Kane County Utah v. Salazar

FILED
United States Court of Appeals
Tenth Circuit

April 13, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KANE COUNTY UTAH, a Utah
political subdivision; KANE
COUNTY BOARD OF
COMMISSIONERS; GARFIELD
COUNTY, a Utah political
subdivision; GARFIELD COUNTY
BOARD OF COMMISSIONERS,

Plaintiffs-Appellants,

and

KANE COUNTY WATER
CONSERVANCY DISTRICT, a Utah
Water Conservancy District,

Plaintiff,
v. No. 07-4207 & 08-4014
KEN SALAZAR, in his official
capacity as Secretary of the Interior;
UNITED STATES DEPARTMENT
OF THE INTERIOR; MIKE POOL, in
his official capacity as Acting Director
of the Bureau of Land Management;
BUREAU OF LAND
MANAGEMENT; SELMA SIERRA,
in her official capacity as the Utah
State Director of the Bureau of Land
Management; RENE BERKHOUT, in
her official capacity as manager of the
Grand Staircase-Escalante National
Monument,

Defendants-Appellees,
 NATIONAL TRUST OF HISTORIC
PRESERVATION; SIERRA CLUB;
SOUTHERN UTAH WILDERNESS
ALLIANCE; THE WILDERNESS
SOCIETY,

Defendants-Intervenors-
Appellees,

and

TROUT UNLIMITED,

Amicus Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:05-CV-941-BSJ)

Shawn T. Welch, (A. John Davis with him on the briefs), Holme, Roberts &
Owen, LLP, Salt Lake City, Utah, for Plaintiffs-Appellants.

David C. Shilton, (Ronald J. Tenpas, Assistant Attorney General; Thomas K.
Snodgrass, Attorney, Environmental and Natural Resources Division; Aaron P.
Avila, Attorney, Environmental and Natural Resources Division, with him on the
brief), Department of Justice, Washington, D.C., for Defendants-Appellees.

Edward B. Zukoski, (James S. Angell, Earthjustice, Denver, Colorado; Heidi
McIntosh and Stephen H. M. Bloch, Southern Utah Wilderness Alliance, Salt
Lake City, Utah, with him on the brief), Earthjustice, Denver, Colorado, for
Defendants-Intervenors-Appellees.

Drew Peternell, Trout Unlimited, filed an amicus brief is support of appellees.

Before HENRY, BRISCOE, and LUCERO, Circuit Judges.

2
BRISCOE, Circuit Judge.

Plaintiffs Kane County, Utah, the Kane County Board of Commissioners,

Garfield County, Utah, the Garfield County Board of Commissioners, and the

Kane County Water Conservancy District filed suit against the Secretary of the

Interior and other federal governmental officials alleging that a management plan

adopted by defendants for overseeing the Grand Staircase-Escalante National

Monument infringed upon plaintiffs’ water rights and certain rights-of-way

utilized by plaintiffs for purposes of public highways. The district court

dismissed plaintiffs’ claims pursuant to Federal Rule of Civil Procedure 12(b)(1)

and (6). Plaintiffs now appeal. We exercise jurisdiction pursuant to 28 U.S.C. §

1291 and affirm.

I

Rights-of-way over public lands pursuant to R.S. 2477

“In 1866, Congress passed an open-ended grant of ‘the right of way for the

construction of highways over public lands, not reserved for public uses.’” S.

Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 740 (10th Cir.

2005) (quoting 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). “This statute, commonly

called ‘R.S. 2477,’ remained in effect for 110 years, and most of the

3
transportation routes of the West were established under its authority.” Id. “In

1976, however, Congress abandoned its prior approach to public lands and

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

increased emphasis on conservation and preservation.” Id. at 741. “As part of

that statutory sea change, Congress repealed R.S. 2477.” Id. “There could be no

new R.S. 2477 rights of way after 1976.” Id. “But even as Congress repealed

R.S. 2477, it specified that any ‘valid’ R.S. 2477 rights of way ‘existing on the

date of approval of th[e] [FLPMA]’ (October 21, 1976) would continue in effect.”

Id. (quoting Pub. L. No. 94-579 § 701(a), 90 Stat. 2743, 2786 (1976)). Congress

also directed that “[a]ll actions [taken] by the Secretary concerned under this Act

[the FLPMA] shall be subject to valid existing rights.” 43 U.S.C. § 1701

historical note (h).

Creation of the Monument

On September 18, 1996, President Clinton created the Grand Staircase-

Escalante National Monument (Monument), located in Kane and Garfield

Counties, Utah, to protect a “spectacular array of scientific and historic

resources.” 61 Fed. Reg. 50,223 (Sept. 18, 1996). In doing so, President Clinton

proclaimed that “[a]ll Federal lands and interests in lands within the boundaries of

th[e] monument [we]re [t]hereby appropriated and withdrawn from entry,

location, selection, sale, leasing, or other disposition under the public land laws,”

and that “[l]ands and interests in land not owned by the United States s[hould] be

4
reserved as a part of the monument upon acquisition of title thereto by the United

States.” Id. at 50,225. The proclamation did not, however, “reserve water as a

matter of Federal law.” Id. As part of the proclamation, President Clinton

directed the Secretary of the Interior (the Secretary) to “prepare, within 3 years . .

. , a management plan for” the Monument. Id. Lastly, the proclamation provided

that the Secretary would “manage the [M]onument through the Bureau of Land

Management” (BLM). Id.

The management plan for the Monument

On November 15, 1999, the Secretary issued a final management plan (the

Plan) and record of decision (ROD) for the Monument. 65 Fed. Reg. 10,819 (Feb.

29, 2000).

The ROD, which was published as part of the Plan, stated, in pertinent part:

[D]iscussion of R.S. 2477 assertions in footnote 1 of Chapter 2 of the
Approved Plan has also been clarified to emphasize that nothing in
the Plan extinguishes any valid existing rights-of-way in Grand
Staircase-Escalante National Monument. Nothing in this Plan alters
in any way any legal rights the Counties of Garfield and Kane or the
State of Utah has to assert and protect R.S. 2477 rights, and to
challenge in Federal court, or any other appropriate venue, any BLM
road closures that they believe are inconsistent with their rights.

App. at 20 (citing ROD, p. ix).

The Plan, in a section entitled Transportation and Access, stated:

TRAN-1 This Plan designates the route system for the Monument.
The transportation map (Map 2, in the back of the document) shows
routes that will be open for public use and those available for
administrative use only (see the Administrative Routes and

5
Authorized Users section for related decisions). Any route not
shown on Map 2 is considered closed upon approval of this Plan,
subject to valid existing rights. [fn.1]

[Footnote 1] Some government entities may have a valid
existing right to an access route under Revised Statutes (R.S.)
2477, Act of June 26, 1866, ch. 262, § 8, 14 Stat. 251, which
granted “[the right-of-way for the construction of highways
over public lands, not reserved for public uses.]” As described
in the United States Department of Interior, Report to
Congress on R.S. 2477 (June 1993), claims of rights-of-ways
under R.S. 2477 are contentious and complicated issues, which
have resulted in extensive litigation. See e.g., Sierra Club v.
Hodel, 848 F.2d 1068 (10th Cir. 1988); Southern Utah
Wilderness Alliance v. Bureau of Land Management,
Consolidated Case No. 2:96-CV-836-S (D. Utah, filed Oct. 3,
1996, pending). It is unknown whether any R.S. 2477 claims
would be asserted in the Monument which are inconsistent
with the transportation decisions made in the Approved Plan or
whether any of those R.S. 2477 claims would be determined to
be valid. To the extent inconsistent claims are made, the
validity of those claims would have to be determined. If
claims are determined to be valid R.S. 2477 highways, the
Approved Plan will respect those as valid existing rights.
Otherwise, the transportation system described in the
Approved Plan will be the one administered in the Monument.
Nothing in this Plan extinguishes any valid existing right-of-
way in the Grand Staircase-Escalante National Monument.
Nothing in this Plan alters in any way any legal rights the
Counties of Garfield and Kane or the State of Utah has to
assert and protect R.S. 2477 rights, and to challenge in Federal
court or other appropriate venue, any BLM road closures that
they believe are inconsistent with their rights.]

The specific routes shown open for public use are based on a variety
of considerations including what is needed to protect Monument
resources, implement the planning decisions, and provide for the
transportation needs of surrounding communities. The basic
philosophy in determining which routes will be open was to
determine which routes access some destinations (e.g., scenic
overlook, popular camping site, heavily used thoroughfare) and

6
 present no significant threat to Monument resources. These routes
will be open for public use. Routes that were not considered
necessary or desirable (for resource protection purposes) will not be
kept open for motorized and mechanized public access. In the event
that Title 5 rights-of-way are issued or in the event of legal decisions
on RS 2477 assertions, routes will be governed under the terms of
those actions.

Grand Staircase-Escalante National Monument Management Plan at 46, available

at http://www.blm.gov/ut/st/en/fo/grand_staircase-escalante/planning/

monument_management.html (last visited on January 20, 2009) (emphasis

added). 1

Under the Transportation and Access provisions, the Plan also provided:

Road Restoration Strategy

TRAN-17 The BLM’s strategy for restoring routes that will no
longer be available for public or administrative motorized use in the
Monument will be phased over a period of years. This will be
accomplished as rapidly as funding permits. It is anticipated that this
could take as many as ten years. Each year, a percentage of the
Monument’s base budget will be used to restore routes in areas that
are easily accessible to the public and that involve sensitive
resources in immediate danger of being degraded. Generally, routes
in the Frontcountry and Passage Zones will be closed first. However,
there may be routes in the Outback and Primitive Zones that will be
considered on a case-by-case basis.

The proposal for restoration will include:
• not repairing washed out routes
• natural barriers, such as large boulders
• dead and down wood to obscure route entry ways
• fences
• ripping up the route bed and reseeding with vegetation natural to
that area

1
We note that the appendix does not include a complete copy of the Plan.

7
 • replacing gates with a fence if area has a fence in place
• visitor education and information

Each route will be looked at individually, and the best, least intrusive
method will be used based on the geography, topography, soils,
hydrology, and vegetation. The first several hundred feet of select
routes identified for closure could be left open to provide pull-out
areas or camping opportunities, preventing new ground disturbance
elsewhere.

Id. at 48.

The Plan also addressed the diversion of water to locations outside of the

Monument:

Water

***

WAT-1 Ensure that land management policies protect water
resources.
Since much of the water important to the Monument falls as
precipitation within the Monument, its continued availability can be
ensured by appropriate land management policies within the
Monument. The BLM will exercise its existing land management
authorities to protect and maintain all available water and natural
flows in the Monument. Several decisions described in other
sections of this Plan are designed to meet this objective. These
include the following:

***

• In general, diversions of water out of the Monument will not be
permitted. There is an existing small-scale diversion of groundwater
out of the Monument for the domestic water supply of the nearby
town of Henrieville. This Plan does not prohibit the continuation of
this diversion, nor its expansion, if necessary, to meet the municipal
needs of population growth in Henrieville. Any proposed new
groundwater diversion to meet Henrieville’s municipal needs could
be approved, consistent with the Plan, if the BLM and the Utah State

8
 Engineer complete a joint analysis to determine that such
development would not adversely impact springs or other water
resources within the Monument, and the BLM completes the usual
NEPA analysis. Exceptions could be considered for other local
community culinary needs if the applicant could demonstrate that the
diversion of water will not damage water resources within the
Monument or conflict with the objectives of this Plan.

Id. at 31-32 (italics in original).

The filing and dismissal of plaintiffs’ complaint

On November 14, 2005, a group of entities consisting of Kane County,

Utah, the Kane County Board of Commissioners, the Kane County Water

Conservancy District (the District), Garfield County, Utah, and the Garfield

County Board of Commissioners filed this action against the Secretary, the

Department of the Interior, the BLM and its Director, the acting Utah State

Director of the BLM, and the Manager of the Monument, seeking mandamus,

declaratory and injunctive relief. In their first amended complaint, the plaintiffs

alleged that Kane and Garfield Counties “own[ed] . . . numerous R.S. 2477 rights-

of-way crossing public lands within the Counties and also within the Monument”

“that continue[d] to serve the valuable interests of the public in traveling from

place to place across public lands within and without [the] Counties,” App. at 15,

and that the Counties were authorized under Utah state law to regulate the use of

the roads on, and traffic across, those rights-of-way, id. at 16. The first amended

complaint further alleged that the District “own[ed] various water rights and

rights to water within Kane County,” id. at 17, “some of which ha[d] points of

9
diversion within the boundaries of the Monument,” id. at 18. In turn, the first

amended complaint alleged that the Plan “fail[ed] to comply with” the FLPMA

“in that it [wa]s not subject to valid existing rights, it restrict[ed] the use of, and

terminate[d], valid existing rights, it extensively and unnecessarily curtail[ed]

historic and current public uses, it utterly fail[ed] to address Plaintiffs’ local

plans, and it ignore[d] FLPMA’s principles of multiple use.” Id. at 24-25. More

specifically, the first amended complaint alleged that the Plan and/or its

implementation:

• “created a transportation system in willful blindness to [the]
Counties’ prior-existing rights, purported to regulate and restrict the
use of valid existing rights, and to otherwise close and destroy valid
existing rights within the boundaries of the Monument,” id. at 25;

• “fail[ed] to identify even a single county right-of-way within the
entire 1.8 million acre Monument,” id.;

• “denied and impaired [the] Counties’ ability to manage their rights-
of-way, the public’s historic uses and rights, and the county roads
that traverse these rights-of-way in accordance with applicable law,”
id. at 25-26;

• “denied [the] Counties, and the public, the use and enjoyment of the
Counties’ rights-of-way within the Monument, including according to
historic and current public uses,” id. at 26; and

• “purport[ed] to trap the District’s water rights and points of
diversion within the Monument, and to impose unauthorized burdens
upon the District to seek diversion of these water rights from the
Monument,” id. at 27.

Based upon these allegations, the first amended complaint asserted three

causes of action against defendants: (1) a claim under the Administrative

10
Procedures Act (APA) and/or “the doctrine of non-statutory judicial review,” id.

at 28, seeking a declaration that defendants’ actions had violated the FLPMA

and/or the Due Process Clause and impaired the Counties’ “interests in the

continuing use, access, possession, maintenance and management of their rights-

of-way,” id. at 29; (2) a claim for injunctive relief in the form of “an order . . .

enjoining enforcement of [certain] Transportation and Access, including Map 2,

LAND-4, and Water sections of the Plan,” id. at 30; and (3) a claim for

mandamus relief in the form of a court order “directing each of the Individual

Defendants to first determine Plaintiffs’ valid existing rights before asserting or

taking any action in enforcement or implementation of [certain] Transportation

and Access, including Map 2, LAND-4, or Water sections of the Plan,” and

“directing Monument manager David Hunsaker to remove any physical barriers

placed upon any right-of-way or road within the Monument until such time as it

has been determined that such actions will not impair valid existing rights,” id. at

31.

On November 23, 2005, the Southern Utah Wilderness Alliance, the

National Trust for Historic Preservation, The Wilderness Society, and the Sierra

Club (collectively SUWA) moved to intervene as defendants in the action

pursuant to Fed. R. Civ. P. 24(a)(2). The district court granted SUWA’s motion

on January 5, 2006.

On May 5, 2006, the federal defendants moved to dismiss the first amended

11
complaint on four grounds: (1) “because Plaintiffs’ vague and conclusory

assertions of injuries to unspecified rights-of-way and water rights [we]re

insufficient to establish a concrete, injury-in-fact giving rise to standing,” id. at

53; (2) “because Plaintiffs’ challenges to the Plan [we]re not ripe due to

Plaintiffs’ failure to allege how the Plan ha[d], in fact, restricted or denied on a

site-specific level the exercise of any valid existing rights held by Plaintiffs,” id.

at 54; (3) “because the APA does not waive sovereign immunity for the

adjudication of claims that are premised upon the assertion of unproven property

interests in federal land, such as Plaintiffs’ right-of-way and water right claims,”

id.; and (4) “because neither FLPMA nor the Due Process Clause require[d] the

Federal Defendants to identify and determine all existing rights-of-way within a

planning area when preparing a land use plan,” id.

On May 25, 2006, SUWA moved for judgment on the pleadings, arguing, in

pertinent part, that “the United States [could] not be sued based upon bare

allegations of title, such as made by the Counties here, except under the Quiet

Title Act, 28 U.S.C. § 2409a, which the Counties failed to invoke.” Id. at 111.

On June 29, 2007, the district court issued a memorandum opinion and

order granting in part the federal defendants’ motion to dismiss and SUWA’s

motion for judgment on the pleadings. In doing so, the district court dismissed

the claim for judicial review of the Plan under the APA, but granted the plaintiffs

leave to file an amended complaint under the Quiet Title Act “as to the existence

12
and scope of R.S. 2477 rights-of-way . . . .” Id. at 446. As for the “District’s

claim concerning the diversion of water out of the Monument,” the district court

dismissed it “as premature,” but granted the District “leave to file an amended

complaint within twenty (20) days . . . .” Id.

The District’s supplement to the first amended complaint

On July 16, 2007, the District filed a supplement to the first amended

complaint. The supplement alleged that “on June 5, 2006 . . . , the District filed

its Application for Transportation and Utility Systems and Facilities on Federal

Lands . . . for the purpose of obtaining a right-of-way for the use of a well-pad

and to install a 12" to 14" buried pipeline and related utility lines along an

existing road.” Id. at 450-51. The supplement further alleged that “[t]he

Monument manager[]” responded to the Application by citing the Plan provisions

regarding diversions of water and stating that a right-of-way “could probably be

issued,” id. at 453, if the District was able to demonstrate “that the diversion of

water w[ould] not damage water resources within the Monument or conflict with

the objectives of th[e] Plan,” id. at 452. The supplement alleged that

“[d]efendants ha[d] no right or authority to determine underground water resource

damage, water conflicts, or to prohibit types of uses of the District’s water”

because “[t]hose decisions [we]re within the exclusive jurisdiction of the Utah

State Engineer.” Id. at 453. In addition, the supplement alleged that

“[d]efendants ha[d] no process or authority for adjudicating water resource

13
damage or conflicts, nor any such process or authority for the ‘criteria’ that

[we]re . . . being imposed upon the District” by the Monument manager and his

staff. Id. at 454. Ultimately, the supplement alleged that “[d]efendants’ refusal

to process the District’s Application . . . constitute[d] [either] discrete, final

agency action that [wa]s arbitrary, capricious and beyond statutory right and

authority,” id., or “agency action unlawfully withheld or unreasonably delayed,”

id. at 455. In turn, the supplement asked the district court to “enter an order

declaring the water resource based restrictions or criteria on diversion of water

from the Monument in the Plan’s LAND-4 and WAT-2 sections to be arbitrary,

capricious, or beyond right or authority,” “enjoining enforcement of the unlawful

water resource based restrictions or criteria in the Plan’s LAND-4 and WAT-2

sections,” and “directing defendants to process the District’s application without

reference to the unlawful restrictions or criteria . . . .” Id.

On August 2, 2007, the federal defendants moved to dismiss the first

amended complaint as supplemented by the District. The motion argued that the

supplement “should be dismissed as unripe and for lack of subject matter

jurisdiction because the Plan d[id] not prohibit new water diversions within the

Monument and the District otherwise c[ould not] establish that the BLM ha[d]

denied or unreasonably delayed the processing of the [District’s] Application.”

Id. at 487. In the memorandum in support of the motion, the federal defendants

acknowledged that the District had filed its Application on June 5, 2006. The

14
federal defendants alleged, however, that the Monument manager notified the

District on June 26, 2006, “that additional information and documentation

[including a location map] needed to be submitted before the Application could be

processed.” Id. at 495. The Monument manager allegedly further advised the

District that (a) the processing time would vary depending upon whether the

District or the BLM prepared the environmental assessment (EA), (b) there were

no restrictions in the Plan that would preclude issuance of the right-of-way

(assuming the District could establish that the diversion of water would not

damage water resources within the Monument or conflict with the objectives of

the Plan), and (c) it would be premature to offer any opinion on the likelihood

that the Application would be approved. Id. at 496. According to the federal

defendants, the District subsequently completed its Application and the

Monument Manager, on July 31, 2007, sent a letter to the District advising it “that

upon payment of the required processing fee, the BLM w[ould] begin processing

the Application and preparing an [EA] to analyze the action . . . .” Id. at 498.

Based upon these allegations, the federal defendants’ motion argued that the

District’s challenges to the water provisions of the Plan were unripe and should

be dismissed for lack of subject matter jurisdiction.

On August 24, 2007, SUWA filed a motion for judgment on the pleadings

arguing that, “for the reasons set forth in the” federal defendants’ motion to

dismiss, the District’s supplemental complaint should “be dismissed for lack of

15
ripeness and failure to state a claim upon which relief c[ould] be granted.” Id. at

550.

On December 19, 2007, the district court issued an order granting the

federal defendants’ motion to dismiss and SUWA’s motion for judgment on the

pleadings. Id. at 711. In doing so, the district court opined “that the District’s

claims [we]re still premature” because its “Application [wa]s still pending before

the BLM,” id. at 713, and “the Utah State Engineer ha[d] not taken any final

action on a separate water right change application filed by the District with the

State Engineer in August, 2007,” id. at 714. In short, the district court noted that

“not much ha[d] changed since the Court issued its Memorandum Opinion, and

the District’s challenges to the water provisions of the Plan remain[ed] unripe and

premature pursuant to the terms of the Court’s prior ruling.” Id.

The District has since filed a timely notice of appeal from the district

court’s June 29, 2007, and December 19, 2007, orders.

The County plaintiffs’ appeal

On July 31, 2007, the County plaintiffs (all of the plaintiffs except for the

District) filed a motion asking the district court to certify, pursuant to Fed. R.

Civ. P. 54(b), “its Memorandum Opinion and Order dated June 29, 2007 as a final

order.” Id. at 472. On September 27, 2007, before any action was taken on their

Rule 54(b) motion, the County plaintiffs filed a notice of appeal from the district

court’s memorandum opinion and order entered on June 29, 2007, dismissing their

16
claims. Shortly thereafter, the district court issued a memorandum opinion and

order granting the County plaintiffs’ Rule 54(b) motion. 2 Id. at 683.

Consolidation of appeals

On February 4, 2008, we issued an order consolidating the two appeals “for

purposes of record creation, briefing, and court consideration.” Id. at 718.

II

Appeal No. 07-4207

The County plaintiffs, in Appeal No. 07-4207, contend the district court

erred in granting the federal defendants’ motion to dismiss and SUWA’s motion

for judgment on the pleadings. “We review a district court’s dismissal for lack of

subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) de novo.” Tsosie v.

United States, 452 F.3d 1161, 1163 (10th Cir. 2006). “A district court’s dismissal

for failure to state a claim under Fed. R. Civ. P. 12(b)(6) is also reviewed de

novo.” Id.

1) Did the district court’s summary dismissal violate Olenhouse?

The County plaintiffs first assert that the district court’s summary dismissal

of their claims, i.e., dismissing based solely on review of the first amended

complaint and motions, and without benefit of the administrative record, violated

2
On October 12 and 15, 2007, SUWA and the Federal Defendants filed
motions to dismiss the County plaintiffs’ appeal for lack of jurisdiction. In light
of the district court’s order granting the County plaintiffs’ Rule 54(b) motion, we
conclude the motions to dismiss are moot.

17
the procedures required by our decision in Olenhouse v. Commodity Credit Corp.,

42 F.3d 1560 (10th Cir. 1994). According to the County plaintiffs, the allegations

of their first amended complaint established that they had both constitutional and

prudential standing to challenge the BLM’s Plan, and thus the district court was

prohibited from summarily dismissing their complaint, and was instead required

to obtain the administrative record and review on the merits the challenged

agency action.

We readily reject the County plaintiffs’ arguments. It is true that in

Olenhouse we outlined the principles of judicial review of final agency action

under the Administrative Procedure Act (APA), 5 U.S.C. § 706. See 42 F.3d at

1573-74. Importantly, however, nothing in Olenhouse (or, for that matter, other

controlling case law or the APA itself) precludes an APA-based complaint from

being summarily dismissed pursuant to Federal Rule of Civil Procedure 12(b).

Indeed, Olenhouse is silent with respect to the propriety of motions to dismiss

APA-based claims. 3 Olenhouse aside, case law firmly establishes that APA-based

claims can, if appropriate, be summarily dismissed. E.g., Benzman v. Whitman,

523 F.3d 119, 132 (2d Cir. 2008) (concluding that district court “properly rejected

the sufficiency of all aspects of the Plaintiffs’ non-constitutional APA claims”).

3
Olenhouse prohibited only a district court’s “reliance on arguments,
documents and other evidence outside the administrative record,” as well as,
relatedly, the treatment of an APA-based claim “as a separate and independent
action, initiated by a complaint and subjected to discovery and a ‘pretrial’
motions practice.” 42 F.3d at 1579.

18
 We thus conclude, contrary to the County plaintiffs’ arguments, that the

district court did not err by dismissing the complaint pursuant to Rule 12(b) and

without obtaining or reviewing the administrative record.

2) Did the district court properly dismiss the County plaintiffs’ claims?

The County plaintiffs assert a host of challenges to the merits of the district

court’s order dismissing their claims. Chief among those is their contention that

the federal defendants have a duty, prior to closing or managing any roads on

purported R.S. 2477 rights-of-way, to conduct administrative determinations

regarding the validity of those purported rights-of-way. Id. at 38. “These

determinations,” the County plaintiffs argue, “are necessary for the Federal

Defendants to comply with their FLPMA duty to manage public lands ‘subject to

valid existing rights’ and without diminishing or reducing any right-of-way

granted prior to 1976.” Id. at 38-39. We disagree.

Prior to 1994, “the BLM staunchly maintained that it lacked authority to

make binding decisions on R.S. 2477 rights of way.” S. Utah, 425 F.3d at 754.

“In 1994,” however, “the BLM changed course and proposed comprehensive

regulations governing R.S. 2477 rights of way,” including “an administrative

procedure by which the BLM would adjudicate the validity of R.S. 2477 claims.”

Id. at 756. “Congress responded with an appropriations provision prohibiting the

Department of the Interior from issuing final rules governing R.S. 2477 . . . .” Id.

“The General Accounting Office has [since] concluded that this provision has the

19
status of permanent law.” Id. (citing GAO Opinion B0277719 at 1-5 (Aug. 20,

1997)). Consequently, we have held “that the BLM lacks primary jurisdiction” to

conclusively adjudicate R.S. 2477 claims (such as those now asserted by the

County plaintiffs). Id. at 757.

In light of this background, we readily conclude that the County plaintiffs’

allegations failed to state a claim upon which relief could be granted under the

APA. Section 706(1) of the APA empowers a district court to “compel agency

action unlawfully withheld or unreasonably delayed[.]” 5 U.S.C. § 706(1). In

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004), the Supreme

Court held that “a claim under § 706(1) can proceed only where a plaintiff asserts

that an agency failed to take a discrete agency action that it is required to take.”

Here, as noted, we have expressly held, in recognition of binding federal law, that

the BLM lacks the authority to conclusively resolve R.S. 2477 claims. S. Utah,

425 F.3d at 757. Thus, the County plaintiffs are not entitled under the APA to an

order directing the BLM to resolve all outstanding R.S. 2477 claims as part of its

Plan.

In their appellate brief, the County plaintiffs attempt to disclaim any

interest in having the BLM conclusively “adjudicate ownership” of the purported

R.S. 2477 rights-of-way. Aplt. Br. at 42. According to the County plaintiffs, all

they are seeking instead is an order directing the BLM to “consider,” for its own

planning purposes, whether or not the County plaintiffs’ purported R.S. 2477

20
rights-of-way are valid. Id. at 41. More specifically, the County plaintiffs allege

that the BLM has a duty to administratively adjudicate, by relying at least in part

on “preliminary determin[ations]” it made “during its prior [pre-Plan and pre-S.

Utah] transportation planning, any and all R.S. 2477 claims the County plaintiffs

may have. Id. at 45. In our view, however, neither the statute, 43 U.S.C. § 1701

note (providing that “all actions by the Secretary concerned under this Act shall

be subject to valid existing rights”), nor the regulation, 43 C.F.R. § 2801.4

(2000) 4, the County plaintiffs cite to imposes such a requirement. Further,

although plaintiffs also cite to a handful of decisions issued by the Interior Board

of Land Appeals, Aplt. Br. at 39-41, none of those decisions impose any type of

binding requirement on the BLM that would be enforceable under the APA.

To be sure, we recognized in S. Utah that the BLM possessed the authority

to “determin[e] the validity of R.S. 2477 rights of way for its own purposes.” 425

F.3d at 757. But, importantly, nothing in federal law requires the BLM to do so.

Thus, even though the County plaintiffs might prefer that the BLM informally

4
This regulation, entitled “Right-of-way issued on or before October 21,
1976,” provided:
A right-of-way issued on or before October 21, 1976 [the date
Congress repealed R.S. 2477], pursuant to then existing statutory
authority [R.S. 2477] is covered by the provisions of this part unless
administration under this part diminishes or reduces any rights
conferred by the grant or the statute under which it was issued, in
which event the provisions of the grant or the then existing statute
shall apply.
43 C.F.R. § 2801.4 (2000).

21
adjudicate their purported rights-of-way 5, they may not, as the district court

correctly concluded, “shift their burden as R.S. 2477 claimants or shortcut the

existing processes for determining their unresolved R.S. 2477 claims by insisting

that the BLM import its [internal and] preliminary road inventory work on

unresolved R.S. 2477 claims in 1991 and 1993 [prior to this court’s decision in S.

Utah] into its planning processes in formulating the 1999 Management Plan.”

App. at 441.

Lastly, the County plaintiffs contend that the district court had subject

matter jurisdiction to review what they refer to as their “due process claims under

the APA.” Aplt. Br. at 43. In support of this contention, the County plaintiffs

again refer to the so-called “long-standing procedural requirement that the Federal

Defendants consider valid existing rights during planning . . . .” Id. at 44. As

explained above, however, we are aware of no provision of federal law that

imposes such a procedural requirement.

In connection with this contention, the County plaintiffs also cite, in

passing, to the FLPMA’s directive that “[l]and use plans of the Secretary under

this section shall be consistent with State and local plans to the maximum extent

he finds consistent with Federal law and the purposes of this Act.” 43 U.S.C. §

5
We note that the County plaintiffs’ complaint did not identify, with
specificity, any alleged R.S. 2477 rights-of-way, nor did it identify or challenge
any particular road closures that may have occurred simultaneously with, or
subsequent to, the Plan’s issuance.

22
1712(c)(9). But this directive does not help the County plaintiffs. To begin with,

it gives the Secretary of the Interior discretion to determine the extent to which

the agency’s land use plans are consistent with State and local plans. In light of

this discretion, it is doubtful that the provision was intended to, or could

reasonably be construed as, creating a “procedural right” enforceable by state or

local governmental entities. In any event, even assuming that the provision did

create some type of “procedural right,” that right was protected in this case

because the Plan expressly recognizes that the County plaintiffs may have valid

R.S. 2477 rights-of-way and acknowledges that any such rights-of-way will be

honored by the BLM.

3) Does the Quiet Title Act preclude the relief requested by the

County plaintiffs?

The County plaintiffs contend that the Quiet Title Act, which they concede

is the exclusive means for adverse claimants to challenge the federal

government’s title to real property, does not preclude their claims because they

are “not request[ing] an adjudication of title” to the purported R.S. 2477 rights-

of-way, but rather are “seek[ing] declaratory and injunctive relief requiring the

Federal Defendants to comply with statutory procedures and duties before taking

agency action.” Aplt. Br. at 49.

Although it is true that nothing in the Quiet Title Act necessarily precludes

23
the type of relief the County plaintiffs now assert they are seeking 6, that does not

change the fact that they have failed to point to any provision of federal law that

would require the BLM to perform the actions they are seeking (i.e., the non-

binding administrative determination of their purported rights-of-way). In other

words, Quiet Title Act aside, the County plaintiffs’ APA-based claims lack merit.

4) The County plaintiffs’ other claims

In the proceedings below, the County plaintiffs also complained that (a) the

Plan’s restrictions on “off-highway vehicles” (OHV’s) infringed on their

purported R.S. 2477 rights-of-way, and (b) the BLM failed to coordinate its

formulation of the Plan with county officials and existing county plans for the

purported rights-of-way. The district court, in its June 29, 2007 memorandum

opinion and order, dismissed both claims. With respect to the OHV-related claim,

the district court concluded that it “necessarily implicate[d] questions of title,

viz., the existence and historical scope of the Counties’ claimed R.S. 2477 rights-

of-way within the Monument’s boundaries.” App. at 443. Because “[t]he

Counties ha[d] not pleaded their existing OHV claims under the Quiet Title Act,”

the district court concluded, “they must be dismissed for want of jurisdiction.”

Id. As for the “failure to coordinate” claim, the district court concluded that “the

alleged injury-in-fact flowing from the BLM’s alleged failure to coordinate the

6
In our view, the County plaintiffs failed to clarify in their district court
pleadings that they were seeking only an informal, non-binding administrative
determination of their purported rights-of-way.

24
formulation of the Management Plan with county officials and existing county

plans appear[ed] to be indistinguishable from that alleged with respect to the

Plan’s restriction of off-highway vehicles or the status of the Counties’

unresolved R.S. 2477 claims within the Monument,” and thus “[t]hese allegations

. . . [could not] confer standing upon the Counties or jurisdiction upon th[e] Court

where the same has already been found to be lacking.” Id.

In their appellate brief, the County plaintiffs do not specifically address

either of these claims and thus have presumably waived those claims. Even

assuming otherwise, we find the district court’s analysis persuasive.

Appeal No. 08-4014

The District, in Appeal No. 08-4014, contends that the Plan’s water

resource “exception criteria” are unlawful and have impaired the District’s water

rights. According to the District, “[t]he Utah State Engineer has exclusive

jurisdiction to decide water resource damage or conflicts,” and “[t]he District’s

water right” in the Monument “is an appropriated water right, the uses of which

are exclusively governed by the Utah State Engineer.” Aplt. Br. at 54. The

District contends that it “seeks judicial review of the agency decisionmaking

culminating in the Federal Defendants’ decision to keep third-parties’ water in the

Monument, and to assume management of water resources.” Id. at 55. The

District also contends that “[t]he ‘exception criteria’ are being enforced upon [its]

water rights to its detriment . . . and there is no further refinement of the agency’s

25
position to warrant delaying review.” Id.

The problem with the District’s claim, as the district court aptly concluded,

is that it fails to allege “an actual injury-in-fact resulting from the challenged

[Plan] provisions.” App. at 445. The Plan provisions addressing the diversion of

water to locations outside of the Monument expressly acknowledged the District’s

existing water rights: “There is an existing small-scale diversion of groundwater

out of the Monument for the domestic water supply of the nearby town of

Henrieville. This Plan does not prohibit the continuation of this diversion, nor its

expansion, if necessary, to meet the municipal needs of population growth in

Henrieville.” Plan at 32. These provisions, which the District all but ignores,

clearly protect and preserve the District’s existing water rights. Thus, we

conclude the District lacks standing to challenge these Plan provisions. See

Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 128 S. Ct. 2531, 2535 (2008)

(“[I]n order to have Article III standing, a plaintiff must adequately establish . . .

an injury in fact”).

That leaves, at best, only the District’s interests in expanding its use of

water from within the Monument. As to that issue, the Plan stated: “Any

proposed new groundwater diversion to meet Henrieville’s municipal needs could

be approved, consistent with the Plan, if the BLM and the Utah State Engineer

complete a joint analysis to determine that such development would not adversely

impact springs or other water resources within the Monument, and the BLM

26
completes the usual NEPA analysis.” Id. Apparently acknowledging the validity

of this provision, the District, on June 5, 2006 (nearly seven months after this

action was initiated), “submitted an application [to the BLM] for a [FLPMA] Title

V right-of-way to drill a 12-inch well and to construct an access road, pipeline

and electrical service line to convey water from the well to the District’s Johnson

Canyon Water system.” 7 App. at 271 (affidavit of Michael Noel). Because the

District’s Application remains pending before the BLM, any potential claim

arising out of the BLM’s final decision is premature. See Ohio Forestry Assoc.,

Inc. v. Sierra Club, 523 U.S. 726, 732 (1998) (noting that the ripeness

requirement is designed to protect agencies from judicial interference until an

administrative decision has been formalized and its effects felt in a concrete way

by the challenging party). In other words, it is entirely possible that the BLM

will grant the District’s Application, in which event the District will have

suffered no injury.

The judgment of the district court is AFFIRMED. The appellees’ motions

to dismiss in Appeal No. 07-4207 are DENIED as moot.

7
The District concedes in its opening appellate brief that “FLPMA Title VI
governs the terms and conditions for obtaining rights-of-way for water facilities
crossing public lands, including lands within the Monument.” Aplt. Br. at 22-23.

27
07-4207, 08-4014 Kane County v. BLM

HENRY, Chief Judge, concurring.

I concur in my colleagues’ fine opinion, but write separately to remind the

Counties and the BLM of another avenue that is open to them.

I agree with the majority that the Counties have failed to allege a concrete

and particularized injury stemming from BLM’s adoption of the Management

Plan. In their complaint, the Counties have not identified any specific rights-of-

way they contend have been infringed by the Plan. The district court, which we

affirm, held that “[a] road closure affecting a specific route claimed to be an R.S.

2477 right-of-way invites a protest, an administrative appeal, or the

commencement of a civil action.” Dist. Ct. Op. at 21. Nothing in today’s opinion

precludes such a particularized challenge.

In a challenge such as the one the Counties launched here, depending on

the procedural context, entities claiming infringement of their established rights-

of-way may be entitled to invoke the protections of the Federal Land Policy

Management Act of 1976 (FLPMA), which provides that “all actions by the

Secretary concerned under this Act shall be subject to valid existing rights.” Pub.

L. No. 94-579, § 701(h), 90 Stat. 2743, 2787, reprinted in 43 U.S.C.A. § 1701

historical note (“Savings Provisions”). The federal agency is not entitled, under

the FLPMA and the Administrative Procedures Act (APA), to close existing

county roads asserted to be R.S. 2477 rights-of-way without a reasoned and

nonarbitrary basis for doing so, such as an administrative determination, based on
substantial evidence, that the asserted right-of-way is invalid or that the claim

exceeds the scope of an acknowledged right-of-way. See SUWA v. BLM, 425 F.3d

735, 757 & n.12 (10th Cir. 2005) (noting that administrative determinations

regarding R.S. 2477 claims are used for “land-use planning purposes” and citing

as an example a Department of Interior decision requiring an administrative

determination in advance of closing a road claimed to be an R.S. 2477 right-of-

way).

Specifically, we encouraged and outlined an interactive process that is
required to put matters at issue:
[W]hen the holder of an R.S. 2477 right of way across federal land
proposes to undertake any improvements in the road along its right of
way, beyond mere maintenance, it must advise the federal land
management agency of that work in advance, affording the agency a fair
opportunity to carry out its own duties to determine whether the
proposed improvement is reasonable and necessary in light of the
traditional uses of the rights of way as of October 21, 1976, to study
potential effects, and if appropriate, to formulate alternatives that serve
to protect the lands. The initial determination of whether the
construction work falls within the scope of an established right of way
is to be made by the federal land management agency, which has an
obligation to render its decision in a timely and expeditious manner.
The agency may not use its authority, either by delay or by
unreasonable disapproval, to impair the rights of the holder of the R.S.
2477 right of way. In the event of disagreement, the parties may resort
to the courts.

Id. at 748 (footnotes omitted) (emphasis supplied).

As noted, these administrative determinations are not binding, and may be

challenged in court on a de novo basis. Id. at 757-58. Such a determination,

though not final or binding, is the first step in what this court called the system of

“coordination” and “mutual accommodation” required of the holder of an

2
easement and the owner of a servient estate. Id. at 746-48. It is inconsistent with

this system for one party–whether it is the County or the BLM–to make unilateral

changes in the status quo without first considering the legitimate interests of the

other. See id. at 749 (“‘Bulldoze first, talk later’ is not a recipe for constructive

intergovernmental relations or intelligent land management.”). This necessarily

requires the parties to make a reasoned determination regarding the existence and

scope of the claimed easement, and the “reasonableness and necessity” of any

changes, id. at 746-47, subject to judicial review in accordance with the APA and

other law.

If the agency concludes that no valid right-of-way exists or that the

County’s assertion of rights exceeds the scope of any easement, it may be

necessary for the federal agency to bring a trespass action or the County to bring

a claim under the Quiet Title Act. The APA requires only that the agency act in a

manner that is not arbitrary and capricious—such as disregarding undisputed

rights-of-way or infringing asserted rights-of-way without a reasoned basis for

doing so. It does not afford the claimant an opportunity for ultimate resolution of

a genuinely disputed property claim against the United States. That is the

province of the Quiet Title Act. If the parties follow the procedures entailed by

Utah property law and explained by this court in SUWA, in a “spirit of mutual

accommodation,” Restatement (Third) of Property: Servitudes, § 4.10 cmt. a

(1998), quoted in SUWA, 425 F.3d at 748, we suspect that many disputes will be

3
resolved informally and amicably, as they have been for decades.

At oral argument, we delved into whether or not the “SUWA process” was a

precondition to litigation, and whether the parties have “tried to work it out.” The

Counties responded that they had tried, and that “letters have been written and

there’s no response [from BLM].” Similarly, BLM read the SUWA opinion to

instruct “that the parties ought to consult and try and work it out before coming to

court.” BLM’s view at oral argument was that it has “tried to do that.”

In its brief, however, BLM maintained that, because of the vague and

undeveloped nature of the Counties’ claims, we should “requir[e them] to either

follow the process described in SUWA v. BLM, 425 F.3d at 746, or bring quiet

title actions.” Aple’s Br. at 16-17. Either option “would permit further factual

development necessary for the proper resolution of R.S. 2477 issues.” Id. at 17.

I find BLM’s stance at oral argument difficult to square with BLM’s brief. In any

event, it seems to me that the parties have not complied with the spirit of the

interactive process outlined in SUWA.

Both parties need to utilize the “system of coordination” we described

there, SUWA, 425 F.3d at 746, via “consultation, communication, and cooperation

. . . with [the] . . . counties.” 1 See March 22, 2006 Memorandum from the

Secretary of the Department of the Interior, at 5 (quoting in part SUWA, 425 F.3d

1
This process is based on Utah law. See SUWA, 425 F.3d at 748 (citing
Utah Code Ann. § 72-5-303 and the Restatement (Third) of Property: Servitudes,
§ 4.10 cmt. a (1998)).

4
at 748).

The American West is a looming space, and the history of its pioneers’

tangled relationship with Washington bureaucrats, and the resulting animosity,

still looms large. The historian Bernard DeVoto summed up the traditional

Western attitude toward the federal government as “[G]et out and give us more

money.” See Bernard DeVoto, The West Against Itself, 194 Harper’s Magazine

1-13 at 8 (January 1947). Devoto’s bon mot should not be misunderstood: it

recognized merits and equities on both sides. As litigation is expensive and times

are hard, SUWA’s practical advice should be heeded; additionally, if it is not

heeded, an action might not be ripe for adjudication.

Thus, while the Counties are not entitled to challenge the Management Plan

on the basis of the generalized claims they set forth in this complaint, by raising

specific cases under SUWA’s rubric, they have ample opportunities to obtain

reasoned consideration of any particularized claim they may have that road

closures and restrictions in the Monument violate FLPMA’s guarantee of valid

existing rights.

5