Opinion
Case No. 2:95CV559 DAK
January 14, 2003
ORDER
This matter is before the court on the request of the National Park Service (the "NPS") and Karen Wade (collectively, the "Federal Defendants") and Southern Utah Wilderness Alliance ("SUWA") for the court to evaluate whether it has jurisdiction to entertain the State of Utah's (the "State") and San Juan County's (the "County") motions for partial summary judgment prior to hearing the merits of the their motions. A hearing on the requests was held on December 18, 2002. At the hearing, SUWA was represented by Heidi J. McIntosh, the NPS was represented by Carlie Christensen and Bruce D. Bernard, the State was represented by Ralph L. Finlayson, the County was represented by Shawn T. Welch, and the Defendants-Intervenors were represented by Steven Lechner.
These requests are found in the Federal Defendants' and SUWA's memorada in opposition to the State's and County's motions for partial summary judgment.
Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the motions under advisement, the court has further considered the law and facts relating to these motions. Now being fully advised, the court renders the following Memorandum Decision and Order.
I. BACKGROUND
This action, involving Salt Creek Canyon, has a long procedural history, which will not be recounted here. In February 2001, after remand from the Tenth Circuit, this court agreed with the NPS and SUWA that this action should be stayed-with the exception of the R.S. 2477 issue-pending the Park Services's environmental assessment and decision regarding vehicle travel in the canyon. At the same time, the court granted SUWA leave to file an Amended Complaint, which would, among other things, include the State and County as defendants, so that the R.S. 2477 issue could be resolved.
In the Amended Complaint, SUWA states that the matters alleged in the Amended Complaint involve, among other things, "San Juan County and the State of Utah's claim that they hold a right-of-way on [national park service lands] under Revised Statute 2477." The crux of SUWA's Amended Complaint is that County officials had allegedly been driving up Salt Creek Canyon after the NPS had issued a closure order, and that the NPS had allegedly acquiesed in or failed to prevent the County's alleged illegal activities in the Canyon.
The Amended Complaint asserts two causes of action, both of which are asserted against the NPS. The first pertains to the NPS' alleged violation of the National Park Service Organic Act and the Administrative Procedures Act ("APA") by permitting jeep and vehicle use in Salt Creek Canyon without considering whether such use is appropriate. The second cause of action asserts that the NPS has an obligation and duty to determine the validity of property claims adverse to the United States and to require specifically that the State and County demonstrate the validity of their alleged right-of-way before making a decision or taking agency action allowing use of Salt Creek Canyon as a claimed "highway" right-of-way. In the absence of such a determination, SUWA alleges, the NPS has the duty to prevent the State and the County from trespassing on these fragile lands.
Although SUWA does not assert a claim against the State or County, it seeks relief against them. Specifically, SUWA requests that the court enter an order enjoining them from engaging in further activities for which no valid right-of-way has been established and declaring that the State and County must obtain a determination from the Park Service on the alleged rights-of-way prior to traveling the route with motorized vehicles.
In answering the Amended Complaint, both the State and County "admit" that they co-own a highway right-of-way in Salt Creek Canyon and deny that they have not established the validity of their right-of-way. They affirmatively allege that, pursuant to R.S. 2477, the right-of-way vested by operation of law before the National Park was created in 1964 and that the pre-park construction, maintenance, and public use of the Salt Creek Road under federal and state law established their ownership by operation of law. The State and County claim that Plaintiff bears the burden of disproving the validity of their alleged right-of-way. Neither the State nor the County has asserted a cross-claim against the NPS, and they did not assert a counterclaim against SUWA.
In August 2002, the State and County moved for partial summary judgment, seeking a finding that the Salt Creek Road from Peekaboo Spring to Angel Arch and Upper Jump is a valid and perfected R.S. 2477 right-of-way and also that the gate at Peekaboo Spring interferes with the public's right of access over the Salt Creek Road.
II. DISCUSSION
The NPS and SUWA argue that the State's and County's motions for partial summary judgment are not properly before this court because neither the State nor the County has filed a claim against the NPS. The NPS and SUWA contend that the failure to assert a cross-claim against the NPS bears directly on this court's subject matter jurisdiction and implicates significant sovereign immunity considerations. They argue that, by failing to identify a statute that confers subject matter jurisdiction on the court and a federal law that waives the United States' sovereign immunity, the State and County have failed to establish that this court has jurisdiction, and it is their burden to demonstrate that the court has jurisdiction over their claims.
The NPS admits that, to the extent the State's and County's motions seek a title determination against the United States, the Quiet Title Act (the "QTA") constitutes a limited waiver of sovereign immunity from suit. However, the NPS and SUWA contend that neither the State nor the County has asserted a claim under the QTA or met the requirements for doing so. The NPS and SUWA claim that, for immunity to be waived, the conditions of the QTA must be strictly observed. See Vincent Murphy Chevrolet Co. v. United States, 766 F.2d 499, 452 (10th Cir. 1985). For example, they argue, prior to filing an action under the QTA, the State must notify the appropriate federal agency of the State's intention to file suit. Specifically, under the QTA, notification must be given to the federal agency with jurisdiction over the disputed lands 180 days in advance of the commencement of the suit and must set forth the basis for the suit and a description of the lands included in the suit. Here, neither the State nor the County allege that they notified the NPS of their intention to file suit, the basis for the suit, or a description of the lands included in the suit.
Moreover, the NPS and SUWA claim that, even if the State and County could overcome this prerequisite to suit, they still could not successfully claim a waiver of sovereign immunity in this case because the QTA requires that the complaint set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States. The NPS and SUWA assert that, even if the State's and County's general denials contained in their Answers were construed as asserting a claim, the claim would still be deficient because the answers assert only the general location of the State's and County's claims. According to SUWA and the NPS, the State and County do not assert with particularity the specific location of the claimed right-of way or when or under what circumstances they acquired the claimed right-of way.
Similarly, the NPS and SUWA contend, the State's and County's Answers do not provide any relevant details regarding the creation, use, and extent of the claimed right-of-way. Further, according to SUWA and the NPS, the Answers fail to identify with particularity the circumstances under which any property interest was purportedly acquired. The NPS and SUWA argue that, although the County's motion asserts with greater specificity than its Answer, the nature of its claimed right-of-way and the circumstances under which it was acquired, these assertions do not satisfy the QTA requirements, which pertain to the allegations in a complaint. Thus, SUWA and the NPS contend that the State and County have failed to establish a waiver of sovereign immunity, and consequently, the court has no jurisdiction to entertain their motions.
Further, the NPS and SUWA argue that, to the extent the motions seek to challenge the Canyonlands Environmental Assessment, the APA constitutes a waiver of immunity, but neither party has asserted a claim under the APA or met the requirements for doing so, which deprives the court of jurisdiction. The NPS and SUWA claim that the State and County have not alleged a final agency action, which is the only basis for this court's jurisdiction over this claim. The NPS and SUWA also assert that the State and County have failed to confine the documentation filed in support of their motions to the agency record.
Finally, to the extent that the State and County seek a declaration that they have a valid and perfected R.S. 2477 right-of-way against SUWA, rather than the federal defendants, the NPS and SUWA argue that the motions must be denied because the United States, which owns the property underlying the claimed right-of-way, is an indispensable party to such a determination and has not been joined in such a claim. The NPS and SUWA claim that the United States cannot be joined in this claim because it cannot be joined in the absence of a clear and unequivocal waiver of its sovereign immunity, and thus joinder would divest this court of jurisdiction. Thus, they claim, because the United States is an indispensable party but cannot be joined, the State's and County's claims must be dismissed for nonjoinder.
The NPS points out that the State and County have an adequate remedy if their motions are denied because they can file a cross-claim against the United States, identifying the basis for the Court's jurisdiction and the express waiver of sovereign immunity for the relief they seek.
To the contrary, the State and County essentially argue, among other things, that, if the court has jurisdiction over SUWA's claims in this action, then it also has jurisdiction to consider the State's and County's motions for partial summary judgment. They point out that their motions are merely defenses to the relief requested by SUWA. The State points out that it would be "unacceptably inequitable" to foreclose the State and County from defending against SUWA's claims.
The State and County highlight the fact that, in January 2001, the NPS supported the joinder of the County (and presumably the State) at the hearing on SUWA's motion for leave to amend the complaint to add these entities as defendants. Indeed, the court stated in its Order of February 1, 2001, that
[T]he Park Service, while not agreeing with all of SUWA's legal or factual allegations, does not oppose SUWA's motion and agrees that the requested amendment would enhance the prospects that issues pertinent to the questions of agency management of resources in Salt Creek Canyon involved in this action can be resolved in an orderly way. In addition, the Park Service agrees that joinder of San Juan County (and presumably the State) would also give the court jurisdiction to ensure that San Juan County's and the State's actions pending final resolution of these issues do not limit the ability of the court to grant complete relief
The State also claims that it is disingenuous for the NPS to now claim that it expected a cross-claim to be filed against it. According to the State, at the January 2001 hearing, the NPS stated that it wished to resolve the R.S. 2477 issue as soon as possible and within 12-14 months after the hearing. Knowing that the QTA process would take at least 180 days and that there would inevitably be discovery and motions on the issue, the NPS could not have expected completion of all these events within 12-14 months, according to the State. Furthermore, the State points out that counsel indicated at the May 9, 2002 status conference that discovery was complete, with no exception for the R.S. 2477 issue. This acknowledgment, according to the State, is further evidence that no one had sought to condition resolution of the R.S. 2477 issue on the State's filing of a new and separate claim.
After considering SUWA's and NPS's requests and considering the arguments of all the parties, the court is more than a little perplexed at the actions of the NPS and SUWA. SUWA has sued the NPS for, among other things, an alleged obligation and duty to determine the validity of property claims adverse to the United States and to require specifically that the State and San Juan County demonstrate the validity of its alleged right-of-way before making a decision or taking agency action allowing use of Salt Creek Canyon as a claimed "highway" right-of-way. The State and County have asked for such a determination regarding their R.S. 2477 claims — a determination which SUWA has sued the NPS to obtain. Now, almost two years after the NPS supported SUWA's request to name the State and the County as defendants in this action so that the R.S. 2477 issue could be resolved, the NPS and SUWA suddenly assert that the court has no jurisdiction to make such a determination. At the various status conferences that have been held in this case, no mention was ever made by the NPS or SUWA that they were expecting — or demanding — that cross-claims be filed by the State and County. Further, if a claim was necessary to resolve this issue, it is unclear why the NPS itself has not asserted cross-claims against the State and County.
While the court does not understand why the NPS and SUWA did not make it clear to the court or to the State and County that the addition of the State and County as defendants would be a pointless exercise unless the State and County affirmatively filed a cross-claim, the court nevertheless agrees with the NPS and SUWA that the County and State bear the burden of establishing that this court has jurisdiction over their "claims." Because waivers of sovereign immunity are strictly construed, and the requirements of the QTA have not been satisfied in this case, it would not be appropriate — although it is tempting — for this court to simply construe the State's and County's Answers as asserting cross-claims. This court cannot entertain claims or grant relief against the United States absent a clear waiver of sovereign immunity, and such a waiver has not been established in this case. Consequently, the court cannot entertain the motions for partial summary judgment filed by the State and County.
The court further agrees that the United States is an indispensable party pertaining to this claim, and thus, even if the court construed the Answers to assert counterclaims against SUWA, it would be a fruitless exercise.
However, while the NPS and SUWA have achieved their goal of convincing the court that it does not have jurisdiction to entertain the motions for partial summary judgment, they have also compelled the dismissal of the State and County as defendants in this action because the State and County have been precluded from defending themselves in this lawsuit, as their only defense in this case is to seek an affirmative determination that they own a valid and perfected right-of-way. The court will not order the State or County — against their wishes — to file suit against the United States, and the NPS has declined, for whatever reason, to file its own cross-claim against these entities. Because of the legal quagmire created by these unique circumstances and the fact that the State and County have been precluded from defending themselves, the court will not grant any relief against these defendants in this action. Thus, there is no reason for the State and County to be named as defendants in this action. This court never would have granted leave to amend SUWA's complaint to add these defendants had the NPS and SUWA made clear to the court that the State and County would be required — against their wishes — to sue the NPS as a prerequisite to defending themselves. Thus, the only just result is to dismiss the State and County from this action.
III. CONCLUSION
For the foregoing reasons and good cause appearing, IT IS HEREBY ORDERED that the NPS' and SUWA's requests that the court determine whether the State and County's motions for partial summary judgment are properly before the court are GRANTED. The court finds that it does not have jurisdiction to grant partial judgment in favor of the State and County, and thus, their motions for partial summary judgment [docket ## 202 and 211] are DENIED. In addition, because the State and County have been precluded from defending themselves in this action, they are hereby DISMISSED.