                  This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                 2017 UT 16


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

STICHTING MAYFLOWER MOUNTAIN FONDS and STICHTING MAYFLOWER
                     RECREATION FONDS,
                         Appellants,
                                       v.
 UNITED PARK CITY MINES COMPANY, REDUS PARK CITY LLC, EMPIRE
     PASS MASTER OWNERS ASSOCIATION, INC., and RED CLOUD
                   HOMEOWNERS ASSOCIATION,
                          Appellees.

                              No. 20150047
                          Filed March 22, 2017

                              On Direct Appeal

                    Third District, Silver Summit
                   The Honorable Ryan M. Harris
                           No. 050500430

                                 Attorneys:
       Craig C. Coburn, Steven H. Bergman, Brad M. Liddell,
                   Salt Lake City, for appellants
  Clark K. Taylor, Nicole M. Deforge, Salt Lake City, for appellees

 ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
 which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE HIMONAS,
                    and JUSTICE PEARCE joined.


   ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
    ¶1 This case involves a dispute over a mining road built on
Flagstaff Mountain (near Park City) over a century ago. The
plaintiffs are Stichting Mayflower Mountain Fonds and Stichting
Mayflower Recreation Fonds (collectively “Mayflower”). Defendants
in the suit are owners of land traversed by the road.
   ¶2 Plaintiffs have asserted a right to use the road (1) as a public
highway under the Mining Act of 1866 (R.S. 2477) and the 1880 Utah
             STICHTING MAYFLOWER v. UNITED PARK CITY
                        Opinion of the Court
Highway Act, and (2) under a common law prescriptive easement
claim. In a motion to amend their complaint, plaintiffs also sought to
add an appurtenant easement claim.
   ¶3 The district court dismissed Mayflower’s public roads and
prescriptive easement claims on summary judgment. It also denied
Mayflower’s motion for leave to file a second amended complaint.
We affirm.
    ¶4 Mayflower’s public roads claim fails because Mayflower has
not presented sufficient evidence of the road’s “public use” for a
sufficient period of time. The common law prescriptive easement
claim also fails because the evidence and arguments presented by
Mayflower on appeal were not preserved in the district court below.
Finally, as to the denial of Mayflower’s motion for leave to file a
second amended complaint, we affirm in light of the substantial
discretion afforded district courts under rule 15(a) of our Rules of
Civil Procedure.
                                   I
    ¶5 Mayflower is the successor to a chain of title to mining claims
dating from 1871 on Flagstaff Mountain near Park City. According to
Mayflower, historical records from the predecessor of the Bureau of
Land Management show that prospectors and mine claimants built
two miles of road from Park City to the mine in or around 1871.
These claimants were granted a mining patent, and thus ownership
to the mine and rights of access to their claims.
      ¶6 Notes kept by prospectors from nearby mines refer to a
wagon road heading south from Park City to the mines. The
historical record does not tell us who built the road. But it seems a
fair inference that the road was built by the Flagstaff mine claimants;
the record identifies no one else who likely would have constructed
it. 1
   ¶7 Mayflower seeks to trace the “public use” of the road in
question to 1871. It notes that prospectors began using the road to
access Flagstaff Mountain at that time. And it claims that public use
continued uninterrupted until 2006, when a new subdivision (Red


   1 The parties disagree on the precise location of the mining road
in the 1870s and 1880s. They also have different views on whether
the road now at issue is the same as the one referred to in the
historical record. But those disputes are immaterial in light of our
disposition of the case.

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                         Opinion of the Court
Cloud) “obliterated” parts of the road. This use, in Mayflower’s
view, turned the road into a public highway, conferring rights on
Mayflower (and the public generally) to use it.
    ¶8 Mayflower asserted such rights in this litigation. It filed its
initial complaint in late 2005. That complaint formally appears to
have raised only a common law prescriptive easement claim (though
Mayflower insists that other claims were asserted implicitly).
    ¶9 The case languished for a time. After the parties filed their
initial pleadings, there was no activity on the case for about a year
and a half. This led the district court to order the parties to appear
and explain why the case should not be dismissed. But the district
court did not dismiss the case. Instead it noted that it anticipated a
request for a hearing on a motion for preliminary injunction would
be filed within sixty days. And it allowed the case to move forward
on the basis of that expectation.
    ¶10 For the next two years the only activity in the case was a
single deposition. In June 2009, the district court again ordered the
parties “to show cause why this case should not be dismissed.” Order
to Show Cause, June 25, 2009. And again the case was not dismissed.
Instead it was consolidated with a similar pending suit—a suit
brought by Silver Cloud Properties seeking an easement over a
roadway that crossed property owned by United Park City and that
connected Silver Cloud’s property with the highway.
   ¶11 A little over a year later Mayflower moved to amend its
complaint, seeking to clarify “that plaintiff’s rights include the right
of use of public roads which extend to roads in which plaintiff’s
rights may be prescriptive.” Memorandum in Support of Motion to
Amend, December 22, 2010 at 2. The district court granted
Mayflower’s motion. In the amended complaint Mayflower
“claim[ed] a right to a prescriptive easement over and across the
Easement Property on the Easement Roads, and as a beneficiary of
the public rights-of-way.” Amended Complaint, December 22, 2010 at 4.
    ¶12 The defendants filed a motion for partial judgment on the
pleadings, asserting that Mayflower had “failed to state a claim that
any property at issue is a dedicated public road.” Motion for Partial
Judgment on the Pleadings, December 22, 2011 at 2. The district court
denied the motion. But the court sua sponte ordered Mayflower to
“make full and complete disclosures of their claims and evidence in
this case.” Order Denying Motion for Partial Judgment, March 8, 2012 at
2. And the court warned that failure to do so “shall result in
[Mayflower] being unable to use the individual, document, or
evidence in further proceedings.” Id. This was because the district
court found Mayflower’s claims to be “somewhat cryptic in nature,”

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                         Opinion of the Court
and thus “d[id] not put [defendants] on adequate notice regarding
what [was] claimed.” Id. The March 2012 district court order also
required Mayflower to “provide the specific statute or case law they
allege supports their claim to a public or private road,” with failure
to do so “result[ing] in [Mayflower] being unable to proceed with
their claim.” Id. at 3.
   ¶13 Mayflower’s disclosures included at least a common-law
prescriptive easement claim and a public road claim under a
longstanding federal statute (the federal Mining Act of 1866, or more
commonly, R.S. 2477). 2 The parties disagree on whether the claims


   2 Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43
U.S.C. § 932, repealed by Federal Land Policy Management Act of
1976 (FLPMA), Pub. L. No. 94–579 § 706(a), 90 Stat. 2743. R.S. 2477
was enacted one year after the Civil War ended. It was designed to
“promote[] the development of the unreserved public lands and
their passage into private productive hands.” S. Utah Wilderness All.
v. Bureau of Land Mgmt. (SUWA), 425 F.3d 735, 740 (10th Cir. 2005), as
amended on denial of reh’g (Jan. 6, 2006). Thus, “R.S. 2477 rights of way
were an integral part of the congressional pro-development lands
policy.” Id. at 740–41.
   The statute was repealed in 1976, through enactment of the
Federal Land Policy Management Act of 1976 (FLPMA). Pub. L. No.
94–579 § 706(a), 90 Stat. 2743. Yet FLPMA still preserved a party’s
ability to seek recognition of an R.S. 2477 road going forward—so
long as it was based on activity taking place prior to FLPMA’s
enactment (on October 21, 1976). Pub. L. No. 94–579 § 701(a), 90 Stat.
2743, 2786 (“Nothing in this Act, or in any amendment made by this
Act, shall be construed as terminating any valid . . . right-of-way . . .
existing on the date of approval of this Act.”); see also SUWA, 425
F.3d at 741 (describing FLPMA as having “the effect of ‘freezing’ R.S.
2477 rights as they were in 1976”). Thus, FLPMA preserved the
viability of R.S. 2477 looking backward. It recognized that a public
road could be established based on activity that took place while R.S.
2477 was still on the books. Pub. L. No. 94–579 § 509(a), 90 Stat. 2743,
2781 (“Nothing in this title shall have the effect of terminating any
right-of-way or right-of-use heretofore issued, granted, or
permitted.”). The premise of this regime is the idea that R.S. 2477
rights are established without formal legal action (like a court filing
and order). See infra ¶ 26 & n.3. Because an R.S. 2477 road could be
established without such action, FLPMA allows a claimant to prove
that such a road was established based on activity before the date of
                                                         (continued . . .)
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                        Opinion of the Court
extend further. Mayflower contends that it also included claims for
an appurtenant easement and for private right of access.
   ¶14 Defendants filed a motion for summary judgment, asserting
that (1) Mayflower cannot prove as a matter of law that the roads
crossing defendants’ land were established as public roads; and (2)
Mayflower cannot prove the requirement of adverse use, which is
necessary for a prescriptive easement claim. The district court ruled
on that motion in an order issued in August 2012. In that order, the
court granted the motion as to the prescriptive easement claim but
denied it on the public road claim. (Nowhere in the district court’s
order, or in either party’s summary judgment briefing, is there any
discussion of any other claims.)
    ¶15 After the entry of this order, additional defendants were
allowed to intervene, Mayflower’s counsel withdrew and was
replaced, and the district court re-opened discovery for all parties.
During that discovery, in early 2014, a defense expert asserted (in a
deposition) that Mayflower’s two easement claims, including the
appurtenant easement claim, were no longer part of the case due to
the district court’s August 2012 order. In response, Mayflower filed a
motion for leave to file a second amended complaint. And in the
memorandum in support of the motion Mayflower argued that the
complaint would not put forth new theories or claims, but merely
clarify those already proffered.
    ¶16 The district court denied Mayflower’s motion on two
independent grounds. First, it concluded that the amendment was
not appropriate under the standard set forth in Utah Rule of Civil
Procedure 15(a) because Mayflower had waited so long to add these
claims and lacked a good explanation for the delay. Second, the
court held that two new claims—appurtenant easement and private
right of access—were barred by the court’s earlier (March 2012)
order because Mayflower had not identified these claims in its
pretrial disclosures required by that order.


the R.S. 2477 repeal. Pub. L. No. 94–579 § 509(a), 90 Stat. 2743, 2781
(allowing a right-of-way to continue after FLPMA if it had been
previously “granted”); see also Bret C. Birdsong, Road Rage and R.S.
2477: Judicial and Administrative Responsibility for Resolving Road
Claims on Public Lands, 56 HASTINGS L.J. 523, 531 (2005) (noting that
“[c]ourts and federal agencies have long considered R.S. 2477 to be a
self-effectuating grant,” and thus public roads “arise by operation of
law at the time the factual conditions of the R.S. 2477 grant are
satisfied”).


                                  5
            STICHTING MAYFLOWER v. UNITED PARK CITY
                        Opinion of the Court
   ¶17 Both Mayflower and the defendants filed motions for
summary judgment on the last remaining claim—the one relating to
public roads. The district court denied Mayflower’s motion and
granted defendants’ motion.
   ¶18 Mayflower filed this appeal. It challenges the dismissal of its
prescriptive easement and public roads claims on summary
judgment and the denial of its motion to file a second amended
complaint.
   ¶19 Mayflower has also challenged the standing of one of the
defendants—United Park City Mines Company—to defend the
district court’s judgment on this appeal. Mayflower notes that
United Park City sold some of the property in question while this
case was pending on appeal. It claims that this transaction divested
Mayflower of any remaining interest in the roads that are the subject
of this appeal. And because the roads allegedly traverse property
now owned not by United Park City but by REDUS Park City LLC
(REDUS), Mayflower asserts that United Park City no longer has
standing to participate further in this appeal. It also has raised the
question whether REDUS should be substituted for United Park City
under Utah Rule of Appellate Procedure 38(c).
   ¶20 We entered an order directing the substitution of REDUS for
United Park City in part—“to the extent REDUS now owns property
previously held by [United Park City].” Order, April 1, 2016. In
addition, we asked REDUS to clarify whether it intended to be
represented by counsel for United Park City and to adopt the briefs
submitted by United Park City. REDUS subsequently indicated an
intent to step into United Park City’s shoes “with respect to the
properties” sold by United Park City to REDUS. Motion, April 5,
2016. And counsel made an appearance and argued for both
appellees.
   ¶21 The above moots the standing issue raised by Mayflower.
Because REDUS adopted United Park City’s briefing in this case, and
because the same counsel appeared and represented the interests of
both appellees at oral argument, we see no need to sort through the
record to determine whether or to what extent the property still
owned by United Park City is implicated by this appeal. Both
REDUS and United Park City are represented by the same counsel
and advance the same arguments on this appeal. So we need not
decide whether and to what extent one or the other of these
appellees may have standing to defend the judgment before us on
appeal because all of the relevant property is owned by one or the
other of the two and both appellees advance the same arguments on
appeal.
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                         Opinion of the Court
    ¶22 We accordingly proceed to the merits. In so doing we review
the decision on summary judgment de novo. See Bahr v. Imus, 2011 UT
19, ¶ 16, 250 P.3d 56. As to the decision denying the motion to file a
second amended complaint, our review is for an abuse of discretion.
See Fishbaugh v. Utah Power & Light, 969 P.2d 403, 405 (Utah 1998).
                                   II
   ¶23 Mayflower challenges the dismissal of its public roads and
prescriptive easement claims on various grounds. It challenges the
district court’s dismissal of these claims on summary judgment on
the basis of a range of alleged legal errors and genuine issues of
material fact. It also claims error regarding the decision denying the
motion for leave to amend.
    ¶24 We affirm. First, we conclude that the public roads claim fails
as a matter of law because Mayflower does not and cannot come
forward with evidence establishing that the road was in public use
for the time period required by law. Second, we affirm the dismissal
of the prescriptive easement claim on preservation grounds—
concluding that the grounds for challenging summary judgment on
appeal were not properly presented to the district court below.
Third, we affirm the denial of the motion for leave to amend as
falling within the district court’s range of discretion.
                               A. R.S. 2477
    ¶25 Mayflower’s public roads claim arises under the Mining Act
of 1866, often referred to as R.S. 2477. That act opened up “mineral
lands [in] the public domain” to be freely “explor[ed] and
occup[ied]” by any U.S. citizen, or those who have “declared their
intention to become citizens.” R.S. 2477, § 1. To that end, it granted
the “right of way for construction of highways over public lands.” Id.
§ 8.
    ¶26 R.S. 2477 is no longer on the books. It was repealed in 1976
by the Federal Land Policy Management Act (FLPMA). Pub. L. No.
94–579 § 706(a), 90 Stat. 2743. Yet R.S. 2477 still rules us from its
grave. It does so, as noted above, in light of the nature of the
establishment of an R.S. 2477 right. See supra ¶ 13 n.2. Such a right
attaches automatically on the basis of activity sufficient to establish a
public road. No formal adjudication, deed, application, or license is
required. 3 Thus, an R.S. 2477 right may be recognized even today. If


   3 See S. Utah Wilderness All. v. Bureau of Land Mgmt. (SUWA), 425
F.3d 735, 741 (10th Cir. 2005) (“Unlike any other federal land statute
of which we are aware, the establishment of R.S. 2477 rights of way
                                                      (continued . . .)
                                   7
             STICHTING MAYFLOWER v. UNITED PARK CITY
                         Opinion of the Court
a plaintiff can show the existence of a public road based on activity
prior to October 21, 1976 (the date of FLPMA’s enactment), then a
court may recognize the existence of a road under R.S. 2477. 4
    ¶27 The terms and conditions for establishing a public highway
are largely “‘borrow[ed]’ from long-established principles of state
law.” SUWA, 425 F.3d at 768. Thus, R.S. 2477 does not prescribe a
specific time period in which a road must be subject to public use in
order to become a public highway as a matter of federal law. Instead,
the requisite “public use” time period is dictated by state law, such
that the time necessary to establish an R.S. 2477 public highway may
differ from state to state, and may vary within a state as state law is
amended from time to time. 5

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.”); Sierra Club v. Hodel, 848 F.2d 1068, 1083 (10th Cir.
1988) (describing R.S. 2477 as “an open-ended and self-executing
grant” (overruled on other grounds by Vill. Of Los Ranchos de
Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992)); Lindsay Land &
Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646, 648 (Utah 1929)
(observing that “[R.S. 2477] was a standing offer of a free right of
way over the public domain,” and could be accepted “without
formal action by public authorities” (citations omitted)).
   4  See, e.g., U.S. DEP’T OF INTERIOR, REPORT TO CONGRESS ON R.S.
2477: THE HISTORY AND MANAGEMENT OF R.S. 2477 RIGHTS-OF-WAY
CLAIMS ON FEDERAL AND OTHER LANDS 29 (1993) (indicating that in
1993, nearly 1,500 R.S. 2477 claims had been recognized by courts or
the Department, with another 5,600 claims remaining to be
adjudicated, and an unknown number of potential claims that had
yet to be asserted); Matthew L. Squires, Note, Federal Regulation of
R.S. 2477 Rights-of-Way, 63 N.Y.U. ANN. SURV. AM. L. 547, 557 (2008)
(“R.S. 2477 rights-of-way that perfected prior to FLPMA’s enactment
are ‘grandfathered in’ and continue to be valid public easements,
and the countless roads and trails crossing federal land that existed
prior to 1976 are fair game to be claimed by states and counties as
R.S. 2477 rights-of-way.”).
   5 “In some states, the required period was the same as that for
easements by prescription, in some states it was some other specified
period, often five to ten years, and in some states it was simply a
period long enough to indicate intention to accept.”SUWA, 425 F.3d
at 771 (footnotes omitted).

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                         Opinion of the Court
      ¶28 The latter point is front and center here. The period of public
use necessary to establish a public highway has been amended over
time under Utah law. Before 1880, the matter was governed by the
law of prescriptive easement. In this era, in other words, the only
way to establish that a road had been subject to public use for long
enough that it became a public highway was to establish the
elements of a common law prescriptive easement. See Harkness v.
Woodmansee, 26 P. 291, 292 (Utah 1891) (“The right to a public road
. . . by prescription arises from the uninterrupted adverse enjoyment
of it under a claim of right known to the owner for the requisite
length of time.”). 6 And such a claim required proof that a particular
road was adversely and continuously used by the public for twenty
years. Id.
    ¶29 The legal landscape in Utah was altered by the 1880
Highway Act. That statute, enacted in February 1880, provided that
“all roads used as [highways] for a period of five years are highways.”
1880 UTAH LAWS 51, Chapt. 29 (emphasis added). So for uses from
February 1880 going forward, a claimant could establish the
existence of a public highway on the basis of public use for five
years. But the common law governed for uses before the enactment
of the Highway Act, and public use for twenty years was the rule
under the common law.
    ¶30 These time frames are crucial in this case. It is undisputed
that a portion of the land traversed by the subject road became
private property on October 13, 1881. That is the date the patent was
issued on the so-called Home Station mining claim. Thus, no use
beyond that date could be a public use that would count toward the
establishment of a public highway. The full period of public use
would have to have been completed before October 13, 1881.




   6 See also SUWA, 425 F.3d at 769–70 (observing that “[u]nder the
common law, the establishment of a public right of way required
two steps: the landowner’s objectively manifested intent to dedicate
property to the public use as a right of way, and acceptance by the
public”; and thus concluding that the only “difficult question” in
determining whether a public road had been created “was whether
any particular disputed route had been ‘accepted’ by the public
before the land had been transferred to private ownership or
otherwise reserved” since “R.S. 2477 was uniformly interpreted by
the courts as an express dedication of the right of way by the
landowner, the United States Congress”).


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             STICHTING MAYFLOWER v. UNITED PARK CITY
                         Opinion of the Court
   ¶31 We find no genuine issue of material fact on this question.
Specifically, we conclude that Mayflower has not identified evidence
sufficient to show that either the twenty-year common law period or
the five-year statutory period was fulfilled prior to October 13, 1881.
   ¶32 The earliest date of any public use identified by Mayflower is
1871—when the road in question allegedly was first built. 7 But at
that time the applicable time frame was that set forth in the common
law—twenty years. And clearly the twenty-year clock never expired.
As of October 1881 about half of the relevant time was still left on the
clock.
   ¶33 Mayflower insists that the shorter statutory time frame
should apply. And because it views the record as establishing more
than five years of public use before October 1881, Mayflower claims
that the road had become a public highway before the attempt at
privatizing it in connection with the Home Station mining claim.
    ¶34 We assume, at least for the sake of argument, that the 1880
Highway Act applies in the circumstances of this case. But we
nonetheless reject Mayflower’s claim. We do so because we interpret
the 1880 statute as applying only prospectively—or in other words
as not altering the applicable twenty-year time frame in place prior
to the statutory enactment. Nothing on the face of the statute, after
all, suggests retroactive application. And the longstanding
presumption is that statutes apply only prospectively. See Warne v.
Warne, 2012 UT 13, ¶ 25, 275 P.3d 238 (noting that “we generally
presume that a statute applies only prospectively”); Landgraf v. USI
Film Prods., 511 U.S. 244, 265 (1994) (observing that “the presumption
against retroactive legislation is deeply rooted in our jurisprudence,
and embodies a legal doctrine centuries older than our Republic”).
    ¶35 Mayflower’s claim fails on that basis. Before February 1880
the only relevant time frame was a twenty-year common law clock.
That clock had not run out as of the date of enactment of the 1880
Highway Act. By 1880, in fact, the record of public use had extended
for only about nine years. A second potential time frame was added
with the enactment of the statute. This allowed Mayflower to satisfy
either the common law or the statutory time period—whichever it
could fulfill first. But because the statute had no retroactive


   7There is a dispute between the parties on the year of the road’s
construction. We give the benefit of the doubt on this point to
Mayflower because we conclude that its claim fails as a matter of law
even assuming that the road was completed as early as 1871.

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                        Opinion of the Court
application, the five-year clock that it imposed did not begin to run
until February 1880 (when the statute was signed into law). And
clearly the five-year clock did not expire before October 1881. When
the patent on the Home Station mining claim was issued, the
statutory clock on public use had been running for less than two
years. And the common-law clock had been running for merely a
decade—half of the required time.
   ¶36 We affirm summary judgment for defendants on that basis.
We conclude that Mayflower failed to establish a genuine issue of
material fact on the public use necessary to show that the road in
question had become a public road under R.S. 2477. 8 And we
accordingly hold that the public roads claim fails as a matter of law.
                       B. Prescriptive Easement
    ¶37 Mayflower’s second claim arises under the common law.
Under this count, Mayflower asserts that it has rights to use the road
in question under the common law of prescriptive easement.
    ¶38 Mayflower unquestionably asserted a prescriptive easement
claim in its pleadings below. Yet defendants defend the dismissal of
this claim on the ground that the evidence and authority advanced
by Mayflower on appeal was never presented to the district court in
the proceedings below.
   ¶39 We agree and affirm on that basis. The principal question
presented on this claim is whether Mayflower had permission to
access the road in question. Defendants sought dismissal of the
prescriptive easement claim on the ground that evidence of
Mayflower’s permission to use the road undermined the element of
adverse use necessary to establish a prescriptive easement.


   8  In basing our decision on this ground, we stop short of
addressing several grounds embraced by the district court and
briefed by the parties on appeal. Those grounds include the
requirement of proof of public use by “clear and convincing”
evidence, the determination that “prospectors” were not relevant
members of the “public” whose use counted toward establishing a
public highway, and the conclusion that a single purpose road could
not qualify as a public use. These are important questions, but we
need not, and thus do not, resolve them here. Thus, we conclude that
Mayflower’s claim fails as a matter of law even if it prevails on each
of the grounds we do not reach—on the standard of proof, on
whether prospectors count as relevant members of the public, and
on whether a single purpose qualifies as public use.


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             STICHTING MAYFLOWER v. UNITED PARK CITY
                         Opinion of the Court
    ¶40 In response, Mayflower generally opposed summary
judgment on the prescriptive easement claim. And it cited some
authority of relevance to the element of adverse use. See Heber City
Corp. v. Simpson, 942 P.2d 307, 311 (Utah 1997); Morris v. Blunt, 161 P.
1127, 1131 (Utah 1916). But there was no legal analysis in
Mayflower’s opposition to the motion for summary judgment—no
application of the governing law to the facts of the case. Mayflower
cited no evidence and made no attempt to argue that the evidence
presented by defendants established adverse use or undermined the
inference of consent.
    ¶41 On appeal, by contrast, Mayflower presented extensive
evidence and legal argument challenging defendants’ showing as to
Mayflower’s permission. Yet virtually none of the evidence or
authority presented on appeal was advanced by Mayflower in the
district court. That is significant. Under rule 56 of the Utah Rules of
Civil Procedure, Mayflower was required to identify evidence in the
district court record that created a dispute of material fact. 9 Yet it
failed to do so. Instead of identifying facts that created a genuine
dispute of fact, Mayflower proffered only abstract statements of its
position. It simply asserted the following:
   [Defendants] assert[] that Mayflower’s use of the roads in
   issue was not “adverse” because, long after a public or private
   road would have been established, [defendants] made no
   substantial effort to block such use.
   The gist of “adversity” is that the use was maintained under
   claim of right. Failure to block the use is not consent.
   Certainly, where the use is previously established by the
   public, or by prior private owners, failure to block the use is
   irrelevant.




   9The 2013 version of Utah Rule of Civil Procedure 56(e) states
   “[w]hen a motion for summary judgment is made and
   supported as provided in this rule, an adverse party may not
   rest upon the mere allegations or denials of the pleadings, but
   the response . . . must set forth specific facts showing that
   there is a genuine issue for trial. Summary judgment, if
   appropriate, shall be entered against a party failing to file such
   a response.”

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                         Opinion of the Court
Stichting Mayflower’s Response to UPCM’s Motion for Summary
Judgment, May 23, 2012 at 4. 10
    ¶42 Mayflower concedes that it failed to argue much of the
evidence presented on appeal in its briefing in the district court. But
it seeks to excuse that failure by noting that much of the evidence
was attached to its memorandum in opposition to defendants’
motion for summary judgment. Yet that is insufficient. To comply
with the requirements of rule 56, Mayflower had to do more than
attach evidence and hope the district judge would appreciate its
significance. 11 Mayflower had the burden of “set[ting] forth specific
facts showing that there is a genuine issue for trial.” UTAH R. CIV. P.
56(e) (2013) (emphasis added). And to do that Mayflower had to do
more than just attach evidence; it had to analyze the evidence to show
that it created a genuine issue for trial.
   ¶43 The district court had no duty to look beyond Mayflower’s
bald statements to identify supporting evidence buried somewhere
in the record. 12 And the district court cannot be faulted for not



   10   The block-quoted material represents the entirety of
Mayflower’s analysis of the prescriptive easement claim in the
district court.
   11 See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (“When
evidence exists in the summary judgment record but the nonmovant
fails even to refer to it in the response to the motion for summary
judgment, that evidence is not properly before the district court.”);
Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001)
(adopting “the majority view that the district court may limit its
review to the documents submitted for the purposes of summary
judgment and those parts of the record specifically referenced
therein”); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671–72 & n.1
(10th Cir. 1998) (“[W]here the burden to present such specific facts
by reference to exhibits and the existing record was not adequately
met below, we will not reverse a district court for failing to uncover
them itself.”).
   12 See L.S. Heath & Son, Inc. v. AT & T Info. Sys., Inc., 9 F.3d 561,
567 (7th Cir. 1993) (“[A] district court need not scour the record to
determine whether there exists a genuine issue of fact to preclude
summary judgment. Instead, the court can rely upon the non-
moving party to show such a dispute if one exists.”); Guarino v.
Brookfield Twp. Trs., 980 F.2d 399, 404 (6th Cir. 1992) (“[T]here is no
duty imposed upon the trial court to ‘search the entire record to
                                                        (continued . . .)
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             STICHTING MAYFLOWER v. UNITED PARK CITY
                          Opinion of the Court
considering analysis that was not properly presented to it under rule
56. It would be unfair to the appellees (and to the district court) to
overturn a decision on summary judgment on the basis of analysis
presented for the first time on appeal. We refuse to do so. And we
affirm on the ground that the district court properly granted
summary judgment based on the record and arguments presented
by the parties below.
                      C. Motion for Leave to Amend
   ¶44 Mayflower’s final claim arises under the law of appurtenant
easement. 13 This claim was advanced by Mayflower in a proposed
second amended complaint. Mayflower sought leave to file this
second amended complaint in a motion under rule 15(a). The district
court denied the motion (1) under the standard set forth in rule 15(a),
and (2) as foreclosed by Mayflower’s failure to advance the claim in
response to its March 2012 order. We affirm.
                               1. Rule 15(a)
    ¶45 “A party may amend his pleading once as a matter of course
at any time before a responsive pleading is served or, if the pleading
is one to which no responsive pleading is permitted and the action
has not been placed upon the trial calendar, he may so amend it at
any time within 20 days after it is served.” UTAH R. CIV. P. 15(a)
(2013). “Otherwise a party may amend his pleading only by leave of
court or by written consent of the adverse party; and leave shall be
freely given when justice so requires.” Id.
   ¶46 This latter clause is applicable here. Mayflower’s amendment
required leave of court. And leave is to be “freely given when justice
so requires.” Id. That standard gives little guidance. More than
anything, it underscores the breadth of discretion given to district
judges on the matter of amendment.




establish that it is bereft of a genuine issue of material fact.’” (citation
omitted)); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)
(“Judges are not like pigs, hunting for truffles buried in briefs.”).
   13 Mayflower also asserts that its “single claim for relief . . .
contained allegations that would support relief under . . . a private
right of access theory.” Appellants Brief at 11. But nowhere else in its
opening or reply briefs is this “private right of access” claim
mentioned. So we treat this silence as a waiver of Mayflower’s right
to challenge the dismissal of that claim on appeal.

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                         Opinion of the Court
    ¶47 That is not to say the judge’s discretion is unbridled. Our
cases have identified some considerations that judges should take
into account in deciding whether “justice” requires leave to amend.
In particular, we have identified grounds that “weigh against” a
decision to allow an amendment. See Daniels v. Gamma W.
Brachytherapy, LLC, 2009 UT 66, ¶ 58, 221 P.3d 256 (citation omitted).
Those grounds include a determination that the requested
amendment is “untimely, unjustified, [or] prejudicial.” Id.; see also
Foman v. Davis, 371 U.S. 178, 182 (1962) (applying the parallel federal
rule; explaining that leave should be “freely given” “[i]n the absence
of any apparent or declared reason—such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, futility
of amendment, etc.”).
    ¶48 Rule 15(a) yields substantial discretion to the district court.
The district judge is to decide whether the nonmoving party has
identified a ground or factor sufficient to defeat the presumption in
favor of amendment. See Daniels, 2009 UT 66, ¶ 58. There is no rigid
test. Even a single consideration or factor may be enough to justify
denial of a motion for leave to amend. Id.
    ¶49 Our review under this discretionary standard is deferential.
The question presented is not whether we would have granted leave
to amend. It is whether we find an abuse of discretion in the district
judge’s decision to deny the motion. See Fishbaugh v. Utah Power &
Light, 969 P.2d 403, 405 (Utah 1998).
    ¶50 We affirm under this standard. In denying the motion for
leave to amend, the district court noted that the case had been
pending for nine years when Mayflower sought to add additional
claims—claims it could have but failed to include in its earlier
pleadings. It also cited concerns regarding additional delay if the
case were extended further at this late date. These are classic grounds
for denying a motion under rule 15(a). 14 And we see no reason to
question the court’s reliance on these grounds.


   14See, e.g., Prince v. Bear River Mut. Ins. Co., 2002 UT 68, ¶ 49, 56
P.3d 524 (concluding “that a trial court does not abuse its discretion
when it denies a motion to amend a pleading that was filed after an
extensive delay without an adequate justification, after some issues
have been resolved, and when that pleading would add new parties
and claims, especially when the moving party” was aware of this
and could have added parties or claims earlier); R & R Energies v.
                                                         (continued . . .)
                                   15
             STICHTING MAYFLOWER v. UNITED PARK CITY
                         Opinion of the Court
    ¶51 Mayflower challenges the district court’s decision on the
ground that its appurtenant easement claim was implicitly
referenced in its first amended complaint. And because the elements
of this claim overlap substantially with the elements of its existing
claims, Mayflower insists that the amendment would not have
required additional discovery or caused appreciable delay in the
proceedings.
    ¶52 These arguments misapprehend the nature of our appellate
review under rule 15(a). This rule leaves a lot of discretion in the
hands of the district judge. The judge is charged with deciding
whether the movant had a good reason for not asserting the new
claims at an earlier stage of the proceedings, and whether the risk of
delay from an amendment is substantial. And the judge’s findings
are entitled to deference on appeal. We are in no position to disturb
them. Under the applicable standard of review, we owe deference to
the district court’s determination that Mayflower’s delay and the
impact on the timely resolution of the case were sufficient to defeat
the presumption in favor of amendment. 15 We affirm on that basis.
   ¶53 The district judge earlier allowed Mayflower to amend its
complaint five years into the litigation. He also twice declined to
dismiss the case despite two periods of inactivity of almost two years
each. Given his involvement in and experience with the case, the
district judge was in a better position than we are to know whether
Mayflower had a good reason for not asserting these new claims



Mother Earth Indus., Inc., 936 P.2d 1068, 1080 (Utah 1997)
(determining that “[t]he trial court was within its powers to deny
[petitioner’s] motion to add new parties and claims more than four
years after the case commenced”; noting that “[t]his is especially true
given the fact that [petitioner’s] complaint demonstrates that it knew
that all of the parties it sought to add were involved with each other
from the outset of the case and therefore that they could have been
joined in a timely manner”).
   15  See Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 18, 243 P.3d 1275
(“Because a district court is ‘best positioned to evaluate the motion to
amend in the context of the scope and duration of the lawsuit,’ we
will reverse denial of leave to amend only if the district court abused
its discretion.” (citation omitted)); Dupler v. Yates, 351 P.2d 624, 637
(Utah 1960) (noting that the decision whether to allow a party to
amend its complaint to add new theories or claims “rests in the
sound discretion of the trial court”).

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                         Opinion of the Court
earlier, and to assess the impact of an amendment on further delay in
the resolution of a case that had already languished for many years.
                       2. The March 2012 Order
    ¶54 A district judge is charged with managing the court’s docket.
That responsibility encompasses the task of assuring the “just,
speedy, and inexpensive determination of every action.” UTAH R.
CIV. P. 1. The district judge’s March 2012 order was aimed at
furthering that important goal. The order was a response to
defendants’ motion for partial judgment on the pleadings under
Mayflower’s first amended complaint. Defendants’ motion
construed the first amended complaint as asserting only a
prescriptive easement claim, while acknowledging that Mayflower
also purported to be asserting a public road claim. The district court
denied the motion. But it also found Mayflower’s amended
complaint to be “somewhat cryptic in nature,” such that it did “not
put [defendants] on adequate notice regarding what is claimed.”
With this in mind, the court ordered Mayflower to “make full and
complete disclosures of their claims and evidence” in a written
submission on or before March 14, 2012. Order Denying Motion for
Partial Summary Judgment on the Pleadings and Requiring Clarifying
Disclosures Under Rules 16 and 26, March 8, 2012 at 2–3. Thus, “[f]or
each roadway claimed,” the Mayflower plaintiffs were required to
“provide the specific statute or case law they allege supports their
claim to a public or private road.” Id. at 3. Third District Judge Kelly
also warned that “[f]ailure to provide such information by the date
set forth herein shall result in Mayflower being unable to proceed
with their claim.” Id.
    ¶55 This was an understandable directive given the prior twists,
turns, and delays in this litigation. Mayflower had been given other
opportunities to clarify its claims at earlier stages. And the case had
been languishing for quite some time, including months and even
years without any activity at all. So the judge’s March 2012 order
was appropriate and even commendable. And when Mayflower
failed to comply with it (by expressly indicating that it was asserting
an appurtenant easement in a written submission filed by February
10, 2014), the district court acted well within its discretion in refusing
to allow the addition of these claims.
   ¶56 Mayflower asserts that it did include an appurtenant
easement claim in its pleadings and response to the March 2012
order. It also challenges the propriety of the March 2012 order,
contending that the specificity and detail it required are nowhere
found in the rules of civil procedure.



                                   17
             STICHTING MAYFLOWER v. UNITED PARK CITY
                         Opinion of the Court
    ¶57 We see the matter differently. We affirm the district court’s
determination that Mayflower did not adequately identify an
appurtenant easement claim before the deadline specified by the
court. And we likewise uphold the district court’s prerogative to
issue an order like this one. Perhaps Mayflower is right that the
March 2012 order set forth pleading requirements that went beyond
the generally applicable terms of our rules of civil procedure. But the
order is appropriate and even laudable under the circumstances. Our
“[t]rial courts have broad discretion in managing the cases assigned
to their courts.” Maxfield v. Herbert, 2012 UT 44, ¶ 21 n.6, 284 P.3d 647
(citation omitted). And we can hardly criticize the court for requiring
specificity and finality in a case that had been pending for many
years without a clear outline of the claims presented for
adjudication.
  ¶58 We accordingly affirm the denial of the motion for leave to
amend under both rule 15(a) and under the terms of the court’s
March 2012 order.




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