Revised Statute 2477

The right of way for the construction of highways over public lands, not reserved for public use, is hereby granted.

“Defendants’ Opposition to Plaintiff’s Motion for Partial Summary Judgement”November 1, 1996







1. NPS ignores explicit statutory limitations on its authority

a. CRNP legislation

b. NPS Organic act

2. NPS must adhere to the principles of law which govern Garfield County’s R.S. 2477 right-of-way

a. CRNP is a servient estate, “subject to valid existing rights,” which can be exercised in accordance with the common law of easements

b. NPS does not have the authority to redefine the boundaries of the Boulder-to-Bullfrog Road right-of-way

3. The standards articulated by NPS have no basis in law, regulation, or common sense.

a. NPS regulations cannot contradict the principles of law that apply to R.S. 2477 rights-of-way.

b. NPS cannot reduce the scope of the right-of-way

c. Preparation of a Finding of No Significant Impact under NEPA cannot alter existing property rights




The material facts necessary to support Plaintiff’s Motion for Partial Summary Judgment (Pltf. Memo.) are disputed.(1) Paragraphs 1-57 respond by number to the numbered paragraphs in Plaintiff’s Memorandum. The remaining paragraphs in the statement of facts set forth additional material facts which Plaintiff omitted from its statement of facts.

  1. Disputed, in material part. While Garfield County does not dispute that Capitol Reef National Park (CRNP) includes certain areas that are rugged or consist of deep canyons, the source cited in support of paragraph 1 of Plaintiff’s statement of facts, does not, in fact, provide an adequate basis to support the statement proffered. The area traversed by the Boulder-to-Bullfrog Road, which is one of only five highways in Garfield County functionally classified as a major collector and thus ranks just below a state highway as a traffic route, clearly has highway access and thus is not remote in terms of access. Plaintiff’s Exhibit 1, at 9; Affidavit of Brian Bremner paragraph 4, attached hereto and incorporated by this reference as Exhibit 1.
  2. Disputed. While the Final Environmental Impact Statement, General Management Plan and Statement of Findings (GMP), labels the general vicinity away from the highway corridor as a “Wilderness Study Subzone,” the area traversed by the Road is not included within that zone, which is set back by a corridor clearly established to accommodate the Road. GMP at 15-16, a portion of which is attached hereto and incorporated by this reference as Exhibit 2. Furthermore, there are four development areas marked along the Road, including a ranger station, campground, and utility and residential/maintenance areas, all of which are clearly inconsistent with wilderness management. GMP at 14, 15-16, 34-35, 39-40, 45-50. See, Exhibit 3, attached hereto and incorporated herein by this reference. The National Park Service (NPS) preferred alternative in the GMP also contemplates construction of a parking area at the junction of the “Burr Trail” and the Upper Muley Twist road, a parking area for Lower Muley Twist, and a parking area “to accommodate oversize vehicles” at the ranger station at the junction of the “Burr Trail” and the Notom Road. Id. The campground proposed at the “Upper Burr Trail” would provide 10-20 sites. Id. NPS would install a well, construct “1 house, 1 duplex, and 3-bay maintenance building ” at the employee housing area just off the Road. See, item 28 shown on the General Development diagram and the specific site plan, pp. 39-40 and 47-50, Exhibit 3. The improvements proposed by NPS along or accessed by the Boulder-to-Bullfrog Road are clearly significant developments, estimated to cost a total of $1,318,000 (not including the amount of $912,000 the GMP estimated to construct a 2.5 mile, two-lane gravel road from the Boulder-to-Bullfrog Road to overlook Strike Valley). GMP at 34-35 (See, Exhibit 3).
  3. Garfield County does not dispute that the Boulder-to-Bullfrog Road traverses the southern portion of CRNP. However, the characterization of the terrain is not supported by the record cited by Plaintiff in Paragraph 3. 1995 Finding of No Significant Impact, Road Improvement Alternatives, Boulder-to-Bullfrog Road (Burr Trail) (1995 FONSI) at 1, attached hereto and incorporated by this reference as Exhibit 4.
  4. Disputed, insofar as it alleges that the Road “lies entirely on public lands.” The Road within CRNP also traverses a section of land owned by Garfield County. See, Exhibit 5; Bremner Affidavit paragraph 3.
  5. Disputed, insofar as it alleges that Garfield County’s interest is merely a “claim.” Garfield County owns a right-of-way along the entire length of the Boulder-to-Bullfrog Road. “The Burr Trail winds for sixty-six miles . . . [c]onnecting the town of Boulder with Lake Powell’s Bullfrog Basin Marina. . . . The combination of public uses and county maintenance has created a right-of-way in favor of Garfield County, pursuant to Congress’ grant of public land in R.S. 2477.” Sierra Club v. Hodel, 848 F.2d 1068, 1073 (10th Cir. 1988).(2)
    1. Garfield County does not dispute that NPS is limiting the scope of this Motion for Partial Summary Judgment to the portions of the Road traversing CRNP.
    2. Disputed, insofar as it implies that Garfield County instituted a new proposal for NPS review in 1993. In 1992, NPS proposed to address potential impacts of Garfield County’s long-standing, and oft-reviewed, plans for improvement of its right-of-way. Bremner Affidavit paragraphs 5-6.
    3. Disputed, insofar as it implies that Garfield County’s plans for the foreseeable future included paving the Road. The County’s plans for the Road through CRNP were designed to bring the roadway to a consistent width of 28 feet. (The term “roadway” refers to the travel lanes and shoulders.) The County’s planned work did not include paving the Road, although paving has always been acknowledged as a long-term goal of the County. Bremner Affidavit paragraph 8, and Attachment B thereto.
    4. Garfield County does not dispute that NPS and BLM jointly prepared the 1993 EA. The County does dispute the legal conclusion contained in paragraph 9 that NPS’s actions met its obligations under NEPA, as more fully set forth below.
    5. Garfield County disputes that the actions of NPS were taken to reduce the continuing conflict over maintenance and construction of the Boulder-to-Bullfrog Road.(3) Affidavit of Louise Liston, attached hereto and incorporated by reference as Exhibit 6, paragraphs 3-6; 1995 FONSI at 2 (See, Exhibit 4).
      1. Garfield County does not dispute that the 1993 EA addressed four alternative proposals but disputes the remaining characterizations of Garfield County’s proposal. Attachment B to Bremner Affidavit.
      2. Disputed. NPS here asserts that the 1993 EA states that the County proposed to improve an area of the Road (on the Switchbacks section, owned by Garfield County) by rerouting it. The EA, in fact, states that “the county has under contract a project which implements the [] option [that would] use the existing graded alignment as much as possible with improvements to the width and drainage on the road.” 1993 EA at 29 (copy attached hereto and incorporated by this reference as Exhibit 7). See, also, Attachment B to Bremner Affidavit.
      3. Garfield County does not dispute that the 1995 FONSI addressed and “authorized” an NPS alternative which was not proposed by Garfield County, but disputes the remaining characterizations contained in paragraph 13. 1995 FONSI at 2, 4 (See, Exhibit 4).
      4. Garfield County does not dispute that the 1995 FONSI did not “authorize” certain construction activities on a portion of the Road, but disputes the remainder of paragraph 14. 1995 FONSI at 2 (See, Exhibit 4).
      5. Disputed. Since only .3 miles out of 8.7 miles of the Road within CRNP were, by NPS measurements, less than 20 feet, the “authorized improvements” did not consist of “widening most of the [Road].” 1995 FONSI at 2 (See, Exhibit 4); Bremner Affidavit paragraph 14.
      6. Garfield County does not dispute that NPS attempted to use the 1995 FONSI as a basis for asserting authority to prevent the County from improving its right-of-way. 1995 FONSI at 2 (See, Exhibit 4).
      7. Disputed. 1993 EA at 2. (See, Exhibit 7.)
      8. Disputed. Garfield County appealed the FONSI to IBLA.(4) See, Exhibit 8.
        1. Disputed. No foundation is proffered for this allegation. See, Attachment B to Bremner Affidavit. Garfield County has submitted every item of information requested by NPS in as it conducted its NEPA review. Bremner Affidavit paragraph 7.
        2. Disputed. The FONSI attempted to prohibit only specified construction activities. 1995 FONSI at 2 (See, Exhibit 4).
        3. Disputed. The FONSI asserted that “at a minimum an environmental assessment will be prepared prior to construction approval of these activities within Capitol Reef National Park.” 1995 FONSI at 2 (See, Exhibit 4).
        4. Disputed. Garfield County has not performed work on the Road in CRNP that was not within the existing disturbed area. Bremner Affidavit paragraph 27; Cox Declaration paragraph 21.
        5. Disputed. NPS personnel assigned to observe the maintenance work repeatedly expressed their agreement with Garfield County’s actions. NPS officials who were not familiar with road maintenance requirements or who were not assigned to work with the County on the maintenance work raised questions on occasion and County personnel addressed those questions as they arose. However, because the County’s work was clearly reasonable and necessary maintenance within the existing disturbed area, the work proceeded. Bremner Affidavit paragraphs 21, 33; Affidavit of Dean Que Gledhill paragraph 7, attached hereto and incorporated herein by this reference as Exhibit 9 . See, also, Garfield County’s Motion to Strike.
        6. Disputed. Garfield County personnel repeatedly stated that the County would conduct its maintenance activities in accordance with normal and appropriate practices and would not honor any requests to narrow the roadway to 20 feet. At no time did County representatives state that the County had taken actions that were accidental or that there were miscommunications among the Garfield County road crew. Bremner Affidavit paragraphs 27-64. See, also, Garfield County’s Motion to Strike.
        7. Disputed. Bremner Affidavit paragraph 27; Liston Affidavit paragraphs 4-6. See, also, Garfield County’s Motion to Strike.
        8. Disputed. Liston affidavit paragraph 11. See, also, Garfield County’s Motion to Strike.
        9. Disputed. County representatives did not meet with NPS personnel on April 10, 1995. At no time did County representatives have discussions with NPS personnel limited to 7.4 miles of the Road. Bremner Affidavit paragraphs 15, 19, Liston Affidavit paragraph 9. See, also, Garfield County’s Motion to Strike.
        10. Disputed. Although Lundy attempted to assert demands for further authorization by NPS, County officials refused to proceed with discussions on that basis. Lundy agreed to continue discussions without continuing with those demands. Those discussions addressed maintenance for the entire Road within CRNP. Bremner Affidavit pragraph 18, Liston Affidavit paragraphs 8-9. See, also, Garfield County’s Motion to Strike.
        11. Garfield County does not dispute that County officials stated their willingness to work cooperatively with NPS, subject to certain parameters, in conducting its maintenance activities. However, County officials were also explicit in stating that they would not narrow the Road to the 20-foot “running surface” asserted in the FONSI, nor did they agree to unequivocally accept any demand made by NPS, no matter how unreasonable. The County was committed to work to minimize impacts on park resources so long as reasonable maintenance activities proceeded. NPS personnel agreed to this approach to the maintenance work. Bremner Affidavit paragraphs 17, 18, 20, Liston Affidavit paragraphs 8-9.
        12. Undisputed.
        13. Undisputed.
        14. Disputed. The letter states that “[o]ur maintenance needs on the Road for the foreseeable future primarily involve grading to minimize runoff and provide an adequate road surface. This work would include, where appropriate, pulling in the edges of the road to provide a crowned surface and bar ditching to control runoff. In addition, we have discussed with you the placing of culverts where the Road has been degraded at wash crossings and other work which was addressed in your recent Finding of No Significant Impact.” Attachment D to Liston Affidavit.
        15. Undisputed.
        16. Disputed. Bremner Affidavit paragraphs 27-64; Gledhill Affidavit paragraphs 4, 7, 10.(5) See, also, Garfield County’s Motion to Strike.
          1. Undisputed.
          2. Disputed. Bremner Affidavit paragraphs 15, 18. See, also, Garfield County’s Motion to Strike.
          3. Disputed. Bremner Affidavit paragraph 26; Gledhill Affidavit paragraph 3.
          4. Disputed. Bremner Affidavit paragraphs 17, 18, 26. See, also, Garfield County’s Motion to Strike.
          5. Disputed. Bremner Affidavit paragraphs 29-30. See, also, Garfield County’s Motion to Strike.
          6. Disputed. Bremner Affidavit paragraph 27; Gledhill Affidavit paragraph 7.
          7. Disputed. Gledhill Affidavit paragraph 10. See, also, Garfield County’s Motion to Strike.
          8. Disputed. See, Garfield County’s Motion to Strike.
          9. Disputed. Bremner Affidavit paragraph 35; Liston Affidavit paragraph 12. See, also, Garfield County’s Motion to Strike.
          10. Disputed. Bremner Affidavit paragraphs 27-64; Gledhill Affidavit paragraph 7. See, also, Garfield County’s Motion to Strike.
          11. Disputed. Bremner Affidavit paragraph 55.
          12. Disputed. Bremner Affidavit paragraph 55.
          13. Because there are two paragraph 47’s in Plaintiff’s statement of facts, they will be addressed as a. and b.
            1. Disputed. Bremner Affidavit paragraph 57-60. See, also, Garfield County’s Motion to Strike.
            2. Disputed. Cox Declaration paragraph 29. See, also, Garfield County’s Motion to Strike.
          14. Disputed. Liston Affidavit paragraph 13. See, also, Garfield County’s Motion to Strike.
          15. Disputed. Bremner Affidavit paragraphs 57-60. See, also, Garfield County’s Motion to Strike.
          16. Undisputed that the County road crew began work shortly after 8:00 a.m. on February 13, 1996, and that Mr. Cox did not elect to arrive at that time. The characterization of the work is disputed. Bremner Affidavit paragraphs 55-62.
          17. Disputed. Bremner Affidavit paragraphs 55-62.
          18. Disputed. Bremner Affidavit paragraph 65.
          19. Disputed. See, Exhibit 3; Bremner Affidavit paragraph 65.
          20. Disputed. 1995 FONSI at 2 (See, Exhibit 4); Bremner Affidavit paragraph 19; Liston Affidavit paragraph 9.
          21. Disputed. Bremner Affidavit paragraphs 14, 17, 18. See, also, Lundy Declaration paragraph 23; Cox Declaration paragraph 26.
          22. Disputed. Cox Declaration paragraphs 24-25; Bremner Affidavit paragraph 65.
          23. Disputed. Bremner Affidavit paragraphs 27, 65.
          24. Garfield County’s plans were evaluated in two environmental assessments prior to the 1993 EA and 1995 FONSI:
            1. In 1985, NPS participated with the Bureau of Land Management in preparation of a Draft Environmental Assessment on Paving the Boulder-to-Bullfrog Road, dated May, 1985. In December of 1985, a Finding of No Significant Impact was issued by NPS and BLM, based upon the 1985 EA. Bremner Affidavit paragraph 6.
            2. BLM issued a “Draft Environmental Assessment: Boulder to Bullfrog Road (Burr Trail),” December, 1988, the “Boulder to Bullfrog Road Improvement Project (Burr Trail) Final Environmental Assessment (EA): A Supplement to Paving the Boulder-to-Bullfrog Road EA (1985),” EA # UT-040-89-6, dated March 7, 1989 and a Finding of No Significant Impact and Record of Decision dated March 8, 1989. Bremner Affidavit paragraph 6.
          25. NPS refused to participate with BLM in the preparation of the 1989 EA. Bremner Affidavit paragraph 6.
          26. Finally, on January 13, 1992, Robert M. Baker, Regional Director of the Rocky Mountain Region of NPS, met with Garfield County officials, proposing to perform yet another NEPA review of Garfield County’s plans for the Boulder-to-Bullfrog Road. He promised the County that the EA would be completed within six months. Bremner Affidavit paragraph 5.
          27. Garfield County provided NPS with all the information requested by NPS in conjunction with the preparation of the 1993 EA. Bremner Affidavit paragraph 7.
          28. The County’s plans, as outlined in the 1985 EA, the 1989 EA and the 1993 EA, have remained substantially the same. Nevertheless, the 1995 FONSI refused to address Garfield County’s plans and asserted that the County could not exercise the full scope of its rights as stated in Hodel, demanding instead that the Boulder-to-Bullfrog Road must be narrowed in CRNP to meet a new, 20-foot “running surface” standard newly created in the 1995 FONSI.(6) The FONSI asserted that yet another NEPA review would be necessary before the agency would address its long-standing plans. Bremner Affidavit paragraph 6; 1995 FONSI at 2 (See, Exhibit 4).
            1. Because the 1993 EA and the 1995 FONSI represented both an agency refusal to address Garfield County’s plans, as it was required to do, and agency action outside of authority, Garfield County filed an appeal with the Interior Board of Land Appeals on May 10, 1995. See, Attachment B to Exhibit 8.
            2. On November 27, 1995, Garfield County began maintenance on the Boulder-to-Bullfrog Road within CRNP. Bremner Affidavit paragraph 27.
            3. The County afforded NPS with an opportunity to preview the planned maintenance actions and invited NPS to have personnel on site to observe the work as it progressed. Bremner Affidavit paragraphs 16-21.
            4. At a meeting conducted on April 25, 1995, on the Road to address the upcoming maintenance actions, Garfield County officials expressly notified NPS that the County would not defer to the 1995 FONSI as a valid exercise of agency authority. The County asserted its intentions to comply with applicable law by acting to avoid any unnecessary impacts on resources within the park. Furthermore, the County noted that the current maintenance work would remain within areas already disturbed by previous Road maintenance and construction. Park Superintendent Lundy agreed not to assert the FONSI as a basis of authority over Garfield County in conjunction with the discussion regarding the County’s maintenance project and the discussion proceeded by considering the planned work in terms appropriate to reasonable and necessary road maintenance and mitigation actions to protect specified park resources. Bremner Affidavit paragraph 18; Liston Affidavit paragraph 8.
            5. NPS personnel have attempted to assert that areas clearly disturbed by construction and maintenance activities were “undisturbed.” Cox Declaration paragraph 21; Bremner Affidavit paragraph 16.
            6. At no time did Garfield County perform maintenance work outside of areas previously disturbed by Road maintenance and construction. Bremner Affidavit paragraph 27.
            7. At no time did Garfield County personnel limit their work to a 20-foot “running surface.” Bremner Affidavit paragraph 53; Gledhill Affidavit paragraphs 4-6.
            8. Garfield County consistently kept NPS personnel informed of its intentions to perform maintenance work within the existing disturbed area within its right-of-way as necessary for safety and that it would not narrow the Road to the “20-foot running surface” demanded by the FONSI and, in fact, the maintenance proceeded from November 28, 1995, through February 13, 1995, accordingly. Bremner Affidavit paragraphs 18-64.
            9. The work performed on February 13, 1996, was contained within areas previously disturbed by Road construction and maintenance. Bremner Affidavit paragraph 65.
            10. The work now objected to by NPS consisted of steepening an existing cut slope to about 1:1. This work was consistent with normal road maintenance activities routinely conducted on this Road in the past and on other Garfield County roads. Bremner Affidavit paragraphs 27, 65.
            11. The Road at this location requires further improvements to meet applicable safety standards necessary to protect the traveling public from unnecessary risk in driving the Road. Bremner Affidavit paragraph 66.
            12. Prior to Garfield County’s maintenance project, more than 95 percent of the Road exceeded 20 feet in width. Bremner Affidavit paragraph 14.
            13. Garfield County owns the section of land which contains the area known as the “Switchbacks” within CRNP. See, Exhibit 5.

Endnotes for “Statement of Material Facts” Section.

1. Garfield County has filed a Motion to Strike from the record certain factual allegations made in declarations attached in support of Plaintiff’s motion for partial summary judgment. As more fully set forth in the Memorandum in Support of Garfield County’s Motion to Strike, because the material facts in this case must focus on the on-the-ground actions the County took during the course of its maintenance project and whether NPS had authority to interfere with those actions, statements made in the course of negotiations between the parties regarding their differing positions regarding the parties’ rights are not material to the question of liability of the County for trespass. The County has, nevertheless, included in the Affidavits filed herewith factual allegations showing that there is a dispute as to virtually all of the allegations asserted by Plaintiff, even those which may not be properly admissible.

2. NPS’s evasion of a straightforward statement about the existence of Garfield County’s valid right-of-way on the Road is consistent with its ongoing interactions with Garfield County. NPS personnel have refused to tell the County where they think the limits of the disturbance created by prior maintenance and construction are (See, Bremner Affidavit paragraph 56). Furthermore, they have refused to identify the limits of the right-of-way, so as to allow a reasonable resolution of Road maintenance and construction issues, as noted in their memorandum: “Twenty-four feet may be reasonable and necessary across the BLM Escalante Area and not across the NPS’ Capitol Reef National Park”; “the 24 foot rights of way allowed through the Escalante Area may not be appropriate for Capitol Reef National Park”; “no determination has been made as to the appropriate level of improvement for the one mile segment of the Burr Trail bulldozed most recently by the County.” (Pltf. Memo. pp. 22, 24.) Thus, after conducting two environmental assessments, and taking, combined, approximately 5 years to conduct those studies, NPS concluded that further environmental analysis must be prepared. In other words, NPS has never been willing to tell Garfield County what it thinks the County’s right-of-way is in CRNP. Now, NPS wants to play the same game with this Court. Its complaint won’t say what the “alleged” right-of-way is. Its memorandum won’t say what the right-of-way is. Given this abdication of any responsible communication on the subject, Garfield County is justifiably concerned about the rule of law proposed by NPS to replace the existing law of R.S. 2477. Under NPS proposals, Garfield County would be subject to day-to-day whims of NPS personnel, never knowing from one day to the next what standard might be applied because NPS operates under a “don’t ask, don’t tell” policy of Road “regulation.”

3. NPS includes, at footnote 5 to paragraph 10 of its statement of facts, a legal argument, which Garfield County addresses below, and not as part of the factual presentation in this matter.

4. No administrative appeals process has been established in relation to NPS actions. The County retains its right to appeal the NPS action to the Courts.

5. Of course, the use of the term “unauthorized” in this statement of fact goes to the heart of the legal issues raised in this case. Therefore, it is, in part, a legal argument and will be addressed in the Argument section of this memorandum.

6. The 1995 FONSI defined the term “running surface” as “any portion of the road cross-section that can be safely used by two-wheel drive vehicles [including] the ditch foreslope . . ., because, as currently maintained, this slope is flat enough to provide a safe driving surface.” No authority is cited for this new NPS definition. 1995 FONSI at 2.