                                                                  FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                            December 2, 2014
                                      PUBLISH              Elisabeth A. Shumaker
                                                               Clerk of Court
                     UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT

KANE COUNTY, UTAH, a Utah
political subdivision,

       Plaintiff - Appellant/Cross-
       Appellee,

and

THE STATE OF UTAH,

       Intervenor Plaintiff -
       Appellant/Cross-Appellee,

v.                                          Nos. 13-4108, 13-4109 & 13-4110

UNITED STATES OF AMERICA,

       Defendant - Appellee/Cross-
       Appellant.

-------------------------

SIERRA CLUB; GRAND CANYON
TRUST; NATIONAL PARKS
CONSERVATION ASSOCIATION;
SOUTHERN UTAH WILDERNESS
ALLIANCE; THE WILDERNESS
SOCIETY,

      Amici Curiae.

         APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF UTAH
                    (D.C. No. 2:08-CV-00315-CW)
Shawn T. Welch (Tamara L. Stevenson and Ryan R. Jibson of Holland & Hart,
L.L.P., on the briefs), Salt Lake City, Utah, for Plaintiff - Appellant - Cross-
Appellee.

David C. Shilton (Thomas K. Snodgrass and Romney S. Philpott of United States
Department of Justice, Env’t & Natural Resources Department; Robert G. Dreher
and Sam Hirsch, Acting Assistant Attorney Generals; James E. Karkut and Aaron
G. Moody, Of Counsel, U.S. Department of the Interior, Office of the Solicitor;
on the briefs), Washington, D.C., for Defendant - Appellee - Cross-Appellant.

Anthony L. Rampton, Harry H. Souvall, Bridget K. Romano, Assistant Attorneys
General, Sean D. Reyes, Utah Attorney General, Salt Lake City, Utah, for
Intervenor Plaintiff - Appellant - Cross-Appellee State of Utah.

Heidi J. McIntosh and Alison C. Flint of Earthjustice, Denver, Colorado, for
Amici Curiae Sierra Club.

Stephen H.M. Bloch, David T. Garbett and Joseph J. Bushyhead of Southern Utah
Wilderness Alliance, Salt Lake City, Utah; Matthew S. Hellman, Jerome L.
Epstein and Caroline M. DeCell of Jenner & Block, L.L.P., Washington, D.C., for
Amici Curiae Southern Utah Wilderness Alliance and The Wilderness Society.


Before KELLY, BACHARACH, and PHILLIPS, Circuit Judges.


KELLY, Circuit Judge.



      This case involves a dispute between Kane County, Utah (joined by the

State of Utah as intervenors) and the United States over the existence and breadth

of the County’s rights-of-way on federally owned land in Southern Utah. We

previously affirmed the denial of intervention to the Southern Utah Wilderness

Alliance, the Wilderness Society and the Sierra Club. Kane Cnty. v. United

States, 597 F.3d 1129 (10th Cir. 2010). On March 20, 2013, the district court

issued two final orders, see Kane Cnty. v. United States, 934 F. Supp. 2d 1344
(D. Utah 2013) [hereinafter Kane I]; Kane Cnty. v. United States, No.

2:08–cv–00315, 2013 WL 1180764 (D. Utah Mar. 20, 2013) [hereinafter Kane II],

both of which are challenged in this appeal and cross-appeal. Our jurisdiction

arises pursuant to 28 U.S.C. § 1291. We consider five issues involving the

application of the Quiet Title Act, 28 U.S.C. § 2409a, and Section 8 of the Mining

Act of 1866, more commonly known as “Revised Statute (R.S.) 2477.” We affirm

in part, reverse in part, and remand.



                                    Background

      In April of 2008, Kane County brought an action under the Quiet Title Act

(QTA), 28 U.S.C. § 2409a, to quiet title to five roads or road segments. It later

amended its complaint to cover a total of fifteen roads or road segments. The

QTA supplies a limited waiver of sovereign immunity for the settlement of

property claims against the United States.

      Kane County asserts rights-of-way over these roads pursuant to R.S. 2477,

which states that “the right of way for the construction of highways over public

lands, not reserved for public uses, is hereby granted.” An Act granting the Right

of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes,

ch. 262, § 8, 14 Stat. 251, 253 (1866) (codified at 43 U.S.C. § 932), repealed by

Federal Land Policy and Management Act of 1976 (FLPMA), Pub. L. No. 94-579,

§ 706(a), 90 Stat. 2743, 2793. R.S. 2477 was “a standing offer of a free right of

                                        -3-
way over the public domain.” San Juan Cnty. v. United States, 754 F.3d 787, 791

(10th Cir. 2014) (quoting S. Utah Wilderness Alliance (SUWA) v. Bureau of

Land Mgmt., 425 F.3d 735, 741 (10th Cir. 2005)). Though R.S. 2477 was

repealed in 1976 by the FLPMA, it preserved existing rights-of-way. 43 U.S.C.

1769(a).

      On February 26, 2010, the State of Utah filed a motion to intervene as co-

plaintiff and the motion was granted. In August 2011, the district court held a

nine-day bench trial that included the testimony of 26 witnesses and over 160

exhibits. On March 20, 2013, the district court issued two orders. In the first

order, the district court held it had subject matter jurisdiction under the QTA over

each of the fifteen roads at issue. See Kane I, 934 F. Supp. 2d 1344. In the

second order, the district court made findings of fact and addressed the merits of

Kane County and Utah’s claims, finding they had proven R.S. 2477 rights-of-way

on twelve of the fifteen roads at issue and setting proper widths for the rights-of-

way. See Kane II, 2013 WL 1180764. Both orders are challenged in this appeal.

      Plaintiffs-Appellants and Cross-Appellees Kane County and Utah challenge

two of the district court’s determinations. First, they argue the district court erred

in finding that Public Water Reserve 107 reserved from the operation of R.S.

2477 two parcels of lands crossed by Swallow Park/Park Wash Road (“Swallow

Park Road”). Second, they contend the district court erred in requiring that R.S.

2477 rights-of-way be proven against the United States by clear and convincing

                                         -4-
evidence.

      Defendant-Appellee and Cross-Appellant United States also raises two

issues. First, it contends the district court lacked jurisdiction over Kane County’s

claims regarding the Sand Dunes, Hancock and four Cave Lakes roads because of

the absence of a “disputed title to real property in which the United States claims

an interest,” 28 U.S.C. § 2409a(a), a prerequisite to federal court jurisdiction

under the QTA. Second, the United States contends the district court erred in

determining the widths of Plaintiffs’ rights-of-way on Swallow Park Road, North

Swag Road, and Skutumpah Road.

      Additionally, amici Southern Utah Wilderness Alliance (SUWA), the

Wilderness Society and the Sierra Club (collectively “amici”) contend the district

court lacked jurisdiction over Kane County’s R.S. 2477 claim to North Swag

Road because the QTA’s limitations period had already run. This issue pertains

to subject matter jurisdiction, a matter “essential to this court’s review,” which

we would address “without regard to whether the parties dispute its existence.”

Elliot Indus. Ltd. P’ship v. BP Am. Prod. Co., 407 F.3d 1091, 1104 (10th Cir.

2005). Accordingly, we address it alongside the jurisdictional arguments raised

by the United States.

      The issues before this court thus implicate nine roads: Sand Dunes Road,

Hancock Road, the four Cave Lakes roads (denominated as K1070, K1075, K1087

and K1088), Swallow Park Road, North Swag Road and a portion of Skutumpah

                                         -5-
Road. The facts regarding these roads are discussed as they are pertinent to each

issue.



                                        Discussion

A.       Quiet Title Act Jurisdiction

         The United States and amici contend the district court lacked subject matter

jurisdiction over certain of the QTA claims. The United States contends Kane

County brought claims to roads on which no “disputed title” existed and amici

contend Kane County brought claims to roads on which the QTA limitations

period had run. The district court rejected these arguments, and we review its

determinations de novo. See Rio Grande Silvery Minnow v. Bureau of

Reclamation, 599 F.3d 1165, 1175 (10th Cir. 2010).

         The United States cannot be sued absent a waiver of sovereign immunity.

See Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280

(1983). A waiver of sovereign immunity “cannot be implied but must be

unequivocally expressed.” United States v. King, 395 U.S. 1, 4 (1969). The QTA

provides such a waiver:

         The 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.

28 U.S.C. 2409a(a) (emphasis added). The QTA provides the “exclusive means

by which adverse claimants [can] challenge the United States’ title to real

                                           -6-
property.” Block, 461 U.S. at 286. District courts are granted jurisdiction over

§ 2409a suits under 28 U.S.C. § 1346(f).

      Thus, for a court to have jurisdiction over a QTA claim, the plaintiff must

establish that: (1) the United States “claims an interest” in the property at issue;

and (2) title to the property is “disputed.” See Leisnoi, Inc. v. United States

(Leisnoi II), 267 F.3d 1019, 1023 (9th Cir. 2001). 1 The district court found these

two elements satisfied as to each of the fifteen roads at issue. The United States

argues that the grounds on which the court found “disputed title” to Sand Dunes,

Hancock and the four Cave Lakes roads were insufficient under § 2409a(a).

      The issue of what is required to satisfy the QTA’s “disputed title”

requirement is one of first impression in this circuit. In interpreting § 2409a(a),

we begin with the established principle that waivers of sovereign immunity are to

be read narrowly and conditions on the waiver are to be “strictly observed.”

Block, 461 U.S. at 287; see also Mills v. United States, 742 F.3d 400, 405 (9th

Cir. 2014) (“In construing the scope of the QTA’s waiver, we have read narrowly

the requirement that the title at issue be ‘disputed.’”).


      1
          Though some courts appear to combine the two QTA elements into one,
see, e.g., Alaska v. United States, 201 F.3d 1154, 1160 (9th Cir. 2000) (analyzing
the issue as whether the United States “claim[ed] an interest”); Mills v. United
States, 742 F.3d 400, 405 (9th Cir. 2014) (relying on Alaska but analyzing the
issue simply as whether a “disputed title” exists), most courts appear to follow
Leisnoi II and analyze the elements separately, as did the district court. See, e.g.,
Mich. Prop. Ventures, LLC v. United States, No. 14–10215, 2014 WL 2895485, at
*4–6 (E.D. Mich. June 26, 2014).

                                         -7-
       The parties rely on a pair of Ninth Circuit cases analyzing the scope of

§ 2409a(a)’s waiver of sovereign immunity. In Alaska v. United States, Alaska’s

title to the Kandik, Nation and Black rivers depended upon whether the rivers

were navigable at the date Alaska obtained statehood. 201 F.3d 1154, 1156–57

(9th Cir. 2000). QTA jurisdiction thus hinged on whether the United States had

claimed an interest in the rivers by asserting they were not navigable at the time

of statehood. Before the district court, the United States refused to admit or deny

Alaska’s allegations that the rivers were navigable at statehood. Despite the

United States’ failure to formally claim an interest in the case at hand, the Ninth

Circuit found it had claimed an interest in the Kandik and Nation rivers. The

court relied upon the Unites States’ previous assertion before an administrative

law judge that the rivers were not navigable at statehood, explaining that this past

assertion created a “present cloud on the state’s title.” Id. The court expressed a

preference against allowing potential federal claims to “lurk over the shoulder of

state officials as they try to implement a coherent management plan” for the

state’s waterways. Id. at 1161. However, the court found no QTA jurisdiction

over the Black River because the United States never “expressly asserted a claim”

to it. Id. at 1164.

       Though Alaska dealt with whether the United States “claimed an interest”

in the rivers, other Ninth Circuit cases have applied this “cloud on title” standard

to the “disputed title” element of § 2409a(a). See Leisnoi II, 267 F.3d at 1024

                                         -8-
(holding the “disputed title” requirement of the QTA can be satisfied by a third-

party’s assertion of an interest of the United States that “clouds the plaintiff’s

title”); Leisnoi, Inc. v. United States (Leisnoi I), 170 F.3d 1188, 1192 (9th Cir.

1999). However, more recently in Mills, the Ninth Circuit did not reference the

“cloud on title” standard and emphasized that the “disputed title” requirement

must be “read narrowly.” 742 F.3d at 405. In Mills, a miner sought access to a

mine site over an R.S. 2477 right-of-way and brought suit under the QTA. Id. at

403–05. The court found no “disputed title” where land management agency

officials had previously denied the plaintiff’s petitions for a right-of-way on the

grounds that they lacked the legal authority to grant the petition. Id. at 405–06.

The court explained that the United States had not “expressly dispute[d]” the

plaintiff’s title, nor had it “taken an action that implicitly disputes” the title. Id.

      To the extent the Ninth Circuit still utilizes a “cloud on title” standard, we

would reject it as incompatible with the rule that conditions on a waiver of

sovereign immunity are to be specifically observed. See Block, 461 U.S. at 287.

The “cloud on title” standard provides little guidance to parties as to what

constitutes a title dispute and could lead federal courts to issue advisory opinions.

Instead, we hold that to satisfy the “disputed title” element of the QTA, a plaintiff

must show that the United States has either expressly disputed title or taken

action that implicitly disputes it.

      Under this standard, a plaintiff need not show the United States took direct

                                           -9-
action to close or deny access to a road—indirect action or assertions that actually

conflict with a plaintiff’s title will suffice. Nor is the United States shielded by

sovereign immunity where it previously disputed a plaintiff’s title but does not do

so presently. Cf. Alaska, 201 F.3d at 1162. Thus, concerns about potential

claims “lurk[ing] over the shoulder of state officials” are ameliorated. Id. at

1161. However, actions of the United States that merely produce some ambiguity

regarding a plaintiff’s title are insufficient to constitute “disputed title.” This

accords with both the purpose of the QTA—allowing parties to settle disputes

with the United States over land—and the principle that waivers of sovereign

immunity are construed narrowly.

      We now turn to each of the roads at issue in this appeal.

1.    Sand Dunes and Hancock Roads

      Sand Dunes Road is a 20-mile road running from the Utah-Arizona border

to Utah State Highway 89. Near Sand Dunes is Hancock Road, a paved, two-lane

road roughly ten miles in length. Both roads fall within the land administered by

the Kanab Field Office, a branch of the Bureau of Land Management (BLM).

      On October 31, 2008, the Kanab Field Office released the Kanab Field

Office Management Plan (“the Plan”). Kane I, 934 F. Supp. 2d at 1353. The Plan

provides guidance for the management of roughly 554,000 acres of land

administered by the BLM and was based on “a complete route inventory in 2005

and 2006.” Id. It specifies that “[n]atural and cultural resource protection is . . .

                                         - 10 -
accomplished by limiting motorized travel to the routes designated.” Id.

However, the Plan explicitly states it “does not affect valid existing rights” and

“does not adjudicate . . . or otherwise determine the validity of claimed rights-of-

way.” Id. (emphasis added).

      Map 9 of the Plan identifies areas that are open to cross-country, motorized

vehicle use, closed to such use, or open only on designated routes. Hancock and

Sand Dunes roads fall in an area where off-highway vehicle use is “Limited to

Designated Open Roads and Trails.” Id. Map 10 of the Plan shows which routes

in the designated area are open, closed, or limited for motor vehicle use.

Hancock and Sand Dunes roads are not identified in Map 10. On January 30,

2009, after Kane County filed its amended complaint to include these roads, BLM

published additional maps on its website identifying Hancock and Sand Dunes

roads as “Class 3 primary roads,” a term used to denote major thoroughfares. The

changes to the maps were not the product of a formal amendment process. Id.

      The district court found that the Plan’s omission of Hancock and Sand

Dunes roads from the initial maps had the practical effect of closing the roads.

Id. at 1357. Because the republished maps were not the product of a formal

amendment process, the court held that an “ambiguity” existed as to the legal

status of the roads, creating a “cloud on title” sufficient for jurisdiction under

§ 2409a(a). Id. at 1354, 1358. We disagree.

      The effect of the Plan’s omission of Sand Dunes and Hancock roads is at

                                         - 11 -
best ambiguous and insufficient to create a disputed title under § 2409a(a). The

Plan explicitly declared it did not adjudicate or affect rights-of-way. Further,

though the Plan marked certain roads as closed, Hancock and Sand Dunes were

not marked as closed; they simply were not marked at all. Though a provision of

the Plan suggested travel was limited to designated routes, the effect of this

provision is unclear, as the United States took no action to limit travel to such

routes. Regardless of whether the United States was entitled to clarify the

original maps with additional maps online, see id. at 1357–58, the original maps

did not amount to a disputed title. The district court was correct in concluding an

“ambiguity exist[ed] regarding the legal status of the roads,” id. at 1354;

however, this ambiguity is insufficient to constitute a “disputed title” under

§ 2409a(a).

      Kane County relies upon several other grounds for finding a “disputed title”

to the Sand Dunes, Hancock and four Cave Lakes roads that were not addressed

by the district court. Kane Reply Br. 9–17. The County does not explain how

any of these grounds create a “disputed title” to Sand Dunes, Hancock or the Cave

Lakes roads specifically, and so we find its argument without merit. Thus, we

reverse the district court and find it had no jurisdiction over the QTA claims to

Sand Dunes and Hancock roads.



2.    The Four Cave Lakes Roads

                                        - 12 -
      a.     The United States’ Answer

      The Cave Lakes roads (denominated as K1070, K1075, K1087 and K1088)

are four short roads in southwestern Kane County crossing BLM-administered

land. All four were designated as “open” under the Kanab Field Plan. Kane I,

934 F. Supp. 2d at 1354. Paragraph 29 of Kane County’s amended complaint

stated: “After 1866 and prior to the repeal of R.S. 2477 on October 21, 1976,

Kane County, by and on behalf of the public, accepted R.S. 2477 rights-of-way

for . . . the Cave Lakes roads.” JT App. 41. The United States’ answer as to this

paragraph stated: “The allegations . . . are legal conclusions to which no

responsive pleading is required. To the extent a responsive pleading is required,

the United States lacks sufficient information to form a belief as to the truth of

the allegations.” Id. at 113. Under Fed. R. Civ. P. 8(b)(5), this response is

treated as a denial. The district court found this denial of the allegations created

a “disputed title” sufficient for jurisdiction under the QTA. Kane I, 934 F. Supp.

2d at 1358. We disagree.

      The district court likened the United States’ answer to Alaska, where the

Ninth Circuit held that a past claim of interest before an administrative law judge

as to the Nation and Kandik Rivers amounted to a present “cloud” on the

plaintiff’s title. 201 F.3d at 1162. However, Alaska itself found no jurisdiction

over the QTA claim to the Black River where, as here, the United States refused

to admit or deny allegations of the river’s navigability at the pleading stage

                                        - 13 -
because the allegations “consist[ed] of conclusions of law not requiring an

answer.” Id. at 1163–65. Alaska thus suggests that a failure to admit allegations

cannot alone suffice to show a “disputed title” under § 2409a(a). Though a

disclaimer of title by the United States does operate to remove the jurisdiction of

the court under the QTA, see 28 U.S.C. § 2409a(e), a disclaimer is not necessary

for the United States to challenge jurisdiction under § 2409a(a). See Leisnoi I,

170 F.3d at 1192 (“Subsection (a) is the one that confers jurisdiction . . . .

Nothing in subsection (e) qualifies those requirements.”). Moreover, as a

practical matter, requiring the United States to either admit allegations or waive

sovereign immunity under § 2409a(a) would place a tremendous and unfair

burden upon it at the pleading stage. Thus, we conclude the United States’

answer is insufficient to constitute a “disputed title” under § 2409a(a).

      b.     The United States’ Grant of Title V Permits

      As to three of the Cave Lakes roads (K1070, K1075 and K1087), the

district court found that the BLM’s grant of Title V permits to private entities

provided an additional ground for “disputed title” under § 2409a(a). On July 25,

2008, the BLM issued Title V permits to a private entity to use these three roads.

Supp. App. 337–55. The Title V permits grant the right to “construct, operate,

maintain, and terminate an access road for the purpose of accessing private

property on public lands.” Id. at 337. The permits state that roads must be

“surfaced to specifications set by Kane County for a subdivision road and to Kane

                                         - 14 -
County standards for subdivision roads with a travel surface of 28 feet.” Id. at

338. The permits are “not intended to extinguish or limit any R.S. 2477 right-of-

way,” and if an R.S. 2477 right-of-way was found by a court or the Secretary of

the Interior, the permit “would be superseded thereby.” Id. The district court

held these permits “conflict[ed] with Kane County’s ability to manage its alleged

rights-of-way” and thus amounted to a dispute of title under 2409a(a). Kane I,

934 F. Supp. 2d at 1358. We disagree.

      Nothing about the grant of Title V permits to third parties expressly or

implicitly disputes Kane County’s right-of-way. “Easements and servient estates

can (and usually do) peaceably coexist.” George v. United States, 672 F.3d 942,

947 (10th Cir. 2012). Here, the permits require that the roads be maintained in

accordance with Kane County standards. Further, like the Kanab Field Plan, the

Title V permits state they do not affect R.S. 2477 rights-of-way; even more, they

explicitly state they are “superseded” by any R.S. 2477 rights-of-way. The

permits, if anything, seem a deliberate attempt not to dispute Kane County’s title.

      To be sure, “owners of the dominant and servient estates ‘must exercise

[their] rights so as not unreasonably to interfere with the other.’” S. Utah

Wilderness Alliance (SUWA) v. Bureau of Land Mgmt., 425 F.3d 735, 746 (10th

Cir. 2005) (quoting Big Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148,

158 (Utah 1946)). But, Kane County has produced no evidence as to how the

permits interfered with any development plans. Absent such evidence, we must

                                        - 15 -
conclude that the Title V permits do not create a “disputed title” under §

2409a(a).

      Thus, as to all four of the Cave Lakes Roads (K1070, K1075, K1087 and

K1088) we reverse the district court’s finding of jurisdiction under the QTA.

3.    North Swag Road – QTA Limitations Period

      Amici contend that the district court lacked jurisdiction over Plaintiffs’

R.S. 2477 claim to North Swag Road because the QTA’s limitations period had

already run. The district court found that the limitations periods had not run,

Kane I, 934 F. Supp. 2d at 1360–64, and the United States has not challenged this

finding on appeal. At an earlier stage of litigation, the United States in fact

conceded the QTA limitations period had not run. See Kane Cnty. v. United

States, No. 2:08–CV–00315, 2011 WL 2489819, at *7 (D. Utah June 21, 2011).

Nevertheless, the QTA’s limitations period is a jurisdictional bar, see Rio Grande

Silvery Minnow, 599 F.3d at 1175–76, and thus we address it.

      As discussed above, the QTA provides the exclusive means by which

claimants can challenge the United States’ title to real property. But, “what the

QTA gives it often proceeds to take away.” George, 672 F.3d at 944. The QTA

provides two limitations provisions, one for non-states and one for states. Section

2409a(g), applicable to non-states including counties, provides:

      Any civil action under this section, except for an action brought by a
      State, shall be barred unless it is commenced within twelve years of
      the date upon which it accrued. Such action shall be deemed to have

                                        - 16 -
      accrued on the date the plaintiff or his predecessor in interest knew
      or should have known of the claim of the United States.

28 U.S.C. § 2409a(g). Thus, the twelve-year limitations period for non-states is

triggered when a party knows or should know of a claim of the United States.

      As to states, the QTA provides that for land on which the United States has

made “substantial improvements” or has “conducted substantial activities

pursuant to a management plan,” actions are barred unless commenced “within

twelve years after the date the State received notice of the Federal claims to the

lands.” Id. § 2409a(i). “Notice” for states must be either by public

communications “sufficiently specific as to be reasonably calculated to put the

claimant on notice of the Federal claim to the lands” or “by the use, occupancy,

or improvement of the claimed lands which, in the circumstances, is open and

notorious.” Id. § 2409a(k)(1)–(2). Both the 2409a(g) and 2409a(i) standards are

relevant here, as amici argue the limitations periods ran on both Kane County and

Utah’s QTA claims.

     In interpreting the QTA’s limitations provisions, we begin again with the

familiar proposition that waivers of sovereign immunity are construed narrowly

and conditions upon the waiver strictly observed. Block, 461 U.S. at 287. This

court has held that the trigger for starting the QTA limitations period is an

“exceedingly light one.” George, 672 F.3d at 944. A “range war” is not required,

and plaintiffs cannot wait until the United States’ claims to title “crystallize into


                                         - 17 -
well-defined and open disagreements.” Id. at 946–47 (quoting Rio Grande

Silvery Minnow, 599 F.3d at 1188). Concrete action by the United States is not

required; “[a]ll that is necessary is a reasonable awareness that the Government

claims some interest adverse to the plaintiff’s.” Knapp v. United States, 636 F.2d

279, 283 (10th Cir. 1980). Thus, though “[k]nowledge of the claim’s full

contours” is unnecessary, id., the plaintiff must be on notice of an adverse interest

asserted by the government. George, 672 F.3d at 946.

      This court recently explained in San Juan County v. United States that in

order to trigger the QTA limitations period against a party claiming an R.S. 2477

right-of-way, the United States must claim “exclusive control” of a road. 754

F.3d 787, 793 (10th Cir. 2014); see also McFarland v. Norton, 425 F.3d 724, 727

(9th Cir. 2005) (requiring an exclusive claim to trigger the QTA limitations

period against a party claiming a right-of-way); Michel v. United States, 65 F.3d

130, 132 (9th Cir. 1995) (same). As a public right-of-way can generally

“peaceably coexist” with an underlying ownership interest, see George, 672 F.3d

at 947, the United States must provide a county or state with “sufficient notice of

the United States’ claim of a right to exclude the public.” San Juan Cnty., 754

F.3d at 794.

      Amici contend that two events triggered the QTA limitations periods: (1)

the BLM’s 1980 designation of the Paria-Hackberry Wilderness Study Area and

publication of this designation in the Federal Register; and (2) a 1991 meeting of

                                        - 18 -
the Kane County Commissioner with BLM representatives to discuss the

procedures necessary for obtaining recognition of R.S. 2477 rights-of-way. The

district court found these events insufficient to trigger the QTA limitations

period, and we review its determinations de novo. See Rio Grande Silvery

Minnow, 599 F.3d at 1175.

      a.     The 1980 Designation of the Paria-Hackberry WSA

      In 1976, as part of a “statutory sea change,” Congress passed the Federal

Land Policy and Management Act (FLPMA), initiating a “conservation and

preservation” approach to federal land management. SUWA, 425 F.3d at 741.

Pursuant to the FLPMA, the Secretary of the Interior was directed to conduct an

inventory of “those roadless areas of five thousand acres or more” to determine

which areas had wilderness characteristics as defined by the Wilderness Act. 43

U.S.C. § 1782(a). An area of wilderness was defined to mean “an area of

undeveloped Federal land retaining its primeval character and influence, without

permanent improvements or human habitation.” 16 U.S.C. § 1131(c).

      On November 14, 1980, the BLM published its Final Intensive Inventory

Decision for Utah in the Federal Register. See 45 Fed. Reg. 75,602 (Nov. 14,

1980). This inventory designated Paria-Hackberry, which encompassed North

Swag Road, as a Wilderness Study Area (WSA). Upon designation of land as a

WSA, the Secretary of the Interior is directed to manage such lands “in a manner

so as not to impair the suitability of such areas for preservation as wilderness”

                                        - 19 -
and to “take any action required to prevent unnecessary or undue degradation of

the lands and their resources.” 43 U.S.C. § 1782(c). This standard requires the

BLM to “ensure that an area’s existing wilderness values are not degraded” in a

manner that might threaten the WSA’s designation as protected wilderness.

Interim Management Policy and Guidelines for Land Under Wilderness Review

(IMP), 44 Fed. Reg. 72,014 (Dec. 12, 1979).

      Though the FLPMA applies to “roadless” areas, a “road” for purposes of

the Wilderness Act is not coterminous with a “road” under R.S. 2477. The same

year the BLM designated the Paria-Hackberry WSA, the BLM Director for Utah

issued a memorandum stating the following:

      The wilderness inventory process uses a definition of a road that is
      distinct from the definition of “public” road contemplated by R.S.
      2477 (43 USC 932) and is a definition for inventory purposes only,
      not for establishing rights of counties, etc. A determination that an
      area should not be excluded from wilderness review because the area
      does not have any “roads” as defined in the Bluebook is not a
      determination that a road is or is not a “public” road. This is a
      factual determination that does not relate to wilderness . . . .

Instruction Memorandum No. UT ‘80-240 (Mar. 6, 1980), JT App. 2300–01. A

subsequent nationwide BLM memorandum stated that where WSAs overlap with

R.S. 2477 rights-of-way, “the WSA/wilderness designation is subject to the terms

and conditions of the pre-existing R/W grant.” Instructional Memorandum No.

90-589 (Aug. 15, 1990), JT App. 2295; see also id. at 2296 (noting that R.S. 2477

rights-of-way “may in fact exist within a WSA”); IMP, 44 Fed. Reg. 72,015


                                      - 20 -
(WSAs “shall be subject to valid existing rights”). Moreover, an opinion from the

Secretary of the Interior shortly after the Paria-Hackberry WSA designation

explained that valid existing rights, including rights-of-way, were excepted from

the non-impairment requirements of 43 U.S.C. § 1782(c). See United States

Dep’t of the Interior Solicitor’s Opinion M-36910, 88 I.D. 909, 1981 WL 29226

(Oct. 5, 1981). In light of this evidence, the district court found that the Paria-

Hackberry designation did not constitute an adverse claim to North Swag and was

thus insufficient to trigger the QTA limitations period.

      Amici argue the designation of Paria-Hackberry as a WSA and publication

of this designation were sufficient to give Kane County and Utah notice of the

claim of the United States. They contend this claim was adverse to the rights of

Kane County and Utah because the WSA designation meant that the land was to

remain “roadless” and imposed upon the BLM a duty to manage the roads on a

non-impairment standard that conflicted with any claimed R.S. 2477 rights-of-

way. SUWA Br. 22–31.

      Amici are correct that publishing an interest in the Federal Register is

sufficient to give notice to affected parties. See George, 672 F.3d at 944 (quoting

44 U.S.C. § 1507). However, as the district court recognized, publication in the

Federal Register is sufficient notice to trigger the limitations period only where

the published notice conflicts with a plaintiff’s interest. Kane I, 934 F. Supp. 2d

at 1362. Thus, if the published interest does not amount to a claim that a plaintiff

                                         - 21 -
lacks R.S. 2477 rights-of-way within a WSA, the limitations period is not

triggered. As San Juan County explained, in the context of R.S. 2477 claims, a

published claim by the United States must amount to a claim of “exclusive

control” to trigger the QTA limitations period. 754 F.3d at 794. Thus, the

determinative issue is whether the Paria-Hackberry designation amounted to a

claim of exclusive control or whether it permitted the United States’ ownership

interest and the Plaintiffs’ right-of-way to “peaceably coexist.” George, 672 F.3d

at 947.

      We conclude the Paria-Hackberry designation was insufficient to trigger

QTA limitations periods against Kane County and Utah. The fact that the

Wilderness Act covers “roadless” areas is inapposite, as the definitions for roads

under the Wilderness Act and R.S. 2477 are not the same. Nor is the non-

impairment standard by which the BLM was to manage the WSA sufficient to

amount to a claim to North Swag road. As a preliminary matter, the Department

of the Interior itself did not believe the non-impairment standard served to limit

valid existing rights, including rights-of-way. See Solicitor’s Opinion M-36910,

supra. Even if the non-impairment standard did apply to R.S. 2477 rights-of-way,

amici have not shown how this would amount to a claim by the United States of

“exclusive control” over North Swag.

      Several other BLM memoranda, both contemporaneous with and subsequent

to the 1980 wilderness designation, strongly suggest that wilderness designations

                                        - 22 -
do not preclude the recognition of R.S. 2477 rights-of-way. The 1980 Instruction

Memorandum issued by the Utah BLM Director, which preceded the Paria-

Hackberry wilderness designation, establishes that the BLM did not believe

wilderness designations rendered an area “roadless” for R.S. 2477 purposes. The

1990 BLM Memorandum stated with even greater clarity that wilderness

designations are “subject to the terms and conditions” of pre-existing rights-of-

way. JT App. 2295. Amici cast these BLM documents as an attempt to “unring

the bell” that the 1980 Paria-Hackberry designation “chimed,” especially given

their status as informal agency pronouncements. See SUWA Br. 29; SUWA

Reply Br. 16 (citing Spirit Lake Tribe v. North Dakota, 262 F.3d 732, 741–42

(8th Cir. 2001); Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189,

1200 (9th Cir. 2008)). But unlike the cases amici cite, the BLM memoranda are

not meant to unring the bell, but to show the bell never rang in the first place. If

the BLM did not believe wilderness designations conflicted with rights-of-way

within the land, it would be strange indeed to declare that Kane County or Utah

should have.

      This court’s analysis in San Juan County provides further support for our

decision. There, San Juan County and Utah brought several QTA claims against

the United States, who argued that the § 2409a limitations periods had run. As to

the County’s claim, the court rejected the United States’ contention that the

closures of two different segments of the same road amounted to an adverse claim

                                        - 23 -
to the road at issue. San Juan Cnty., 754 F.3d at 793–94. More pertinent here,

the court explained that as to Utah’s claim, the United States failed to show that

either the road closures or “a variety of other park management activities,”

including “the National Park Service’s 1970 recommendation that the upper

canyon be designated as wilderness,” amounted to notice of a claim adverse to

Utah’s claimed right-of-way. Id. at 796. Because these management activities

left the road “fully accessible to the public,” they did not suffice to trigger the

limitations period. 2 Id.

        Similarly here, the BLM took no action to deny the public access to North

Swag Road. See Kane I, 934 F. Supp. 2d at 1362. Nor have amici established

that any of the BLM’s management responsibilities pursuant to the wilderness

designation were inconsistent with Kane County or Utah’s right-of-way on North

Swag.

        Amici cite three district court opinions for the proposition that the

publication of a wilderness designation suffices to trigger the QTA limitations

periods. See SUWA Br. 24 (citing S.W. Four Wheel Drive Assoc. v. Bureau of


        2
         We read San Juan County to be in line with our precedent holding that a
“range war” or physical actions to “enforce” a claim are unnecessary to trigger
the QTA’s limitations clock. George, 672 F.3d at 946. The San Juan County
court ultimately concluded that the QTA was not triggered because Salt Creek
Road remained open to the public, but left room for the possibility that
“management activities [that] were inconsistent with the claimed right-of-way”
could provide the necessary notice to start the limitations period. 754 F.3d at
794.

                                         - 24 -
Land Mgmt., 271 F. Supp. 2d 1308, 1312 (D.N.M. 2003), aff’d on other grounds,

363 F.3d 1069, 1070 (10th Cir. 2004); Bd. of Comm’rs of Catron Cnty. v. United

States, 934 F. Supp. 2d 1298, 1306 (D.N.M. 2013); Cnty. of Inoyo v. Dep’t of

Interior, No. CV F 06–1502 AWI DLB, 2008 WL 4468747 (E.D. Cal. Sept. 29,

2008)). These cases ignore the distinction—acknowledged by the BLM

itself—between “roads” for the purpose of the Wilderness Act and “roads” under

R.S. 2477. See Bd. of Comm’rs of Catron Cnty., 934 F. Supp. 2d at 1304–07;

S.W. Four Wheel Drive, 271 F. Supp. 2d at 1310–12. Moreover, these cases are

unpersuasive in light of this court’s decision in San Juan County.

      Thus, we conclude the designation of the Paria-Hackberry WSA and

publication of this designation in the Federal Register were insufficient to trigger

the limitations period against Kane County under § 2409a(g) and Utah under §

2409a(i). Because we find Utah was not reasonably aware of an adverse claim by

the United States, we need not address whether the United States “conducted

substantial activities” or “made substantial improvements” to the land under

§ 2409a(i).

      b.      The 1991 Meeting of the Board of Commissioners

      Next, amici contend the County received notice of the United States’

adverse claim to North Swag in 1991, when BLM officials met with County

officials to inform them of the necessary procedures for obtaining recognition of

R.S. 2477 rights-of-way. SUWA Br. 26. This meeting was brought about by the

                                        - 25 -
Secretary of the Interior’s December 7, 1988 statement that it was “necessary in

the proper management of Federal land to be able to recognize with some

certainty the existence, or lack thereof, of public highway grants obtained under

R.S. 2477.” Kane I, 934 F. Supp. 2d at 1361. Nothing in the minutes of these

meetings amounts to an adverse claim by the United States. That some

commission members recognized a need to quiet title to R.S. 2477 rights-of-way

does not establish that Kane County had reasonable awareness of an adverse

claim of the United States. Thus, we affirm the district court’s decision finding

jurisdiction over North Swag Road under the QTA.

B.    PWR 107 and Lands Reserved for Public Uses Under R.S. 2477

      R.S. 2477 rights-of-way can only be established over public lands “not

reserved for public uses.” SUWA, 425 F.3d at 784 (emphasis added). The

district court concluded that Public Water Reserve (PWR) 107, a 1926 executive

order, operated to “reserve” from the operation of R.S. 2477 two parcels of land

across which Swallow Park Road runs. Kane II, 2013 WL 1180764, at *58–59.

We disagree.

      At the start of the twentieth century, monopolization of public water

sources in the West had become a significant problem. See The Classification of

the Public Lands, U.S. Geological Survey Bull. 537, at 42–43 (1913). “Water

controlled the range,” and it became common practice for a landowner to file land

scrips upon all water springs in a district, effectively allowing him to exclude all

                                        - 26 -
competition. See James Muhn, Public Water Reserves: The Metamorphosis of a

Public Land Policy, 21 J. Land Resources & Envtl. L. 67, 68, 81 (2001) (citation

omitted). This practice led to regular struggles for possession of watering holes

and eventually garnered the attention of Congress and federal land agencies.

      In 1910, Congress enacted the Pickett Act (or General Withdrawal Act)

granting the President authority to make withdrawals for “water-power sites,

irrigation, classification of lands, or other public purposes.” Act of June 25,

1910, ch. 421, 36 Stat. 847 (emphasis added). 3 Pursuant to the “other public

purposes” language of the Pickett Act, in 1912 President Taft signed what became

Public Water Reserve No. 1, a withdrawal order for 16,200 acres covering

roughly 32 watering springs in Western Utah. Similar withdrawals of federal land

containing water came in a somewhat piecemeal fashion. Opponents of these

withdrawals, such as Congressman Frank Mondell of Wyoming, were concerned

they might interfere with settlement and acquisition of land in the West.

Department of the Interior Secretary Walter Fisher, in defense of the policy,



      3
         The Act additionally provided that withdrawn lands “shall at all times be
open to exploration, discovery, occupation, and purchase under the mining laws
of the United States, so far as the same apply to metalliferous minerals.” 37 Stat.
947. Kane County argues that because R.S. 2477 was enacted as Section 8 of the
Mining Act of 1866, which (in other provisions) dealt with metalliferous
minerals, R.S. 2477 is a “mining law” that “appl[ies] to metalliferous minerals.”
Kane Br. 15–16. We reject this argument and conclude that the mere coincidence
of R.S. 2477’s location in a law that later came to be known as the Mining Act of
1866 is insufficient to bring it within the Pickett Act’s exception.

                                        - 27 -
assured Congressman Mondell that the withdrawals did “not mean that [the water

sources] are reserved from private uses; on the contrary, it means that those

private uses are encouraged and permitted.” Muhn, supra, at 85–86.

      In the face of uncertainty regarding the legal authority for such

withdrawals, Congress in 1916 passed the Stock-Raising Homestead Act (SRHA),

Section 10 of which provides:

      [L]ands containing water holes or other bodies of water needed or
      used by the public for watering purposes . . . may be reserved under
      the provisions of the [Pickett Act] and such lands heretofore or
      hereafter reserved shall, while so reserved, be kept and held open to
      the public use for such purposes and under such general rules and
      regulations as the Secretary of the Interior may prescribe. . . .

Act of Dec. 29, 1916, ch. 9, 39 Stat. 862, 865 (codified at 43 U.S.C. §§ 291 et

seq.), repealed by FLPMA.

      Pursuant to the SRHA and Pickett Act, in 1926 President Calvin Coolidge

signed PWR 107, which provides:

     [I]t is hereby ordered that every smallest legal subdivision of the
     public-land surveys which is vacant unappropriated unreserved public
     land and contains a spring or water hole, and all land within one
     quarter of a mile of every spring or water hole located on unsurveyed
     public land be, and the same is hereby, withdrawn from settlement,
     location, sale, or entry, and reserved for public use in accordance with
     the provisions of [the SRHA] and in aid of pending legislation.

Public Water Reserve No. 107 (Apr. 17, 1926). Unlike prior withdrawals of

water, PWR 107 was a “blanket” withdrawal. Muhn, supra, at 110.

      In sending the order to the President, the Secretary of the Interior


                                       - 28 -
explained:

      The control of water in the semiarid regions of the west means
      control of the surrounding areas . . . . Private parties have used
      various lieu selection and scrip acts as a vehicle of acquiring small
      areas surrounding these springs and water holes, thus withdrawing
      them from the common use of the general public . . . and for this
      reason . . . it is believed advisable to make a temporary general order
      of withdrawal.

Letter from Hubert Work, U.S. Sec’y of the Interior, to President Calvin Coolidge

(Apr. 17, 1926).

      In 1929, the Secretary of the Interior construed PWR 107 to include, inter

alia, two parcels of land through which Swallow Park Road crosses. It is

undisputed that the Secretary properly determined that PWR 107 applies to these

parcels. Thus, the issue before this court is whether the two parcels were

“reserved for public use”—thus preventing the operation of R.S. 2477—or merely

“withdrawn.”

      The distinction between a reservation and a withdrawal for purposes of R.S.

2477 was set forth by this court in Southern Utah Wilderness Alliance (SUWA) v.

Bureau of Land Management, 425 F.3d 735, 784–86 (10th Cir. 2005). The court

in SUWA addressed whether the Coal Withdrawal of 1910, which stated that

certain federal lands were “withdrawn from settlement, location, sale or entry,

and reserved for classification and appraisement with respect to coal values,”

operated to “reserve” those lands for public use under R.S. 2477. Id. at 784

(emphasis added). The court explained that a withdrawal merely “ma[de] land

                                       - 29 -
unavailable for certain kinds of private appropriation,” whereas a reservation “not

only withdraws the land from the operation of the public lands laws, but also

dedicates the land to a particular public use. Id. (emphasis added). Further, “just

because a withdrawal uses the term ‘reserved’ does not mean that it reserves land

‘for public uses.’” Id. at 785.

      The court found that despite the coal withdrawal’s language, it did not

reserve the land at issue “for public use.” The historical context of the coal

withdrawal established that it “narrowly, and temporarily, removed potential coal

lands from certain kinds of private appropriation.” Id. at 785. The land was

withdrawn to allow the United States to “reexamine and reclassify lands which it

thought might have exceptional value”—insufficient, in the court’s view, to

amount to a reservation. Id. (citation omitted). Further, common sense dictated

that the withdrawal, which permitted widespread settlement under public law,

“was not meant to cut off the right to establish access to those claims.” Id. at

786. “[I]t would make little sense for Congress to open public lands to private

claims but forbid settlers to construct highways to access those claims.” Id.

      Whether PWR 107 “reserves” land for “public use” presents a closer

question than the coal withdrawal at issue in SUWA. PWR 107 goes beyond the

mere temporary appropriation SUWA found the Coal Withdrawal to be. Further,

PWR 107 withdrew land to “be kept and held open to the public” for “watering

purposes” under the SRHA—certainly more of a “public use” than withdrawing

                                        - 30 -
lands for reclassification and appraisal. However, SUWA explained that a

reservation must set aside land for a specific public purpose—such as a park,

military post, or Native American land—and PWR 107 simply set aside land for

the general purpose of preserving water access to the public. See id. at 784

(citing 63C Am. Jur. 2d Public Lands § 31 (2005)).

      Determinative here is the fact that if PWR 107 did in fact operate to

“reserve” land from the operation of R.S. 2477, its effect was the precise opposite

of its purpose. PWR 107 sought to prevent private appropriation and

monopolization of water sources in order to guarantee public access to these

water sources. If PWR 107 “reserved” land from R.S. 2477, the sole means for

the public to construct roads to access these water sources would be eliminated.

See id. at 786 (“R.S. 2477 was essentially the only authority by which highways

could be established across public lands by state and local governments.” (quoting

BLM in previous litigation)). As in SUWA, it would be nonsensical for Congress

and the President to preserve the public’s access to watering springs “but forbid

settlers to construct highways to access” these springs. Id. at 786. That Congress

or the President intended to set aside this land for public watering purposes yet

silently deny the public the right-of-way to access it is highly improbable.

      The United States suggests that R.S. 2477 rights-of-way are not the only

ways for the public to access watering holes reserved under PWR 107 and

suggests three alternatives. First, it contends that the 1925 Department of Interior

                                        - 31 -
regulation Circular No. 1028 “fully protected public access to water sources.”

Aplee. Br. 56. But Circular No. 1028 merely allowed citizens to apply for a

permit to “improve the productivity of any water hole or source of water supply”

within a reserve or “conduct such waters from their source within a reserve to a

point or place more convenient for public use”; the regulation does not provide

for general public access to use the sources. See Supp. App. 103. Next, the

United States points to federal regulations setting forth procedures for obtaining a

right-of-way across reserved lands. Aplee. Br. 57 (citing 43 C.F.R. § 244.47

(1943)). But these regulations did not come about until 1943, seventeen years

after PWR 107. Finally, the United States argues that, as the district court

observed, Plaintiffs could simply request a right-of-way pursuant to the FLPMA

Title V permit process. Aplee Br. 58 n.27. Perhaps so, but this argument suffers

the same flaw as the prior one: the Title V permit process did not become

available until the passage of the FLPMA in 1976. See Pub. L. No. 94-579, Title

V, § 501, 90 Stat. 2776 (Oct. 21, 1976) (codified at 43 U.S.C. § 1761). The

logical consequence of this argument is that PWR 107, an executive order aimed

at ensuring public access to water, had precisely the opposite effect until the

passage of the FLPMA in 1976. This argument is untenable.

      In SUWA, the court found that common sense dictated that a coal

withdrawal that permitted widespread settlement under homestead laws “was not

meant to cut off the right to establish access to those claims.” 425 F.3d at 786.

                                        - 32 -
The same rationale applies here. R.S. 2477 was “essentially the only authority”

by which the public could establish roads across federal lands. Id. If PWR 107

cut off that authority, no roads could be developed to access the very water PWR

107 aimed to preserve for public use.

      For the foregoing reasons, we conclude PWR 107 was not a “reservation”

for the purposes of R.S. 2477 and thus reverse the district court’s determination

that Plaintiffs could not establish a right-of-way on the segment of Swallow Park

Road crossing these parcels. On the remainder of Swallow Park Road, the district

court found Plaintiffs presented sufficient evidence to establish an R.S. 2477

right-of-way. Kane II, 2013 WL 1180764, at *52. Because the district court

found that “no evidence was presented that the public has been denied access to

[the] portions of the road crossing . . . the PWR 107 parcels” and that “the public

was able to travel the full length of [Swallow Park Road] as often as it found it

convenient or necessary,” Kane County and Utah have also established an R.S.

2477 right-of-way over the portion of Swallow Park Road that crosses the PWR

107 parcels as well. Id.

C.    Standard of Proof

      The district court required Plaintiffs to prove their R.S. 2477 rights-of-way

by clear and convincing evidence and found that Plaintiffs had not met this

burden as to three of the Cave Lakes roads, K1075, K1087 and K1088. Kane II,

2013 WL 1180764, at *43–45, *55. Kane County and Utah appeal as to K1075

                                        - 33 -
and contend that “preponderance of the evidence” is the appropriate standard of

proof for establishing R.S. 2477 rights-of-way. Because we concluded above that

the district court erred in exercising jurisdiction over Cave Lakes Road K1075,

we do not reach the issue of the appropriate standard of proof.

D.    Scope of the Rights-of-Way: North Swag, Swallow Park, and Skutumpah
      Roads

      Swallow Park Road is a narrow, five-mile stretch of dirt road in Western

Kane County. A four-mile stretch of the road has a 10–12 foot travel surface with

vehicles unable to pass. Similarly, North Swag Road is a narrow dirt road

approximately five miles long with a travel surface of ten feet. Skutumpah Road

is a major two-lane thoroughfare with a travel surface of 24–28 feet.

      The district court found Plaintiffs had established R.S. 2477 rights-of-way

on North Swag, Swallow Park, and Skutumpah roads. Kane II, 2013 WL

1180764, at *51–53, *60–62. It determined Plaintiffs held 24-foot rights-of-way

on Swallow Park and North Swag Road and a 66-foot right-of-way on Skutumpah

Road. The United States contends that the district court committed two errors.

First, the United States argues the court failed to base the North Swag and

Swallow Park right-of-way widths on uses that were established as of 1976, when

R.S. 2477 was repealed. 4 Aplee. Br. 38–44. Second, it contends the district court


      4
         The United States does not challenge the district court’s width
determination as to the wider portion of Swallow Park Road that is below its
intersection with Skutumpah. Aplee. Br. 36 n.17.

                                       - 34 -
improperly allowed room for unspecified future improvements to North Swag,

Swallow Park and Skutumpah roads. Id. at 45–50. We agree with the United

States on both points and remand to the district court.

1.    “Reasonable and Necessary” in Light of Pre-1976 Uses

      The FLPMA repealed R.S. 2477 in 1976 but preserved existing rights-of-

way. See 43 U.S.C. § 1769(a). Thus, R.S. 2477 rights-of-way were preserved “as

they existed on the date of passage” of the FLPMA, October 21, 1976. Hodel,

848 F.2d at 1083; see also SUWA, 425 F.3d at 746 (“[T]he scope of an R.S. 2477

right of way is limited by the established usage of the route as of the date of the

repeal of the statute.”).

      The width of the road, however, is not limited to the actual beaten path as

of October 21, 1976. Hodel, 848 F.2d at 1083; SUWA, 425 F.3d at 746. Courts

look to state law to determine the appropriate width, Hodel, 848 F.2d at 1083, and

under Utah law, the width of a public road is that which is “reasonable and

necessary under all the facts and circumstances.” Memmott v. Anderson, 642

P.2d 750, 754 (Utah 1982). Thus, the road can be “widened to meet the

exigencies of increased travel,” including where necessary to ensure safety.

Hodel, 848 F.2d at 1083–84 (citation omitted). However, the “‘reasonable and

necessary’ standard must be read in the light of traditional uses to which the

right-of-way was put.” Id. at 1083 (emphasis added). Thus, the proper inquiry is

what width is reasonable and necessary in light of the pre-1976 uses of the road.

                                        - 35 -
Id. at 1084 (holding that improvement of the Burr Trail was “reasonable and

necessary to ensure safe travel” in light of the pre-1976 uses of livestock

transportation, oil, water and mineral development and tourism).

      The district court made only a passing reference to Hodel and SUWA’s

mandate that the reasonable and necessary standard be viewed in light of pre-1976

uses and did not appear to apply this standard to Swallow Park and North Swag

roads. Kane II, 2013 WL 1180764, at *63–65. It made substantial factual

findings regarding pre-1976 uses of Swallow Park and North Swag and

considered these findings in evaluating whether R.S. 2477 rights-of-way existed

at all. See id. at *51–52 (Swallow Park), *52–53 (North Swag). However, it did

not consider these findings in evaluating their scope. Id. at *65. Instead, the

court relied chiefly on travel guidelines published by the American Association of

State Highway and Transportation Officials (AASHTO) suggesting road widths

for roads providing access to recreational or agricultural areas. These Guidelines

may be relevant to the determination of what width is reasonable and necessary in

light of the pre-1976 uses of Swallow Park and North Swag roads. However,

because the district court did not discuss these pre-1976 uses, we must remand.

      The FLPMA “had the effect of ‘freezing’ R.S. 2477 rights as they were in

1976.” SUWA, 425 F.3d at 741. It brought about a “statutory sea change” that

“instituted a preference for retention of the lands in federal ownership, with an

increased emphasis on conservation and preservation.” Id. These policies inform

                                        - 36 -
our determination of the scope of R.S. 2477 rights-of-way and call for caution in

allowing improvements or expansions beyond the width of R.S. 2477 roads in

1976. As this court has consistently held, rights-of-way may be expanded beyond

their 1976 widths only where reasonable and necessary in light of pre-1976 uses.

2.    Unspecified Future Improvements

      The district court determined that a 60-foot right-of-way was appropriate

for Skutumpah Road and explained that this width would allow “room to address

any future realignments or other improvements needed to increase safety.” Kane

II, 2013 WL 1180764, at *64. As to Swallow Park and North Swag roads, the

court determined 24-foot rights-of-way were appropriate, explaining that this

width “allow[ed] for maintenance and improvements.” Id. at *65. The United

States contends that the district court erred in allowing room for unspecified

future improvements. We agree.

      Hodel explained that “the initial determination of whether activity falls

within an established right-of-way is to be made by the BLM and not the court.”

848 F.2d at 1084 (citation omitted). SUWA clarified this statement by drawing a

sharp distinction between “routine maintenance” and “improvements” to R.S.

2477 rights-of-way. 425 F.3d at 749. When a right-of-way holder undertakes

routine maintenance, it need not consult with the pertinent federal land

management agency. But, before a holder makes “improvements” to a right-of-

way, the land management agency must be consulted to allow it an opportunity to

                                       - 37 -
determine if the improvement is “reasonable and necessary” and to “study

potential effects, and if appropriate, to formulate alternatives that serve to protect

the lands.” Id. at 748. Only in the event of a disagreement at this stage can the

parties resort to the courts. Id.

      Plaintiffs argue that the United States’ right under SUWA to be consulted

prior to improvements on the right-of-way was not violated because the district

court explained that “realignments or improvements would require consultation

with the BLM before they are undertaken.” Kane II, 2013 WL 1180764, at *64

n.33. But this places the cart before the horse. A court can find, as did the court

in Hodel, that certain proposals for improvement are “reasonable and necessary”

in light of the traditional uses of the road, so long as the BLM was consulted in

advance. 848 F.2d at 1084. But to allow for unspecified improvements ex ante

deprives the BLM of the opportunity to perform its duties effectively. The

process set forth in SUWA contemplates a precise order of actions for holders of

rights-of-way seeking improvements. First, they consult with the BLM as to the

proposed improvements; then, “[i]n the event of a disagreement, the parties may

resort to the courts.” 425 F.3d at 748. Thus, we find the district court erred in

allowing for unspecified improvements in setting the widths of the rights-of-way

on Skutumpah, Swallow Park and North Swag roads. Therefore, we remand the

question of the scope of the R.S. 2477 rights-of-way on these roads.




                                         - 38 -
      AFFIRMED in part, REVERSED in part, and REMANDED. 5




      5
        We grant the motion of Sierra Club, Grand Canyon Trust and National
Parks Conservation Association for leave to file an amicus brief.

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