Defendants Garfield County, Louise Liston, D. Maloy Dodds, Clare M. Ramsay, and Brian B. Bremner, (collectively, the "County") by and through counsel, hereby submit the following Memorandum of Points and Authorities Regarding the Rights of the Parties Concerning the Boulder-to-Bullfrog Road (the "Road").

That Garfield County (the "County") holds an easement over Capitol Reef National Park should not be in question in this case. Sierra Club v. Hodel, 675 F. Supp. 594, 605 (D. Utah 1987). Rather, the crux of this dispute concerns what rights that easement provides the County, as the dominant estate holder, and how the exercise of those rights is to be balanced against the interests of the Park, as the servient estate holder. More specifically, this case concerns whether the County, before exercising its rights within the Park, must obtain the Park's consent. The answer to this question -- that consent need not be obtained -- flows inevitably from a proper understanding of the legal interests of the parties.

The underlying premise of plaintiff's contentions in this suit is that the County's right-of-way across the Park is inconsistent with the purposes for which the Park was created, if the Park does not get to control the activities that take place on the Road. That premise is flawed.⁽¹⁾ That premise starts with the Park's broad management powers and assumes that everything else must give way.

The proper approach to this issue, instead, first requires delineation of the County's rights regarding the Road, in light of Congress' intent in 1866. Sierra Club v. Hodel, 848 F.2d 1068, 1082 (10th Cir. 1988) (policies supporting later imposed statutory scheme not relevant to R.S. 2477's construction). Then, the controlling issue becomes the effect of the subsequent creation of the Park on those rights. Such approach is consistent with the established principle of statutory construction that all relevant statutes are to be given effect.

As discussed below, two statutory schemes are involved in this situation: the congressional grant of rights-of-way under R.S. 2477 and the legislation establishing the Park along with the Park's organic act. Given those relevant statutes, the task at hand is "to reconcile allegedly conflicting statutes and to give effect to the language and intent of both, so long as doing so does not deprive one or the other of its essential meaning." Wilderness Society v. Morton, 479 F.2d 842, 880 (D.C. Cir. 1973); accord City & County of Denver v. Bergland, 695 F.2d 465, 476 (10th Cir. 1982) (citing Watt v. Alaska, 41 U.S. 259, 267 (1981)). The Morton Court continued, "Absent specific indication to the contrary, the only reasonable inference is that Congress intended all of its statutes to have effect . . .." Id. at 881. Thus, Congress' act of 1866 must be given effect, as Congress intended it to apply in 1866, unless subsequently limited by Congress, and not be brushed aside as an inconvenience.

In this case, the statutory schemes are harmoniously reconciled by delineating the threshold where Park regulatory authority is triggered. Congress set that threshold according the scope of the County's easement. As long as the County acts within the scope of its easement, the Park lacks authority to regulate such activities. If, however, the County were to act beyond the scope of its rights, the Park could regulate such activities.

A. The County's Interest

In 1866, Congress made on offer of rights-of-way across federal lands. See Act of July 26, 1866, c. 262 Section 8, 14 Stat. 253, 43 U.S.C. Section 932 (1970) ("R.S. 2477"). Garfield County accepted that offer for the Road. That acceptance required no federal action. Hodel, 848 F.2d at 1078 (citing 43 C.F.R. Section 2822.1-1 (1979); 43 C.F.R. Section 244.55 (1939)). In other words, acceptance of the grant and enjoyment of the rights obtained thereby are not tied to federal action or approval.

The 10th Circuit Court has discussed the bundle of rights acquired by the County pursuant to that grant. That bundle "is defined by the physical boundaries of the right-of-way as well as the uses to which it has been put." Hodel, 848 F.2d at 1084. That bundle includes "that which is reasonable and necessary to provide safe travel." Id. In more definite terms, this Court stated that the bundle of rights allowed the Road to "be widened as necessary to meet the exigencies of increased travel, at least to the extent of a two-lane road." Id. at 1083.

It is clear that an easement carries with it the right to maintain the easement. Jeremy v. Bertagnole, 116 P.2d 420, 423 (Utah 1941); Thompson, at 666-67 n.1 ("He that hath the use of a thing ought to repair it."). Regarding R.S. 2477 rights-of-way in particular, that right to maintain must be construed liberally. The Supreme Court stated, "Government concurrence in and assent to the establishment of these roads are so apparent, and their maintenance so clearly in furtherance of the general policies of the United States, that the moral obligation to protect them against destruction or impairment as a result of subsequent grants follows as a rationale consequence." Central Pac. R. Co. v. Alameda County, 52 S.Ct. 225 (1932).

What, then, is included in the right to maintain an easement? As the Utah legislature aptly stated: "'Maintenance' means the performance of all things necessary to keep a public highway in serviceably condition." Utah Code Ann. 27-12-2(6) (1963). That right has been construed to include the ability to "grade, gravel, plough, or pave such way." 25 Am. Jur. 2d, Easements, Section 85 (1966); Bors v. McGowan, 68 N.W. 2d 596 (Neb. 1955); Thompson v. Williams, 249 S.W.2d 238 (Tex Civ. App. 1952).

In order to keep such surface in good repair, as would be reasonable and necessary to ensure safe travel, maintenance would necessarily include the lesser rights of "dust control, stabilization, adding aggregate, blading, and reshaping." National Association of County Engineers, Action Guide Series, v. III-1 at 5-1, "Maintaining Aggregate Surfaces," (1992). Similarly, maintenance of roadway drainage systems is necessary to accommodate rainfall and snowmelt. Such systems include, by way of example, roadway cross sections, shoulders, ditches, culverts and headwalls. Id. at 4.2 "Surface Drainage Maintenance."

Likewise, it has been held that maintenance of an unobstructed view down a road is a reasonable and necessary measure to ensure safety on an easement. Sparks v. Douglas County, 695 P.2d 588 (Wash. Ct. App. 1985).

A standard for determining whether activities are reasonable and necessary to ensure safe travel for R.S. 2477 rights-of-way has already been identified by this Court. In Hodel, the district court stated: "Generally, AASHTO sets standards for width, speed, stopping sight distance, passing sight distance, shoulders, grade, and drainage." 675 F. Supp. at 607 n. 34.⁽²⁾ Significantly, the Court also stated, "It should also be noted the road as proposed would meet the National Park Standards." Id.

. B. The Park's Interest

On January 20, 1969, President Lyndon Johnson issued Presidential Proclamation 3888, 83 Stat. 922, expanding the boundary of Capitol Reef National Monument ("CRNM") to include the land over which the Road passes. Plaintiff's Complaint for Damages and Declaratory and Injunctive Relief, at paragraph 9. On December 18, 1971, Congress enacted Public Law 92-207, 16 U.S.C. 273 (1988), to abolish CRNM and establish, in its stead, the Park. Id. at paragraph 10.

The Park is subject to the duties expressed by Congress in both the legislation creating the Park and the National Park Service Organic Act of 1916, 16 U.S.C. Sections 1-18f (1992). Id. Generally speaking, while those acts require the Park to avoid "derogation" of park values, they also explicitly subject the Park authority to prior valid existing rights. Thus, the Park values are subject to the valid existing right, not vice versa, and the Park is required to honor those rights as a baseline in its management decisions.

C. How the Interests Are Balanced

As a fundamental tenet of the common law, the respective rights of the dominant and servient estate holders are limited by the rights of the other party, so that both estates may be reasonably enjoyed. Big Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148, 158 (Utah 1946); United States v. O'Block, 788 F.2d 1433 (D. Utah 1986) (interests must be balanced, and, at best, an accommodation of interests should occur); Thompson on Real Property, v.II, p. 663. The dominant estate holder cannot impose additional burdens on the servient estate, and likewise the servient estate holder cannot interfere with reasonable and prudent exercise and enjoyment of the easement. Salt Lake City v. J.B. & R.E. Walker, Inc., 253 P.2d 365, 368 (Utah 1953); Thompson, at 655.

In this case, application of common law principles establishes that an additional burden would not be imposed on the servient estate so long as the County conducts activities included within its bundle of rights. Activities reasonable and necessary to ensure safe transportation constitute acceptable (anticipated) burdens.

A new consent of the servient estate holder to activities within the dominant estate holder's bundle of rights is not required, because the consent was granted at the time of conveyance and does not have to be updated. See Big Cottonwood, 174 P.2d 148; Hatch Bros. Co. v. Black, 165 P. 518 (1917) (consent of the owner is previously given); Thompson, at 657. Such has been the nature of the relationship between and practice of the parties over the history of this Road.⁽³⁾

Plaintiff argues that application of common law principles is not so straight-forward in this case, because the servient estate is a national park, subject to congressionally-imposed management standards. In attempting to make such a distinction, plaintiff ignores the clear intent of Congress.

The first five words Congress penned in creating Park are, "Subject to valid existing rights." 16 U.S.C. section 273 (a). The terms "subject to valid existing rights" denotes Congress' intent to protect property interests previously acquired under prior law. See e.g., Ickes v. Virginia-Colorado Dev. Corp., 295 U.S. 639, 644-46 (1935). No matter how broadly plaintiff wishes to construe its management authority, Congress intended that authority to be exercised subject to valid existing rights -- in other words, subject to the County's valid existing rights "to make reasonable and necessary improvements within the boundaries of the right-of-way." Hodel, 848 F.2d at 1086 n.16.

Whether Congress could have given the Park the authority to control activities on the Road is not an issue in this case. As the statutes reveal, Congress did not do so.

Congress did give the Park authority to regulate activities on the servient estate, i.e., those activities which exceed the County's bundle of rights.⁽⁴⁾ In other words, if the County were to exceed its valid existing rights, the Park's authority would be triggered. However, as long as the activities are reasonable and necessary to ensure safe travel, the park values, as Congress defined them, were set up to accommodate such activities.

This is the crucial distinction that the Park misses when it cites cases such as United States v. Vogler, 859 F.2d 638 (9th Cir. 1988), for the proposition that valid existing rights can be regulated. In Vogler, a private plaintiff⁽⁵⁾ claimed that the Park had no regulatory authority to keep him from instituting extensive new damage to the Park lands in furtherance of a mining claim. In effect, plaintiff claimed he could do whatever he wanted and, according to things such as the United Nations Charter, no one could do anything about it. 859 F.2d at 642.

Here, Garfield County acknowledges that it must not exceed its rights and that it should seek to minimize impacts on Park values. By the same token, Garfield County cannot be required to acquiesce to plaintiff's apparent contention that the Park's authority is without bounds. The County asserts that the legal boundary between those juxtaposed rights is established by the County's bundle of rights. Within that bundle, the County is free to perform reasonable and necessary activities. Hodel, 675 F. Supp. at 605 n. 31 ("As long as the project stays within the county's right-of-way, no BLM authorization is needed for construction to proceed."); see also City and County of Denver v. Bergland, 695 F.2d 465, 479 (1983)). Outside that bundle, the Park is allowed to regulate activities.

Congress' actions, as well as fundamental principles of state law, establish that Park consent is not needed for activities conducted within the roadway prism established by applicable safety standards. The Park does not have regulatory authority over such activities.

D. Whether Activities Are Within the County's Bundle of Rights

The United States wants to focus on who determines whether activities fall within the County's bundle of rights. Clearly, both parties have a role to play at the interface between the right-of-way and legitimate Park values. But, in order to determine when the Park has a legitimate role to play in dealing with the prior valid existing right-of-way, it is necessary to address the standards which apply to the right-of-way. The Park has refused to do so.

Plaintiff focuses its attention on whether notice from the County to the Park might be required in advance of Road maintenance or improvement, in addition to its contention that consent of the Park is a prerequisite for certain other activities. However, the question of notice is not at issue in this case. The facts establish that the Park had notice of Garfield County's intended actions and failed to assert any legitimate Park resource that might be impacted by Road maintenance which was clearly reasonable and necessary, in compliance with applicable standards and which took place within the existing road prism.⁽⁶⁾

The central question in this case addresses the standards to be applied in making that determination. And where, as in this case, the Park has been unable to cite to the County or to the Court a legitimate Park standard or value that overrides the obvious public interest in meeting applicable safety standards, there is no basis for the Park to engage in any review procedure.

Park authority has not been triggered by any action taken by Garfield County in connection with its recent work on the Road. In the absence of such authority, there is no basis for the Park to interfere with duly constituted decisions made by the County Commission.

Where the County utilizes standards set by the Utah Department of Transportation to apply to this Road, and stays within the roadway prism set by such standards, activities to maintain and improve the Road are clearly reasonable and necessary to ensure safe travel. The Park has no authority to interfere with such activities and, therefore has no basis to engage in any administrative procedure. Where, as in this case, the County has remained within the existing disturbed area and the Park has not articulated any Park resource which is not already subject to the right-of-way which would be impacted by the County's action, there is no basis for Park regulatory authority.

DATED this 10th day of February, 1997.

___________________________________

Barbara Hjelle

Wallace A. Lee

Ronald W. Thompson

Stephen H. Urquhart

Counsel for Garfield County, et al.

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ENDNOTES

1. That premise also will inevitably lead the Park to disregard and devalue the County's rights. Such disregard is clearly evidenced by the fact that the Park has created new definitions which apply only to this Road, instead of honoring the applicable state safety standards. In fact, the Park has not even honored its own road standards in its dealings in this case. By attempting to impose arbitrary decisions, instead of recognizing set standards, the Park is attempting to reduce the scope of the right-of-way and to wrest effective control of the Road away from the County.

2. The standards set by the American Association of State Highway and Transportation Officials (AASHTO) are incorporated into standards applicable to this Road by the Utah Department of Transportation under Utah law.

3. Prior to institution of this action, it is doubtful that the idea of consent was ever suggested in relation to the types of activities involved herein. Historically, the relations between the parties have been based on adherence to common law principles regarding easement rights. The Park has notified the County of any concerns it has, limiting those concerns to methods by which the exercise of the right could reasonably be modified without being reduced, and the County has accommodated those concerns. It is only with the new ardor of the Park to take control of the Road, a complete alteration in the procedures applied to the management of the right-of-way, as exercised throughout the history of the Park and before, that conflict has arisen.

4. The Park has stated that its authority to regulate stems, if not from its organic act or the Park legislation, then from the National Environmental Policy Act, the Endangered Species Act or the National Historic Preservation Act. These acts apply to Garfield County according to their terms and do not form an independent basis for Park authority to regulate the Road.

5. Here, it should also be pointed out, the actions that are being challenged are those of a duly-elected county government. Such actions are entitled to deference and should not be lightly set aside, in favor of the preferences of an administrative agency. Wilderness Society v. Morton, 479 F.2d 842, 882-83 (D.C. Cir. 1973). Protection of the sound federal-state relationship suggests that deference should be given to the County's determination of what is reasonable and necessary to ensure safety on the Road.

6. While Garfield County submits that it is not legally required to give notice of road maintenance actions which will occur within the existing disturbed area, it remains willing to provide information to the Park regarding its Road management activities as a matter of comity. This communication, however, should continue as it has in the past. It would be inappropriate, as a matter of law, to create a formal notice procedure in connection with normal Road maintenance actions.