{"id":625,"date":"2022-11-02T20:04:53","date_gmt":"2022-11-03T02:04:53","guid":{"rendered":"https:\/\/celj.cu.law\/?p=625"},"modified":"2022-11-02T20:04:53","modified_gmt":"2022-11-03T02:04:53","slug":"clear-convincing-the-proper-evidentiary-standard-for-r-s-2477-claims","status":"publish","type":"post","link":"https:\/\/celj.cu.law\/?p=625","title":{"rendered":"Clear & Convincing: The Proper Evidentiary Standard for R.S. 2477 Claims"},"content":{"rendered":"

I. Introduction<\/strong><\/p>\n

Since the enactment of the Wilderness Act in 1964, some western states and counties have become involved in protracted battles over the federal designation of Wilderness within their jurisdictions. Many of these states and counties are composed of significant amounts of federally controlled land – for example, 64.5 percent of the State of Utah is owned and managed by the federal government.[2]<\/a><\/sup> For many of these communities, Wilderness is viewed as a threat because it restricts certain revenue-generating activities (e.g. oil or gas development) and methods of access (e.g. motorized vehicles and bicycles). As a result, the fight over Wilderness has become emblematic of the longstanding federal-local tug-of-war over the management of western public lands. One tool available to states and counties seeking to prevent Wilderness designations is Revised Statute 2477 (\u201cR.S. 2477\u201d), an 1866 mining statute that grants public rights-of-way across the unreserved public domain.[3]<\/a><\/sup> By obtaining recognition of rights-of-way under that provision, Wilderness opponents can render the lands unsuitable for Wilderness designation.<\/p>\n

In such an effort, in 2012, the State of Utah filed twenty-one lawsuits in federal district court seeking recognition of thousands of R.S. 2477 rights-of-way across the state.[4]<\/a><\/sup> According to the conservation group Southern Utah Wilderness Alliance (\u201cSUWA\u201d), the claimed rights-of-way in these suits amount to approximately 36,000 miles of roads.[5]<\/a><\/sup> The lawsuits have resulted in significant litigation, as the state and its county allies seek recognition of these claims, while groups like SUWA seek to impede their progress.<\/p>\n

Throughout the protracted litigation over R.S. 2477, many legal questions have been raised and many have been answered, but a few remain unresolved. One question of law that remains unsettled is the proper evidentiary standard that applies to a R.S. 2477 claim.[6]<\/a><\/sup> Must a proponent demonstrate the elements of their claim by a preponderance of the evidence or by clear and convincing evidence? Utah and the counties, in order to more easily facilitate recognition of their R.S. 2477 claims, have argued for a preponderance standard. To their dislike, the District Court of Utah has applied the stricter clear and convincing standard.[7]<\/a><\/sup> In two separate appeals to the Tenth Circuit in 2014, the circuit court resolved the appeals on other grounds and therefore declined to reach the evidentiary-standard issue.<\/p>\n

This Article argues that clear and convincing is the proper evidentiary standard for R.S. 2477 claims in Utah on two grounds: (1) under the test for validating R.S. 2477 claims, as developed by the Tenth Circuit in SUWA v. BLM<\/em>, clear and convincing is the applicable standard for public rights-of-way under Utah state law and it is therefore the proper standard for these federally-granted rights-of-way, and (2) the higher showing required by a clear and convincing standard is consistent with other areas of federal jurisprudence and the policy rationales that support them\u2014i.e. whenever the American public stands to lose something to a private individual or entity, the onus is on that individual or entity to demonstrate the validity of their claim because they are seeking something in their private capacity that, until now, belonged to all Americans.<\/p>\n

In order to facilitate this discussion, this Article proceeds as follows: Section I provides the background information necessary for understanding this issue\u2019s context, including a description of the R.S. 2477 statute, the Quiet Title Act, and the Tenth Circuit\u2019s decision in SUWA v. BLM<\/em>. Section II provides a brief background on evidentiary standards in general, and reviews the arguments and discussion of evidentiary standard in the two Tenth Circuit opinions from 2014 to see how the law arrived at its current state. Finally, Section III presents the arguments for adopting the clear and convincing standard, as described above.<\/p>\n

<\/a> II. Legal Background \u2013 R.S. 2477, the Quiet Title Act, and SUWA v. BLM<\/em><\/strong><\/p>\n

<\/a> A. R.S. 2477 \u2013 Its Origins and Repeal<\/strong><\/p>\n

R.S. 2477 is the common reference to a provision of an 1866 mining statute that granted rights-of-way across unreserved public domain land.[8]<\/a><\/sup> The provision states, in its entirety: \u201cAnd be it further enacted,<\/em> That the right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted.\u201d[9]<\/a><\/sup> Presumably, Congress intended this provision, and the parallel provision in that act granting rights-of-way for canals, as means of facilitating mineral development, as that was the primary subject of the act; however, there is no legislative history that sheds light on the specific legislative intent behind the provision.[10]<\/a><\/sup> Whatever Congress\u2019 original intent, this understated statutory provision remained the law for 110 years until it was repealed by the Federal Lands Policy and Management Act (\u201cFLPMA\u201d) of 1976.[11]<\/a><\/sup> However, an un-codified savings provision in FLPMA stated that rights-of-way in existence on October 21, 1976 were not terminated.[12]<\/a><\/sup> This \u201cgrandfather\u201d provision for valid existing rights-of-way set the stage for the R.S. 2477 litigation we see today.<\/p>\n

For many years, a basic question existed in relation to R.S. 2477 claims: whether state or federal law governed under the statute. The statute does not indicate whether state law should define the establishment of a right-of-way or whether federal courts can fill in the statutory gap with federal definitions. Without an answer to this preliminary question, the standard for determining the validity of a claimed R.S. 2477 right-of-way was a topic of hot debate. A 2003 report from the Congressional Research Service suggested that a valid claim under R.S. 2477 is one that meets the requirements of both state and federal law and noted that areas of conflict between the two appeared to be few.[13]<\/a><\/sup> Despite this suggestion, in 2005, the Tenth Circuit held that validation of R.S. 2477 claims is a matter of federal law, but federal law \u201cborrows\u201d from long-established common law and principles of state law to the extent that they are useful in effectuating congressional intent.[14]<\/a><\/sup> Section II discusses this \u201cborrowing\u201d in much greater detail.<\/p>\n

Additionally, determining whether a valid R.S. 2477 right-of-way exists depends in large part on the interpretation of the statutory terms \u201cconstruction\u201d and \u201chighway.\u201d With no definitions included in the statute and no legislative history on point, proponents and opponents of R.S. 2477 claims have wide latitude to assert their varying interpretations of these important terms. After much litigation, some settled meaning has begun to be recognized.[15]<\/a><\/sup> However, while some clarity has been brought to R.S. 2477 claims on these particular issues, questions such as the proper evidentiary standard remain unanswered.<\/p>\n

<\/a> B. The Quiet Title Act \u2013 Providing a Federal Cause of Action for Resolving R.S. 2477 Claims<\/strong><\/p>\n

While R.S. 2477 may grant the right-of-way in dispute, it is the Quiet Title Act that allows a claimant to pursue that claim against the federal government. As a sovereign, the federal government has absolute immunity from any legal claims brought against it.[16]<\/a><\/sup> Immunity from suit restricts claims brought by states, just like suits brought by any other entity.[17]<\/a><\/sup> Recognizing the difficulties that this situation created for the effective resolution of land title claims against the federal government, Congress enacted the Quiet Title Act in 1972.[18]<\/a><\/sup> Subject to some exceptions, the Quiet Title Act provides \u201cthe 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\u2026.\u201d[19]<\/a><\/sup> As a limited waiver of sovereign immunity, a number of courts have held that the terms of the statute must be strictly construed.[20]<\/a><\/sup> In Block v. North Dakota<\/em>, the U.S. Supreme Court held that the Quiet Title Act was the exclusive means by which adverse claims to the United State\u2019s title to real property may be brought.[21]<\/a><\/sup> Exclusive original jurisdiction under the Quiet Title Act is in federal district court for the district where the disputed real property is located.[22]<\/a><\/sup> Claims brought under the Quiet Title Act are tried by the court, without a jury.[23]<\/a><\/sup><\/p>\n

In addition to the statutory limitations placed on the scope of real property claims that may be brought under the act and the jurisdictional and venue specifications described above, the Quiet Title Act has several other important restrictions for states or counties to consider when seeking to quiet title to a R.S. 2477 right-of-way. First, the statutory language and subsequent judicial interpretation make clear that only claims that are \u201cadverse\u201d to the United States\u2019 interest in the real property may be brought under the Act.[24]<\/a><\/sup> Therefore, for a district court to have jurisdiction over a claim brought under the Quiet Title Act, the claimant must establish that: (1) the United States \u201cclaims an interest\u201d in the property at issue, and (2) title to the property is \u201cdisputed.\u201d[25]<\/a><\/sup> Second, the Quiet Title Act also contains a general twelve-year statute of limitations.[26]<\/a><\/sup> Claims brought after the period has run are barred. These restrictions have limited the ability of states and counties to bring quiet title actions for adjudication of claimed R.S. 2477 rights-of-way.<\/p>\n

<\/a> C. A Landmark Decision: SUWA v. BLM – Setting the Stage for Subsequent R.S. 2477 Litigation<\/strong><\/p>\n

In SUWA v. BLM<\/em>, the Tenth Circuit finally articulated the process for and some of the standards by which R.S. 2477 claims brought under the Quiet Title Act would be adjudicated. The circuit court noted that R.S. 2477 required no administrative formalities for the perfection of a right under the statute, making it unique from other federal land statutes. The absence of any required administrative formalities resulted in few records relating to claims under the statute and much confusion when it came time to validate claimed R.S. 2477 rights-of-way.[27]<\/a><\/sup><\/p>\n

At issue in SUWA v. BLM<\/em> were sixteen claimed R.S. 2477 rights-of-way across lands managed by the Bureau of Land Management (\u201cBLM\u201d) in the southern Utah counties of San Juan, Kane, and Garfield. In 1996, without notice to the BLM, county road crews entered upon and graded these roads. While it appeared that none had ever been graded before, the counties claimed these roads as right-of-ways under R.S. 2477. Six of the roads were in Wilderness Study Areas and nine were in Grand Staircase-Escalante National Monument. SUWA subsequently filed suit against the counties and BLM, alleging that the counties\u2019 road construction activities were illegal and that the BLM had violated its duties under FLPMA, the Antiquities Act, and the National Environmental Policy Act by not taking action. The BLM cross-claimed against the counties alleging the grading activities constituted trespass and degradation of federal property in violation of FLPMA. The counties defended on the ground that the grading activities were lawful because they took place within valid R.S. 2477 rights-of-way. As the existence of valid R.S. 2477 rights-of-way were essential to the determination of the claims before the district court, the BLM first sought to administratively determine the validity of the claimed rights-of-way and concluded that fifteen of the sixteen claims were invalid. On SUWA\u2019s motion, the district court affirmed the agency\u2019s findings and determinations in their entirety. The counties appealed.<\/p>\n

On appeal to the Tenth Circuit, the counties successfully argued that the BLM does not have primary jurisdiction to determine the validity of R.S. 2477 claims.[28]<\/a><\/sup> Considering the BLM\u2019s longstanding reluctance to regulate R.S. 2477 rights-of-way and in light of a congressional appropriations rider that prohibited the BLM from issuing regulations pertaining to the recognition, management, or validity of a R.S. 2477 right-of-way, the Tenth Circuit held that the BLM did not have the authority to make binding decisions as to the validity of R.S. 2477 rights-of-way.[29]<\/a><\/sup> As a result, the Tenth Circuit remanded the case to the district court to conduct a plenary review and to resolve the R.S. 2477 claims at issue.[30]<\/a><\/sup> Recognizing the substantial burden that its ruling placed on the district court, the Tenth Circuit proceeded to address some of the significant legal issues that were briefed by the parties and ruled on by the district court.<\/p>\n

The first of these issues was the question of whether state or federal law governs the perfection of a R.S. 2477 right-of-way. At common law, there are two elements for the dedication of a public right-of-way: (1) the landowner must objectively manifest their intent to dedicate property to the public as a right-of-way, and (2) the public must accept the offer.[31]<\/a><\/sup> Should state or federal law decide these two elements? In a sense, the court \u201csplit the baby\u201d on the issue. The counties argued for state law, BLM argued for federal law, and the Congressional Research Service had suggested the simultaneous application of both. Instead, the Tenth Circuit held that both federal and state law played their respective roles:<\/p>\n

We therefore conclude that federal law governs the interpretation of R.S. 2477, but that in determining what is required for acceptance of a right-of-way under the statute, federal law \u201cborrows\u201d from long-established principles of state law, to the extent that state law provides convenient and appropriate principles for effectuating congressional intent. The applicable law in this case is that of the State of Utah, supplemented where appropriate by precedent from other states with similar principles of law.[32]<\/a><\/sup><\/p>\n

In regards to the first element, the Tenth Circuit would later recognize that R.S. 2477 constituted a standing offer by the federal government for right-of-way across the public lands.[33]<\/a><\/sup> In other words, federal law governs the first element while the second element is largely a matter of state law. In reaching this conclusion, the Tenth Circuit relied on the text of the statute and the U.S. Supreme Court\u2019s decision in Wilson v. Omaha Indian Tribe<\/em> for factors used to determine when to borrow from state law for the interpretation of a federal statute.[34]<\/a><\/sup><\/p>\n

After resolving that issue, the Tenth Circuit went on to address the burden of proof (but not the standard of proof) and the applicable substantive common law standards in Utah. The court quickly dispatched with the question concerning the burden of proof by affirming the district court\u2019s ruling that the burden was on the counties (i.e. the party seeking to enforce the rights-of-way against the federal government).[35]<\/a><\/sup> \u201cThis allocation of the burden of proof to the R.S. 2477 claimant is consonant with federal law and federal interests.\u201d[36]<\/a><\/sup> The Tenth Circuit also elaborated on several substantive standards not directly relevant to the argument advanced in this Article, and which are therefore not discussed, such as the public use standard, the mechanical construction standard, and the definition of \u201chighway.\u201d Consistent with its holding for \u201cborrowing\u201d state law on this element, the Tenth Circuit\u2019s discussion focused heavily on the leading Utah Supreme Court decision interpreting R.S. 2477, Lindsay Land & Live Stock Co. v. Churnos<\/em>.[37]<\/a><\/sup> In Lindsay<\/em>, the Utah Supreme Court looked to the state statutes in force at the time the right-of-way was claimed to have been accepted and held that acceptance in Utah required \u201ccontinuous public use of a period of ten years.\u201d Despite the Tenth Circuit\u2019s discussion of these many important legal issues, the circuit court did not address that standard of proof that the claimant must satisfy for recognition of a valid R.S. 2477 right-of-way.<\/p>\n

<\/a> D. Summary: Adjudication of R.S. 2477 Claims<\/strong><\/p>\n

As evidenced by the preceding discussion, the law pertaining to R.S. 2477 claims is both complex and expansive. While there are other important issues related to the adjudication of R.S. 2477 claims, those issues are not directly relevant to the goals of this Article and have therefore been omitted. In contrast, for this Article\u2019s purposes, the most relevant points of law related to R.S. 2477 law, as summarized from the preceding discussion, are that:<\/p>\n