

private and SITLA land have not been challenged and are not at issue in this action. This action

seeks to quiet title to the rights-of-way crossing the lands of the United States.

46. Plaintiffs vested public highway rights-of-way for the roads claimed herein

continue as valid existing rights until formally abandoned by Plaintiffs. See Utah Code Ann.

72-5-105(1) and 72-5-305.


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47. Plaintiffs have not abandoned the rights-of-way for any of the roads claimed in

this action.

48. Within each cause of action set forth below, the right-of-way is shown by map,

description, and by reference to verified Global Positioning System (GPS) data plotted on

maps showing the aliquot parts of each section, township and range crossed by the right-of-way.

49. As a matter of historical practice within the agencies of the United States, rights-

of-way crossing federal lands are granted, recognized and acknowledged by reference to a

United States Public Land Survey System (PLSS) aliquot part. That is, the United States and

its agencies grant, recognize and acknowledge rights-of-way on federal lands by reference to

PLSS aliquot parts and not by metes and bounds.

50. With more precision than a PLSS aliquot part description, Plaintiffs have

additionally provided maps and a GPS data description of the location and centerline course of

the roads crossing the rights-of-way claimed herein. The precision in these descriptions exceeds

that which has been historically recognized by the United States as sufficient to describe and

confirm rights-of-way crossing its lands.

51. Notwithstanding the diligent precision and particularity pleaded herein, each and

every right-of-way and road claimed herein exists, is to be decided, and is to be established by

the course, location and historical existence of the right-of-way on the ground as has been

accepted, used and enjoyed by, for and on behalf of the public, including deviations in course

recognized by law as being reasonable and necessary.


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THE CASE OR CONTROVERSY

52. Kane County encompasses over 2.5 million acres of land and is one of the largest

counties in the nation. However, only about ten percent of the land within Kane County is in

private ownership and more than 83 percent of the land within Kane County is federal land.

53. Due to the vast expanses of federal land, R.S. 2477 serves as the sole

authorization for the vast majority of Plaintiffs public highways in Kane County.

54. The roads at issue in this suit were authorized, established and constructed on R.S.

2477 rights-of-way granted by Congress on unreserved lands prior to October 21, 1976, or vested

as valid existing public highway rights-of-way at such times as determined by the facts set forth

below.

55. These roads have long served the common good in providing a safe, efficient

transportation system within Kane County. Kane Countys transportation system connects to

roads in the State of Arizona and roads in other counties within Utah. Some of the roads in this

action predate Utahs statehood in 1896.

56. Plaintiffs public highways serve the vital function of linking communities,

business operations, private and SITLA land, and were historically established and constructed

where necessary to facilitate settlement, commerce, and needed public access. Due to the rugged

terrain in Kane County, each of the roads claimed herein is incredibly important because there is

rarely an alternate route.

57. In enacting FLPMA in 1976, Congress grandfathered and preserved Plaintiffs

rights-of-way as valid existing rights and directed the agencies of the United States to manage

federal public lands subject to these valid existing rights.


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58. Long before 1976, and for approximately 20 years thereafter, Kane County,

federal land managers, and the public cooperated in the use, maintenance and construction of

these roads in furtherance of the common good. The validity, scope and county jurisdiction of

the publics highways and rights-of-way claimed in this action were not an issue or of concern.

59. Without any change in the law, the DOI and its agencies have recently engaged in

an aggressive effort to impair or entirely deprive Plaintiffs and the public of their vested rights-

of-way, and to avoid DOIs duty to manage public lands subject to valid existing rights.

60. Beyond Kane County, DOIs actions have recently sparked numerous public

highway lawsuits across the western states. Specific to Kane County, DOI Solicitors and BLM

managers decided that Plaintiffs have no right, title or interest in these public highways crossing

federal land unless and until Plaintiffs rights-of-way are adjudicated in court. Acting upon this

position, BLM attorneys recently argued in court, and established, that the roads in this case are

presumptively federals roads and that Plaintiffs have no right, title or interest in the roads until

Plaintiffs adjudicate their title. Despite the DOIs and BLMs claims, they thereafter refused to

maintain, repair or clear snow from these roads.

61. DOI officials have admitted that the DOI is regulating these roads as DOI roads,

and that DOI is responsible for the roads until Plaintiffs title is confirmed. Despite the DOIs

claim, it refuses to pay to maintain the roads or clear snow from them. As the roads recently

deteriorated under DOI neglect, members of the public slid off washboarded sections of road and

made claims against Kane County for vehicle damage caused by the unmaintained and rutted

roads. The BLM refused to repair and reopen some of these roads when they washed out or were

covered by rockslides. The BLM in particular refused to use its own funds to repair and


14

maintain the roads, and ignored the widespread public safety hazards directly caused by its

recent claim to own the roads.

62. As explained with more detail below, the DOIs recent actions are directly

contrary to law, have denied Plaintiffs right, title and interest in their rights-of-ways, and have

created a case or controversy.

63. First and foremost, the BLM has recently commenced to enforce several land

management plans under the newly-minted premise that Plaintiffs have no valid existing rights-

of-way on federal land unless and until Plaintiffs have first quieted title. The BLMs actions are

directly contrary to Tenth Circuit law. Title to an R.S. 2477 right-of-way, by contrast, passes

without any procedural formalities and without any agency involvement. SUWA v. BLM, 425

F.3d at 753.

64. A DOI Solicitor recently explained the disagreement with the Tenth Circuit

decision in SUWA v. BLM, in several respects. He testified that Kane County cannot own or

maintain a right-of-way until the DOI first decides that Kane County owns a right-of-way, or a

court confirms Kane Countys title. The DOI Solicitor confirmed that the basis for the DOIs

actions adverse to Kane Countys title is that a DOI decision or a court order is now a

prerequisite to Kane County being the owner of a right-of-way.

65. Apparently acting upon the DOIs instruction, BLM attorneys prevailed in court

that Kane County lacks a legally cognizable interest in any right-of-way crossing federal land

until it has first quieted its title. The BLM stated that it would recognize Kane Countys

adjudicated rights-of-way.


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66. Second, BLM has now unlawfully restricted Kane Countys right to maintain the

publics highways crossing federal land. BLM claims that Kane County cannot maintain any

road on federal land unless such maintenance is specifically authorized by BLM and, even then,

Kane Countys maintenance cannot exceed the disturbed width of the road. As confirmed by

Tenth Circuit precedent, Kane County has the right to conduct routine maintenance on its public

highway rights-of-way without prior permit or authorization from the BLM. See SUWA v. BLM,

425 F.3d at 745. While new construction requires prior consultation with the BLM, routine

maintenance does not. As further confirmed by Tenth Circuit precedent, Kane Countys public

highway rights-of-way include that which is reasonable and necessary to meet the needs of

increasing travel, including widening a road to accommodate two lanes of travel. See Sierra

Club v. Hodel, 848 F.2d 1068, 1083-85 (10th Cir. 1988). Plaintiffs rights-of-way are not limited

to the disturbed width of the road. Id. The DOIs in-court statements and on-the-ground actions

have now clouded title to Plaintiffs rights-of-way claimed herein.

67. Kane County has the right to maintain its roads according to safe engineering

practices. The BLM, however, has sued Kane County for trespass, and has issued other trespass

citations, when Kane County maintained its roads beyond the disturbed width. The BLMs

actions have impaired Kane Countys rights-of-way and its governmental interest in providing a

safe and efficient public highway transportation system with the roads claimed in this case. This

case will resolve the ongoing maintenance conflict and prevent further BLM trespass citations by

confirming the validity and scope of Plaintiffs rights-of-way.

68. And third, the DOI and BLM have now imposed a competing scheme of motor

vehicle travel regulations on Plaintiffs roads in this suit and have ejected Kane County from its


16

lawful role as the public highway regulatory authority. The DOI and BLM have unilaterally

decided the types of vehicles that may travel on the roads in this suit, and where, and have

directly impaired Kane Countys lawful regulatory authority to manage its transportation system

roads.

69. Kane County is the local highway regulatory authority and has the right to

manage and regulate its roads, including the right to adopt ordinances regulating all forms of

public motor vehicle travel on its roads. See Utah Code Ann. 17-50-309.

70. Kane County is the highway authority with jurisdiction of county roads and is

statutorily authorized to place numbering signs, markers, and traffic control signs along its roads.

See Utah Code Ann. 41-6a-208(1) and 41-6a-102(63). [I]nstalling, maintaining, repairing

and replacing road signs is statutorily defined maintenance within Kane Countys lawful

governmental authority. See Utah Code Ann. 72-5-301(5)(p) & (s).

71. A DOI Solicitor issued a legal memorandum confirming that Kane County has

regulatory jurisdiction of county roads crossing federal land, including jurisdiction to adopt

ordinances to regulate motor vehicle travel on county roads.

72. However, since 2005 the DOI has denied that Plaintiffs have any right, title or

interest in any road crossing federal land unless and until Plaintiffs have first proven their

ownership in court, including the roads in this case. Accordingly, the DOI is now implementing

its unilateral motor vehicle regulations on the roads in this case under the presumption that each

and every road herein is a DOI road under its regulatory jurisdiction. The DOI is now

implementing its adverse and competing travel plans on the roads claimed herein, pending court

adjudication of Plaintiffs title.


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73. Kane County is the highway authority with jurisdiction of the county roads in this

case, and is expressly authorized to adopt ordinances and regulate travel on these roads.

Plaintiffs must confirm their title to the roads in this case so that Kane County can maintain these

roads as part of its public highway transportation system, and regulate them as Kane County

roads.

74. After taking the adverse actions complained of herein, the DOI has stated that the

door is wide open for Plaintiffs to come to court to prove their claims and establish their rights.

The running controversy caused by DOI will be resolved by this Courts order quieting title to

the rights-of-way for the roads claimed herein. In fact, the BLMs State Director recently

testified that it is time to have Plaintiffs rights-of-way decided.

The Specific Case Or Controversy Involving Plaintiffs Roads Impaired By The Grand Staircase-Escalante National Monument Transportation Plan.

75. The Grand Staircase-Escalante National Monument (Monument) was

established by Presidential Proclamation dated September 18, 1996.

76. Of the 1.8 million acre Monument, roughly 1.2 million acres are within Kane

County. Nearly one-half of the land in Kane County is now within the Monument.

77. The Monument is the first national monument to be managed by the BLM. The

BLM adopted its first Management Plan for the Grand Staircase-Escalante National Monument

(Monument Plan) on November 15, 1999, effective as of February 2000.

78. The Monument was expressly created subject to valid existing rights.

79. During preparation of the Monument Plan, Kane County attempted to work with

BLM planners to ensure that the Monument Plan would be adopted and implemented subject to

Plaintiffs valid existing rights. Kane County tried to work with BLM planners to protect


18

Plaintiffs public highway rights-of-way and to protect Kane Countys governmental authority to

regulate motor vehicle travel and to maintain the publics highways.

80. During the planning process, BLM initially deferred any discussion of

transportation matters. Later, BLM summarily issued a transportation plan designed solely to

accommodate its own desires and without any concern for the effect on Plaintiffs valid existing

rights. To avoid immediate conflict, BLM represented in the final Monument Plan that it would

work with Kane County to ensure BLMs actions would be consistent with Plaintiffs rights and

interests.

81. In fact, the Monument Plan expressly states: Nothing in this Plan extinguishes

any valid existing right-of-way in the Monument. In the Monument Plan the BLM further

represented that it did not make any decisions concerning valid existing rights.

82. Through the Monument Plan the BLM for the first time adopted a transportation

plan purporting to specifically restrict the maintenance and uses of roads within the Monument.

The Monument Plan includes a transportation map (Map 2) purporting: 1) to designate the

only roads that would be available to the public for motor vehicle travel; 2) to strictly restrict

maintenance of the roads to the disturbed width; and 3) to regulate the types of vehicles BLM

would authorize to travel the roads within the Monument.

83. The Monument Plan states: Any route not shown on Map 2 is considered closed,

subject to valid existing rights. The Monument Plan further states that beyond the designated

routes in the Monument Plan, BLM would work to identify where existing permits or

authorizations continued to provide access. These paper commitments to cooperate have not

been realized on the ground.


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84. For several years Kane County attempted to have BLM address Plaintiffs valid

existing rights and highway regulatory concerns within the Monument. Despite initial

representations that it would work with Kane County to resolve the conflicts, BLM has done

nothing. In fact, BLM has now expressly stated that Plaintiffs have no valid existing rights-of-

way or highway regulatory authority in the Monument until after they adjudicate their title.

85. In the spring of 2000, the BLMs Monument manager met with Kane County to

discuss BLMs intent to place informational signs along roads within the Monument. After

confirming that the signs would be for informational purposes only, such as warning travelers to

stay on existing roads and avoid cross-country travel, Kane County agreed with the effort.

86. Kane County later discovered that in addition to the agreed informational signs,

the BLM placed road closure and motor vehicle restriction signs on Plaintiffs roads in the

Monument, including those at issue in this case. Kane County further learned that the BLM

placed similar closure and restriction signs along roads within the Monument in Garfield County,

Utah (Garfield County).

87. Both Kane County and Garfield County notified BLM of their objections to the

road closure and vehicle restriction signs on their county roads.

88. In response, the BLM removed the closure and restriction signs from roads in

Garfield County.

89. However, the BLM refused to remove the closure and restriction signs from

Plaintiffs roads in the Monument in Kane County. These road closure and vehicle restriction

signs remain posted along Plaintiffs roads, including roads claimed herein.


20

90. During the summer of 2010, in light of BLMs court victory finding that Plaintiffs

do not have any rights-of-way until adjudicated, the BLM placed even more closure and

restriction signs on Plaintiffs roads claimed herein.

91. For several years Kane County has attempted to implement a bi-county road

numbering system. This numbering system was developed with Garfield County to provide a

uniform and consistent numbering pattern for all county roads, which often cross jurisdictional

and county borders. For example, the Hole in the Rock road is G9000 in Garfield County, and

K9000 in Kane County. Kane County roads that spur off the Hole in the Rock road bear

K9000 subset numbers, such as K9035 for the Sooner Slide road.

92. This county-wide K numbering system distinguishes Kane County roads from

private or BLM roads, and serves to promote public health, safety and welfare in helping

travelers to know where they are and to guide search and rescue operations. The K numbering

system further identifies roads under the regulatory and maintenance jurisdiction of Kane

County, as opposed to roads regulated and maintained by BLM or other entities. Kane Countys

road numbering system will further serve to prevent persons from traveling on unauthorized two-

tracks that are not open for motor vehicle travel. There are countless two-track roads in the

Monument, and Kane Countys road numbering signs and law enforcement will serve to prevent

unauthorized cross-country travel.

93. The need for Kane Countys common numbering system has grown since the

advent of the Monument because the new visitors attracted to Kane County and the Monument

are not familiar with the area or its vast expanse. There have been several instances where


21

travelers have become lost in the Monument and have required search and rescue response, and

they have had no means to determine where they are.

94. The BLM, however, unilaterally created its own road numbering system within

the Monument. The BLMs numbering system creates a confusing system of changing road

numbers that ignores the fact that many roads cross through the Monument and do not end at the

Monuments boundary. For example, the BLM did not renumber Highway 89 where it crosses

the Monument. However, the BLM renumbered Kane Countys K7000 Cottonwood Canyon

road to be BLM road number 400 within the Monument. Kane Countys K7000 Cottonwood

Canyon road crosses miles of land outside of the Monument, but within the Monument the BLM

designated this road as its own BLM road number 400.

95. The BLMs unilateral decision to post its own road numbering system in the

Monument conflicts with Plaintiffs valid existing rights, has no rational basis, and implements

the BLMs new claim that all roads in the Monument are BLM roads under the regulatory

jurisdiction of the BLM. The BLM, as now counseled by DOI, will continue to treat all roads in

the Monument as BLM roads until Plaintiffs title is confirmed by this Court.

96. Kane County is the highway authority with jurisdiction of county roads and is

statutorily authorized to place numbering signs, markers, and traffic control signs along its roads.

See Utah Code Ann. 41-6a-208(1) and 41-6a-102(63).

97. In 2005, Kane County placed its K road numbering signs on its roads in the

Monument.


22

98. Despite BLMs prior representation that the Plan would be subject to valid

existing rights, the BLM notified Kane County that it had no right to place road numbering signs

along any roads on BLM administered lands, including in the Monument and other public lands.

99. In 2005, the BLM State Director informed Kane County that BLM would not

recognize any Kane County right-of-way on BLM administered lands and that Kane Countys

actions broke the law.

100. In November of 2005, Kane County filed suit against the BLM to challenge the

transportation restrictions in the Monument Plan as being arbitrary and capricious under the

Administrative Procedure Act, 5 U.S.C. 551 et seq.

101. Kane County claimed the BLM could not restrict, regulate or close Kane

Countys public highways until BLM first determined that its actions would not impair Kane

Countys valid existing rights in its public highway rights-of-way.

102. In response, BLM moved to dismiss on grounds that Kane County lacked

standing and could not claim an injury in fact to any right-of-way until after Kane County had

first quieted title to each right-of-way.

103. As expressly stated by BLM in court, Kane County had nothing more than

unproven assertions and no vested rights-of-way within the Monument.

104. BLM stated in court that Kane Countys sole remedy was to sue to quiet title to its

rights-of-way.

105. The court agreed with BLM and held that as a matter of sequence, Kane County

must first quiet title to its rights-of-way before it could challenge BLMs road management


23

actions. This decision is reported as Kane County v. Kempthorne, 495 F.Supp. 1143 (D. Utah

2007), affd 562 F.3d 1077 (10th Cir. 2009) (Monument lawsuit).

106. In the Monument Plan, BLM made a deliberate decision not to acknowledge even

a single R.S. 2477 or public highway right-of-way within the entire Monument.

107. In the Monument Plan, BLM made a deliberate decision not to acknowledge any

Kane County right or interest in public highway management of its roads, including its right to

place warning, numbering and speed limit signs along Kane Countys roads.

108. In the Monument Plan, BLM made a deliberate decision not to acknowledge Kane

Countys right and need to maintain its transportation system roads according to safe engineering

practices.

109. In the Monument Plan, BLM made a deliberate decision not to acknowledge Kane

Countys lawful highway regulatory authority of its transportation system roads, including its

right to adopt motor vehicle ordinances regulating travel on its roads.

110. The BLMs direct adverse actions have denied Plaintiffs vested rights in their

congressionally granted R.S. 2477 and valid existing public highway rights-of-way in the

Monument. These adverse actions have deprived Plaintiffs of their right, title and interest in

each of the roads in the Monument claimed in this action and clouded Plaintiffs title.

The Specific Case Or Controversy Involving Plaintiffs Roads Impaired By The BLMs Kanab Resource Management Plan.

111. In 2004, the BLM began to prepare a comprehensive land management plan for

the lands in Kane County managed by the BLMs Kanab Field Office.

112. As it did during promulgation of the Monument Plan, Kane County attempted to

work with BLM planners in the Kanab Field Office to ensure that Plaintiffs R.S. 2477 and


24

public highway rights-of-way would be acknowledged and left unimpaired. Kane County sought

to confirm its governmental authority to maintain the publics highways, to sign the publics

highways under the bi-county numbering system, and to regulate public motor vehicle travel on

the publics roads.

113. Kane County attempted to ensure that the BLMs Kanab Field Office would

recognize and not impair Plaintiffs valid existing rights in their R.S. 2477 and public highway

rights-of-way, or Kane Countys right to maintain and operate its roads, and its lawful public

highway regulatory authority.

114. Early in the planning process, BLM planners assured Kane County that they

would develop a resource management plan (RMP) subject to valid existing rights and that

BLM would not impair Plaintiffs and the publics rights and interests.

115. However, on December 20, 2006, during the Kanab Field Offices planning

process, the BLMs State Director, counseled by DOI, expressly ordered BLMs land use

planners to avoid any acknowledgement or consideration of Plaintiffs R.S. 2477 and public

highway rights-of-way.

116. The BLM State Director instructed BLM land use planners to write that nothing

in the RMP extinguishes any valid right-of-way, or alters the legal rights the state and counties

have to assert and protect R.S. 2477 rights or to challenge in Federal court or other appropriate

venue any use restrictions imposed by the RMP that they believe inconsistent with their rights.

(emphasis added).

117. This is the same go sue to quiet title language first used in the Monument Plan.


25

118. On October 31, 2008, the BLM adopted its final Resource Management Plan for

the public lands in Kane County managed by the BLMs Kanab Field Office (Kanab RMP).

119. The Kanab RMP for the first time adopted a comprehensive travel plan for roads

crossing public lands managed by the Kanab Field Office.

120. The Kanab RMP includes a Map 9 designating areas of public lands within the

Kanab Field Office that are open for motor vehicle travel, closed to motor vehicle travel, and

public lands limited to use of specific roads and trails.

121. The Kanab RMP also includes a Map 10 showing the BLM routes designated as

being available for motor vehicle use.

122. In the Kanab RMP, BLM made a deliberate decision not to acknowledge or

recognize even one of Plaintiffs R.S. 2477 or public highway rights-of-way within the entire

Kanab Field Office.

123. In the Kanab RMP, BLM made a deliberate decision not to acknowledge or

recognize any Kane County right or interest in the use, maintenance or operation of Plaintiffs

roads according to safe engineering practices. The Kanab RMP, and BLMs implementation, has

prevented Kane County from maintaining its roads claimed herein according to its lawful right.

Because the BLM denies that Kane County has any right, title or interest in any of the roads

claimed herein, Kane County is at risk of being cited for trespass if it maintains any of these

roads. However, Kane County has the lawful right to maintain its roads.

124. In the Kanab RMP, the BLM made a deliberate decision not to acknowledge or

recognize Kane Countys lawful highway regulatory authority of its transportation system roads.


26

125. The Kanab RMP was adopted and has been enforced against Plaintiffs and the

publics rights-of-way in the same manner as the Monument Plan. That is, the BLM claimed all

of Plaintiffs roads crossing federal land in the Kanab Field Office as BLM roads, and the Kanab

Field Office has now closed a number of these roads and posted its own BLM road numbering

signs on the remainder of Plaintiffs roads. The BLMs road closures, numbering signs, and

management of Plaintiffs roads conflicts with Plaintiffs right, title and interest in their public

highway rights-of-way claimed herein.

126. Through the Kanab RMP and its Map 10 route restrictions and closures, the BLM

now claims to have unilateral ownership and jurisdiction of Plaintiffs roads claimed herein.

127. Through the Kanab RMP and by posting its own numbering signs, the BLM has

expressly claimed ownership and management of each of Plaintiffs roads claimed herein in the

Kanab Field Office, and has impaired Plaintiffs rights and interests in the ownership,

maintenance, and jurisdiction of these roads.

128. The BLM has adversely claimed to own Plaintiffs and the publics vested rights-

of-way and has ejected Plaintiffs from their lawful ownership, maintenance and regulation of the

roads claimed herein within the Kanab Field Office.

The Specific Case Or Controversy Involving Plaintiffs Roads Impaired In The Glen Canyon National Recreation Area.

129. Part of the Glen Canyon National Recreation Area (NRA) is located within

Kane County.

130. The NRA was established by Congress on October 27, 1972 by the Glen Canyon

National Recreation Area Enabling Act of 1972, Pub. L. No. 92-593, 86 Stat. 1311 (1972).


27

131. The NRA was established subject to valid existing rights. See Glen Canyon

National Recreation Area Enabling Act of 1972, Pub. L. No. 92-593, 3, 86 Stat. 1311, 1312.

132. Lands within the NRA are managed by the DOI through the National Park

Service (NPS).

133. Plaintiffs own R.S. 2477 and public highway rights-of-way for only a few roads

crossing lands within the NRA. Plaintiffs right, title and interests to these public highway

rights-of-way crossing NRA lands was not challenged or questioned until 2005.

134. Plaintiffs R.S. 2477 and public highway rights-of-way within the NRA claimed

herein serve as public thoroughfares connecting to other roads outside of the NRA, generally

connecting to roads that cross through the Monument. For these roads, Plaintiffs title to the

rights-of-way and roads in the NRA have been impaired by the Monument Plan as set forth

above.

135. All of Plaintiffs R.S. 2477 and public highway rights-of-way in the NRA serve as

segments of roads reaching and connecting to other rights-of-way, roads, and destinations within

and without the NRA.

136. In 2004, the DOIs Solicitors office issued a legal memorandum to all Utah NPS

units, including the NRA, confirming that all State of Utah and Kane County roads crossing R.S.

2477 and public highway rights-of-way on lands managed by NPS in the NRA are under the

highway regulatory authority and jurisdiction of the State and Kane County.

137. This memorandum confirmed Kane Countys statutory right and authority to

operate and maintain its roads, and to regulate public motor vehicle travel on Plaintiffs roads in


28

the NRA. However, the DOI has recently denied that Kane County or the State have any right,

title or interest in their roads in the NRA until title is adjudicated.

138. In 2005, Kane County adopted an off-highway vehicle (OHV) ordinance, Kane

County Ordinance 2005-03, to regulate vehicles, registration, operators, and the Kane County

roads authorized for OHV travel within Kane County.

139. Kane County has the statutory right and authority to adopt ordinances governing

Kane County roads, including ordinances regulating OHV use, to promote safety and protection

of persons, property and the environment. See Utah Code Ann. 41-22-1 and 41-22-10.5.

140. Kane County Ordinance 2005-03 was specifically limited to Kane Countys Class

B and Class D roads, including its roads in the NRA. This ordinance did not authorize any OHV

use of federal lands or federal roads, but was strictly confined to Kane County roads under its

statutory highway authority.

141. On July 18, 2005, during the public comment period for Kane Countys

Ordinance 2005-03, the NRAs Chief Ranger testified that Kane Countys OHV ordinance

would conflict with NPS management of park roads in the NRA. The NPS stated that it would

manage all roads in the NRA as NPS park roads consistent with national park policies.

142. The NRAs Chief Ranger asserted that Kane County does not own any R.S. 2477

or public highway rights-of-way within the NRA, and that Kane County had no authority to

regulate roads in the NRA.

143. As publically stated by the NRAs Chief Ranger in 2005, the NPS now denies that

Kane County has any right, title or interest in any road in the NRA. The NRA is now in the final


29

stages of adopting a specific motor vehicle plan to restrict motor vehicle use on Plaintiffs roads

in the NRA claimed herein.

144. Several of Plaintiffs roads in the NRA claimed herein are in serious need of

repair, maintenance and upgrade. During 2010 and 2011, some of Plaintiffs roads in the NRA

washed out and have become so rutted and worn that they are impassable. Because DOI and

NPS claim that Kane County has no right, title or interest in any right-of-way until adjudicated,

Kane County cannot repair the roads, according to its right, without the risk of being cited for

trespass.

145. In this case, Plaintiffs will confirm title to their NRA roads to ensure that Kane

Countys repairs, maintenance and upgrade activities are conducted within the scope of their

rights-of-way. Plaintiffs will further confirm title to their roads in the NRA to ensure that NPS

forthcoming transportation regulations comply with NPS statutory mandate to adopt regulations

subject to Plaintiffs valid existing rights.

146. As implemented in the Monument Plan, the Kanab RMP, and by the testimony of

the NRAs Chief Ranger, the DOI, BLM and NPS now refuse to acknowledge Plaintiffs valid

existing rights in the publics highways absent a court order.

147. The DOI and NPS have created a case or controversy regarding Plaintiffs

ownership of the roads in the NRA at issue in this case.

The Specific Case Or Controversy Caused By The Department Of Interiors Actions Adverse To All Of Plaintiffs Roads Claimed In This Case.

148. For decades, and in some instances, a century, Plaintiffs and the public benefited

from the quiet and peaceful enjoyment of their R.S. 2477 and public highway rights-of-way.


30

Plaintiffs roads are the lifelines of communities, businesses and recreational interests needing or

desiring to travel the vast expanses of federal lands within Kane County.

149. In 1996, BLM sued Kane County for trespass when Kane County graded some of

its roads crossing public lands. See generally SUWA v. BLM, 425 F.3d 735 (10th Cir. 2005).

150. In doing so, BLM claimed that regardless of any vested R.S. 2477 right-of-way,

Kane County could not regulate or maintain its roads without prior authorization from the BLM.

151. The district court rejected this argument, and held that the existence of an R.S.

2477 right-of-way was key to resolution of the trespass claims.

152. In response, BLM prevailed upon the district court to allow BLM to determine

whether, in the first instance, Kane County owned an R.S. 2477 right-of-way for any of the roads

it had graded.

153. After nine years of litigation, BLMs preemptive claim to the right to decide

whether Kane Countys R.S. 2477 right-of-way existed was wholly rejected, as were the legal

standards BLM attempted to have the court adopt. See generally SUWA v. BLM, 425 F.3d 735

(10th Cir. 2005).

154. The Tenth Circuit confirmed that the holder of an R.S. 2477 right-of-way may

conduct routine road maintenance without prior approval of the BLM.

155. Pursuant to the Tenth Circuits decision in SUWA v. BLM, Kane County has the

right to conduct routine maintenance on its roads crossing R.S. 2477 rights-of-way, without first

obtaining a permit from BLM or NPS.

156. However, in 2009 a DOI Solicitor, who has been the legal advisor for the BLM

and NPS in the numerous road lawsuits filed in the last seven years, testified that either a federal


31

court or the DOI itself must first find Kane County to be a holder of an R.S. 2477 right-of-way

before it has the right to conduct routine maintenance of a claimed State and county road

crossing federal land. The DOIs position is in conflict with law and is adverse to Plaintiffs title

claimed herein.

157. The DOI historically used a voluntary process called an administrative

determination to acknowledge county ownership of an R.S. 2477 right-of-way, but this process

was only used when a county proposed to improve or realign a road. See, e.g., Sierra Club v.

Hodel, 675 F.Supp. 594, 606 (D. Utah 1987) (administrative determination confirmed Garfield

Countys R.S. 2477 right-of-way for the Burr Trail road for purposes of realignment and new

construction).

158. Until expressed in 2009, the DOI had never required an administrative

determination to merely confirm the existence of an R.S. 2477 right-of-way.

159. The DOI recently admitted that over the last five years it has received fifteen

requests from counties in several states to administratively determine the validity of their R.S.

2477 rights-of-way, but it has not completed even one single administrative determination.

Moreover, the BLM State Director recently confirmed that there is a now moratorium on

administrative determinations.

160. In 2005, the BLM State Director demanded that Kane County remove its road

numbering signs from the roads in this suit. The BLM State Director stated that Kane County

had no authority to post road numbering signs on any BLM administered lands. The BLM State

Director threatened to sue Kane County unless it removed its road numbering signs.


32

161. Kane County has the lawful right to place road numbering signs on Plaintiffs

roads and the BLMs actions have created a case or controversy regarding Plaintiffs ownership

of the public highway rights-of-way claimed herein.

162. In 2005, two conservation groups sued Kane County and alleged that Kane

Countys OHV ordinance (discussed supra) violated the Supremacy Clause of the United States

Constitution (TWS lawsuit). This suit alleged that Kane Countys OHV ordinance conflicted

with the federal plans (in the Monument, NRA, and Kanab Field Office) because Kane County

could not authorize OHVs to travel roads crossing federal land unless and until it had first

proven in court that it owned a right-of-way for the road.

163. The district court agreed with the plaintiffs and broadly stated that Kane County

did not own any of the rights-of-way at issue in this suit until it first sued to quiet title. See

Wilderness Socy v. Kane County, 560 F. Supp. 2d 1147, 1159-1160 (D. Utah 2008), affd, 581

F.3d 1198 (10th Cir. 2009). After six years of expensive litigation, the Tenth Circuit sitting en

banc reversed and vacated the district court decision. See Wilderness Society v. Kane County,

632 F.3d 1162 (10th Cir. 2011).

164. The TWS lawsuit involved each of Plaintiffs roads claimed in this suit.

165. The DOI actions complained of herein directly caused Kane County to be sued in

the TWS lawsuit. The TWS lawsuit was caused by DOIs deliberate decision not to recognize or

acknowledge any of Plaintiffs valid existing R.S. 2477 and public highway rights-of-way during

its land management planning.


33

166. Within the last six years, in person, in correspondence, and in court, the DOI has

directly notified Plaintiffs that they have no valid existing rights-of-way in the Monument,

Kanab Field Office Lands, and in the NRA, unless and until Plaintiffs adjudicate their title.

167. Upon the district courts decision in the TWS lawsuit (holding that Kane County

must first quiet its title), and in compliance with the DOIs specific statements (that Kane County

lacks any right, title or interest in its roads until it quiets title), Kane County stopped maintaining

the roads claimed herein where they cross federal land.

168. The DOI then refused to maintain the roads. Despite claiming to own the roads, it

refused to pay to keep them open and maintained. Quite simply, DOI wants to own and manage

these roads but will not pay to maintain them.

169. Left without Kane County maintenance, the roads quickly fell into disrepair, and

both the public and DOI employees began to complain of the safety hazards, precipitous

headcutting, washboards and entire washouts on many of the roads in this case.

170. Unwilling to take responsibility for its own actions, or the roads themselves, the

DOIs response was to direct BLM officials to send letters to Kane County and directly to

members of the public deflecting the blame. These letters informed the public that Kane County

should maintain Kane Countys roads.

171. The letters were written by the BLMs State Director, the BLMs Kanab Field

Office Manager, and the BLMs Monument Manager.

172. The Kane County Commission scheduled a meeting in Salt Lake City with the

BLM State Director to discuss the road maintenance issues raised in these letters. However, with


34

just a few hours notice, DOI summarily cancelled the meeting and left the Commission sitting in

a room in Salt Lake City.

173. Kane County took the depositions of each of these BLM officials regarding their

public statements, the letters, and the conflict they created.

174. The BLMs Kanab Field Office Manager would not acknowledge any road as

being a Kane County road. Kane County informed him that if BLM would acknowledge Kane

Countys ownership of any road needing maintenance or repair, Kane County would

immediately repair and maintain the road. He could not respond.

175. The BLMs Monument Manager testified that when he wrote that Kane County

should maintain Kane Countys roads, he solely meant that the roads were in Kane County, not

owned by Kane County. He testified that Kane County has assertions of ownership, but

ownership has not been adjudicated. He further stated that Kane County must go to court to

adjudicate its ownership.

176. The BLM State Director testified that she did not know if Kane County owned

any right-of-way on federal land. She did, however, testify that the judicial process would

decide ownership. In a letter written to Kane County, the BLM State Director said: We

acknowledge the Countys position with respect to RS 2477 right-of-way claims and agree that

[it] is desirable to timely and finally adjudicate those claims.

177. In 2009, the DOI moved to dismiss a separate Kane County quiet title suit

involving the same BLM plans and adverse actions at issue herein. See Kane County v. United

States, 2:08-cv-0315 (D. Utah) (Bald Knoll case). The DOIs attorneys argued that until DOI

physically closes a road, there is no case or controversy.


35

178. Although the opinion has not been written, the district court rebuked the DOIs

attorneys, stated that DOI had placed Kane County in an impossible Catch-22, and denied

DOIs motion to dismiss. See Minute Entry dated October 30, 2009, Dkt. No. 102, Case No. 08-

cv-0315.

179. DOIs adverse actions have impaired Kane Countys right and authority to

conduct critical routine maintenance on the roads claimed herein, and many are in need of repair.

Upon confirmation of Plaintiffs title, Kane County will immediately resume routine

maintenance, repair and management of these roads. Due to the serious hazards and closures,

Kane County is currently conducting critical repairs and limited maintenance on some of the

roads for purposes of public safety. However, due to DOIs threats and actions, even these

necessary activities leave Kane County at risk of yet another trespass action.

180. DOIs actions have clouded Plaintiffs title to their R.S. 2477 and public highway

rights-of-way for the roads claimed herein. The DOIs deliberate actions have created legal

liability for Kane County, clouded Plaintiffs title to these rights-of-way, impaired Kane

Countys regulatory authority, and placed the traveling public at risk.

181. The actions of the United States and its agencies have, within the last twelve

years, clouded Plaintiffs title and created a case or controversy regarding Plaintiffs ownership,

maintenance, and regulation of the public highway rights-of-way claimed herein. Plaintiffs are

entitled to confirm their ownership of the rights-of-way claimed herein to ensure that they are

spending State and Kane County funds to regulate and maintain Plaintiffs public highways and

to define the relative parties right, title and interest to avoid future trespass actions. Plaintiffs

are further entitled to confirm their ownership of the rights-of-way claimed herein to ensure that


36

the United States and its agencies will change their current practices and comply with their

statutory obligation to adminster federal lands subject to Plaintiffs valid existing rights.

1ST CAUSE OF ACTION QUIET TITLE DIXIE KNOLL ROADS - K1010, K1015, K1020, K1305, K1320 & K1325

182. Plaintiffs incorporate herein and reallege each of the foregoing paragraphs 1

through 181.

Description Of Dixie Knoll Roads And their R.S. 2477 Rights-Of-Way.

183. The Dixie Knoll roads are designated as Kane County road numbers K1010,

K1015, K1020, K1305, K1320 and K1325 and cross lands owned by the United States and

SITLA.

184. The centerline courses of the Dixie Knoll roads are depicted on the maps included

in Exhibits K1010, K1015, K1020, K1305, K1320 and K1325 (Attachment 1 within these

Exhibits). These maps further reflect the lands crossed by these roads as being owned by the

United States and SITLA.

185. The K1010 road commences at its western most point and proceeds northeasterly

a distance of 2.68 miles, more or less, to its terminus.

186. The specific right-of-way for the K1010 road claimed herein crosses 1.32 miles of

United States public land and includes the following segments:

a. K1010 Segment 1, consisting of 0.35 miles, more or less, commencing in

the SESE of Section 3, Township 44 South, Range 9 West, S.L.M., and ending in

the SESE of Section 3, Township 44 South, Range 9 West, S.L.M. The NAD83

mapping grade GPS data plotting the centerline and course of the K1010 road


37

Segment 1 right-of-way claimed herein is attached hereto as Exhibit K1010,

Attachment 2, and incorporated by reference.

b. K1010 Segment 3, consisting of 0.97 miles, more or less, commencing in

the SWNW of Section 1, Township 44 South, Range 9 West, S.L.M., and ending

in the NENE of Section 1, Township 44 South, Range 9 West, S.L.M. The

NAD83 mapping grade GPS data plotting the centerline and course of the K1010

road Segment 3 right-of-way claimed herein is attached hereto as Exhibit K1010,


187. The K1015 road commences at its southern most point and proceeds northeasterly

a distance of 1.54 miles, more or less, to its terminus.


United States public land and includes the following segment:


Lot 1 of Section 11, Township 44 South, Range 9 West, S.L.M., and ending in the

NWNE of Section 1, Township 44 South, Range 9 West, S.L.M. The NAD83




189. The K1020 road commences at the Utah-Arizona border and proceeds

northeasterly a distance of 1.99 miles, more or less, to its terminus.




38



SWSE of Section 32, Township 43 South, Range 8 West, S.L.M. The NAD83




191. The K1305 road commences at its southern intersection with K1000 and proceeds

northeasterly a distance of 3.07 miles, more or less, to its terminus.




the SENE of Section 36, Township 43 South, Range 9 West, S.L.M., and ending

in the SWNW of Section 20, Township 43 South, Range 8 West, S.L.M. The




193. The K1320 road commences at its northern intersection with K1305 and proceeds

southeasterly a distance of 0.99 miles, more or less, to its terminus.




the NENW of Section 31, Township 43 South, Range 8 West, S.L.M., and ending


39

in the SENE of Section 31, Township 43 South, Range 8 West, S.L.M. The




195. The K1325 road commences at its southern intersection with K1305 and proceeds

northerly a distance of 2.51 miles, more or less, to its terminus.




the NENW of Section 31, Township 43 South, Range 8 West, S.L.M., and ending

in the NWSW of Section 20, Township 43 South, Range 8 West, S.L.M. The




197. In this action Plaintiffs seek to quiet title to the public highway rights-of-way for

the Dixie Knoll roads solely as they cross United States public land as included and specifically

described by segment in the preceding paragraphs. The Dixie Knoll roads include each segment

of road specifically set forth in the preceding paragraphs.

198. The course, scope and existence of the rights-of-way for the Dixie Knoll roads as

public highways and general thoroughfares has not been challenged and is not in dispute as they

may cross SITLA lands.


40

199. The Dixie Knoll roads provide access to and across public land, access to other

roads, and access to SITLA and private land. The Dixie Knoll roads serve the publics

transportation needs as general thoroughfares in Kane County and the State of Utah.

200. An R.S. 2477 right-of-way is a congressional grant of a public property interest

and right of access that includes an implied grant of a full right of access to and use of the road to

ensure the public receives the benefit, use and enjoyment of the public highway right-of-way

expressly granted by Congress.

201. The rights-of-way for the Dixie Knoll roads claimed herein include that which is

reasonable and necessary to ensure safe travel and passage of vehicles, including a minimum

right-of-way width of 66 feet, along with cuts, fills, slopes, water bars, drainage runouts, and

such features and facilities as are reasonable and necessary for safe and efficient operation of the

roads as public highways. These accoutrements have historically been acknowledged by DOI

and under law as being reasonable and necessary for the use, benefit and enjoyment of public

highway rights-of-way. This minimum right-of-way width is in accord with State law. See Utah

Code Ann. 72-5-302(4)(b).

Acceptance of the Dixie Knoll Roads R.S. 2477 Rights-of-Way Prior to October 21, 1976.

202. Prior to October 21, 1976, Plaintiffs and the public accepted the congressional

grant of R.S. 2477 public highway rights-of-way for the Dixie Knoll roads, as described herein,

on public lands that were not reserved.

203. The public highway rights-of-way accepted and perfected for the Dixie Knoll

roads include the entire length and course of the roads as described herein on lands owned by the

United States.


41

204. Plaintiffs Dixie Knoll roads have long appeared, in one or more segments, on

United States Cadastral Survey Plats since 1910, which evidences the acceptance, use and

existence of the rights-of-way for these roads.

205. Plaintiffs Dixie Knoll roads have long appeared on a United States Geologic

Survey (USGS) map, which evidences the acceptance, use and existence of the rights-of-way

for these roads.

206. The Dixie Knoll roads have appeared on that USGS Elephant Butte, Utah 7.5

minute quadrangle map since at least 1980 (as compiled from aerial photographs taken in 1973).

207. Pre-1976 aerial photography confirms the historical use, existence and acceptance

of the rights-of-way for the Dixie Knoll roads as public highways located on the land at issue in

this case, and following the courses described herein. More recent aerial photography continues

to show the roads as they have historically existed since prior to October 21, 1976.

Acceptance of the Dixie Knoll Roads R.S. 2477 Rights-of-Way By Public Use Prior to 1976.

208. The Dixie Knoll roads have long served as public highways providing access to

and across public land, and to and across SITLA and private land.

209. Witnesses with personal knowledge of the history of the K1010 road confirm

public use of this road as a public thoroughfare on a continuous basis for more than ten years

prior to October 21, 1976 and dating back to at least the 1940s consisting of general public travel

(such as accessing private land, mineral exploration, hunting, livestock operations, wood

gathering, camping, and recreation), and continuing after 1976.




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prior to October 21, 1976 and dating back to at least the early 1950s consisting of general public

travel (such as accessing private land, mineral exploration, hunting, livestock operations, wood











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215. Witnesses with personal knowledge of the history of the Dixie Knoll roads

confirm public use of the roads on a continuous basis for more than ten years prior to October

21, 1976 by means of motor vehicles.

216. Currently known reputation in the community is that the Dixie Knoll roads have

been open for all to come and go as they please since at least as early as the early 1950s and

continuing after 1976.

217. The Dixie Knoll roads were used on a continuous and nonexclusive basis as

public thoroughfares for at least ten years prior to October 21, 1976.

218. The Dixie Knoll roads traverse valid and perfected R.S. 2477 and public highway

rights-of-way sufficient in scope for general motor vehicle travel and include that which is

reasonable and necessary to meet the exigencies of motor vehicle travel according to safe

engineering practices that protect the public, the roads, and prevent undue degradation of the

adjacent land.

219. Public motor vehicle use of the Dixie Knoll roads as public thoroughfares

traversing unreserved public lands on a continuous basis for a period in excess of ten years prior

to October 21, 1976 confirms acceptance of the grant of R.S. 2477 public highway rights-of-way

for the Dixie Knoll roads.

220. The United States never specifically denied or questioned the existence of

Plaintiffs R.S. 2477 rights-of-way for the Dixie Knoll roads until October of 2008 when BLM

adopted and began implementing the Kanab RMP and denied and impaired Plaintiffs rights and


44

interests in these roads. In 2005, the BLM State Director stated that BLM would not recognize

any Kane County right-of-way on BLM land until adjudicated. Prior to 2005, Plaintiffs did not

have any notice of a potential adverse claim by the United States to Plaintiffs rights, title and

interests in the rights-of-way for the Dixie Knoll roads.

221. The United States recent actions have now denied Kane Countys jurisdiction to

regulate and maintain the Dixie Knoll roads as public highways, have impaired Kane Countys

ability to operate the Dixie Knoll roads as a part of its transportation system for the public

benefit, and have clouded Plaintiffs title to the public highway rights-of-way for the Dixie Knoll

roads.

222. Plaintiffs are entitled to an order of this Court quieting title to the R.S. 2477

public highway rights-of-way for the Dixie Knoll roads on lands owned by the United States as

described herein and including that which is reasonable and necessary for the use, benefit and

enjoyment of the Dixie Knoll roads.

2ND CAUSE OF ACTION QUIET TITLE K1025 ROAD

223. Plaintiffs incorporate herein and reallege each of the foregoing paragraphs 1

through 181.

Description Of K1025 Road And Its R.S. 2477 Right-Of-Way.

224. The K1025 road is designated as Kane County road number K1025 and crosses

lands owned by the United States and the State of Utah.

225. The centerline course of the K1025 road is depicted on the map included in

Exhibit K1025, Attachment 1. This map further reflects the lands crossed by this road as being

owned by the United States and the State of Utah.


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226. The K1025 road commences at its southern most point and proceeds generally

northwest a distance of 3.13 miles, more or less, to its terminus.


United States public land and includes the following segments:



NESE of Section 4, Township 44 South, Range 8 West, S.L.M. The NAD83




b. K1025 Segment 3, consisting of 0.74 miles, more or less, commencing in

the SWNE of Section 4, Township 44 South, Range 8 West, S.L.M., and ending

in the SWSE of Section 33, Township 43 South, Range 8 West, S.L.M. The




228. In this action Plaintiffs seek to quiet title to the public highway right-of-way for

the K1025 road solely as it crosses United States public land as included and specifically

described by segment in the preceding paragraph. The K1025 road includes each segment of

road specifically set forth in the preceding paragraph.


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229. The course, scope and existence of the right-of-way for the K1025 road as a

public highway and general thoroughfare has not been challenged and is not in dispute as it may

cross State of Utah lands.

230. The K1025 road provides access to and across public land, access to other roads,

and access to SITLA and private land. The K1025 road serves the publics transportation needs

as a general thoroughfare in Kane County and the State of Utah.

231. An R.S. 2477 right-of-way is a congressional grant of a public property interest

and right of access that includes an implied grant of a full right of access to and use of the road to

ensure the public receives the benefit, use and enjoyment of the public highway right-of-way

expressly granted by Congress.

232. The right-of-way for the K1025 road claimed herein includes that which is

reasonable and necessary to ensure safe travel and passage of vehicles, including a minimum

right-of-way width of 66 feet, along with cuts, fills, slopes, water bars, drainage runouts, and

such features and facilities as are reasonable and necessary for safe and efficient operation of the

road as a public highway. These accoutrements have historically been acknowledged by DOI

and under law as being reasonable and necessary for the use, benefit and enjoyment of public

highway rights-of-way. This minimum right-of-way width is in accord with State law. See Utah

Code Ann. 72-5-302(4)(b).

Acceptance of the K1025 Road R.S. 2477 Right-of-Way Prior to October 21, 1976.

233. Prior to October 21, 1976, Plaintiffs and the public accepted the congressional

grant of an R.S. 2477 public highway right-of-way for the K1025 road, as described herein, on

public lands that were not reserved.


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234. The public highway right-of-way accepted and perfected for the K1025 road

includes the entire length and course of the road as described herein on lands owned by the

United States.

235. Plaintiffs K1025 road has long appeared, in one or more segments, on United

States Cadastral Survey Plats since 1910, which evidence the acceptance, use and existence of

the right-of-way for this road.

236. Plaintiffs K1025 road has long appeared on USGS maps, which evidence the

acceptance, use and existence of the right-of-way for this road.

237. The K1025 road has appeared on that USGS Yellowjacket Canyon, Utah 7.5

minute quadrangle map since at least 1985 (as compiled from aerial photographs taken in 1976).

238. The K1025 road has also appeared on that USGS Kanab, Utah 15 minute

quadrangle map since at least 1957 (as compiled from aerial photographs taken in 1953 and

1955).

239. Pre-1976 aerial photography confirms the historical use, existence and acceptance

of the right-of-way for the K1025 road as a public highway located on the land at issue in this

case, and following the course described herein. More recent aerial photography continues to

show the road as it has historically existed since prior to October 21, 1976.

Acceptance of the K1025 Road R.S. 2477 Right-of-Way By Public Use Prior to 1976.

240. The K1025 road has long served as

Documents

HOLLAND & HART LLP Shawn T. Welch, #7113 Tamara L ... · Shawn T. Welch, #7113 ... The executive power of the State is vested ... necessary to ensure safe travel and passage of vehicles