IN COURT THAT A COUNTY CANNOT
EVEN RUN A WATER TRUCK DOWN A RECOGNIZED RS 2477 ROAD
TO SUPPRESS DUST WITHOUT FIRST GETTING PERMISSION FROM AN
EXECUTIVE BRANCH AGENCY!
Editor's note: The following is a transcript of an
exchange between Federal District Judge
Jenkins and a federal government attorney during one of the hearings on
the Burr Trail
Road litigation in Utah. It took place in early 1997. Judge Jenkins is
probing the practical
length to which the federal government claims that Garfield County, the
holder of the RS
2477 right-of-way (the "dominant estate"), must get permission from the
federal government
(the "servient estate"), before it can take any action on its road.
The federal government's position is that before
Garfield County can do something even as
innocuous as taking a water truck down the road to suppress dust, it
must get the federal
government's permission! And this is on a road the federal government
has already
conceded is on a valid RS 2477 right-of-way! In other words, it is the
position of the Executive Branch that there are NO rights associated
with the right-of -way
granted by Congress directly to Garfield County. This is an absolutely
outrageous example
of the Executive Branch refusing to recognize case law, common law and
even its own
regulations!
THE COURT: How long would it take you, for example, to sit
down with counsel, who has got
nothing else to do, and define together those elements that you
acknowledge are dominant estate
elements and those elements that you acknowledge --acknowledge are
subservient estate
elements?
MR. ROBINSON: I would guess we would be and we have never really sat
down and chatted about the case all that much, we haven't, but I would
guess
that would be an almost impossible task for us to agree upon.
THE COURT: Well, even if you agree
MR. ROBINSON: That we could do.
THE COURT: If you agree to disagree that way you isolate what it is
that you
have some genuine disagreements on and it is a useful exercise, I
think.
MR. ROBINSON: I think just to be plain, it is the Park Service's
position in this
case that any maintenance activities would be subject to the
supplicant, as you
used the term, coming to the National Park Service. And I would expect
that
that position will be opposed strenuously by the county.
Nonetheless, if the Court deems that that would be useful--
THE COURT: If you sweep that aside and you just
say dominant subservient and you say this is what the dominant estate has this is what these folks can do.
MR. ROBINSON: Without us?
THE COURT: Oh yeah, sure.
MR. ROBINSON: It would, I don't mean to be presumptuous, but I
believe the
answer is nothing. It would be a short list.
THE COURT: Okay, fine. Then you indicate then that there is no
dominant
estate when you tell me that.
MR. ROBINSON: They have a right-of-way which may not--
THE COURT: If you say you can't do a thing obviously they can, they
have
been running cars down there for decades.
MR. ROBINSON: You're right.
THE COURT: At least run a car down there.
MR. ROBINSON: I'm thinking purely in terms of the maintenance,
upkeep,
improvement, construction, widening of the footprint and what can be
done in
those circumstances where the Park Service would not have to be a party
and
give approval and to those sets of circumstances the answer would be
nothing. You must --
THE COURT: You can't run a water truck down there, can't put in a
conduit
down there?
MR. ROBINSON: Those are things that you can't do without talking to us. Now, of course, between the Park Service and the county, I'm sure they would come up with a...
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