“Memorandum of Authorities in Support of Motion to Dismiss”

July 30, 1996





A. Plaintiff Has Failed to Give the Requisite Notice under the Utah Governmental Immunity Act7

B. Plaintiff has Failed to Allege the Necessary Elements of a Trespass Claim7

C. Plaintiff’s Complaint Relies on an “Authority” which has no Basis in Law11



Plaintiff’s complaint in this matter must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

To withstand a motion to dismiss “[t]he complaint must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory.” Columbus, Cuneo, Cabrini Med. Center v. Travelers, 725 F.Supp. 396, 397 (N.D. Ill., 1989). A motion to dismiss requires a careful analysis of the complaint to determine whether it can pass the required tests under the applicable liberal construction rules. Lessman v. McCormick, 581 F.2d. 605, 608 (10th Cir. 1979). Analysis of the complaint in this matter shows that Plaintiff has failed to include allegations concerning all material elements of its claim against Defendants.

Plaintiff has failed to allege (and failed to give) the requisite notice of claim under the Utah Governmental Immunity Act. In addition, Plaintiff has failed to allege facts necessary to show that Garfield County’s work on its right-of-way on the Boulder-to-Bullfrog Road(1) (the “Road”) was outside of the scope of its right-of-way or otherwise unauthorized and thus in trespass. Finally, Plaintiff’s request for relief demands that this Court eviscerate the County’s right-of-way by declaring that the County cannot perform any work on its right-of-way, whether routine maintenance or any necessary safety-related activities, without prior permission from the Secretary of Interior. No legal basis exists for demanding such relief, on the basis of the facts alleged in the complaint or any other imaginable set of facts.


In order to clarify just what the Plaintiff has — and has not — alleged, the relevant allegations and the omitted, necessary allegations are listed below(2):

Plaintiff has alleged that:

Congress enacted R.S. 2477 which granted the “right-of-way for construction of highways over public lands, not reserved for public uses.” Complaint, paragraph 8.

The Secretary of Interior was delegated authority to administer and regulate use of Capitol Reef National Park

(“CRNP”), which was created by Congress in 1971. Id., paragraph 10.

“Approximately 8.4 miles” of the Road traverses CRNP. Id., paragraph 11.

Garfield County maintains the Road. Id., paragraph 12.

NPS prepared an environmental assessment (the “EA”) under the National Environmental Policy Act (NEPA), 42 U.S.C. Sections 4321-4347 (1995), “to examine the environmental impacts of the proposed improvements and to determine whether such impacts would be significant” and thereby “approved” and “authorized” certain improvements to the Road. Id., paragraphs 13, 14.

Commencing after November 27, 1995, the County performed work on the Road, some of which was allegedly not “authorized” by NPS officials or was “beyond the footprint of the road in previously undisturbed areas . . . .” Id., paragraphs 22, 24, 25.

Nowhere does Plaintiff allege that Garfield County does not have a right-of-way on the Road.

Nowhere does Plaintiff identify any statutory authority granting the Secretary of Interior the power to demand that the County refrain from exercising its rights until it has received “permission” from the Secretary of the Interior or to otherwise directly administer the County’s right-of-way.

Nowhere does Plaintiff describe the property included within the scope of Garfield County’s right-of-way, or, as a necessary corollary, identify what property the County entered outside the limits of its right-of-way.
Plaintiff includes the following specific requests for relief:

That the Court declare that “Defendants, their agents, and their employees may not engage in any activity on the Burr Trail without prior authorization from the Secretary.” Complaint, p. 12 (emphasis added).

That the Court grant a “permanent injunction against Defendants, their agents, and their employees prohibiting them from engaging in any activity on the Burr Trail without prior authorization from the Secretary.” Id. (emphasis added).


Based upon the factual allegations set forth in its complaint, all of which pertain solely to alleged actions within CRNP, Plaintiff asks this Court to rule that Garfield County may not perform any work on its right-of-way along the entire Boulder-to-Bullfrog Road without first obtaining permission from the Secretary of Interior to exercise its rights. In support of this demand, Plaintiff has failed to allege the necessary elements to sustain its claims against the County, which are both in the nature of trespass.

If Plaintiff’s complaint were allowed to stand, it would constitute an interpretation of the law which would operate as a blanket evisceration of traditional local authority over the transportation infrastructure in Utah already established as a matter of right pursuant to the direct grant from Congress under R.S. 2477. Acceptance of the complaint as it stands would effectively divest Garfield County, and all others with R.S. 2477 rights-of-way, of any reasonable standards to govern the management of public roads to provide safety for the travelling public, leaving no objective standard for dealing with these roads. If the United States is not required to objectively identify the boundaries of the R.S. 2477 right-of-way so that a reasonable standard can be applied to the exercise of the right, there is no right, but merely a permissive use of the servient estate. Plaintiff is asking this Court to grant the Secretary of Interior unfettered discretion in deciding when and how to give “permission” to exercise a right which Congress has honored as a dominant estate.

In making this demand upon the Court, Plaintiff has omitted material elements necessary to state a claim against the Defendants.

Plaintiff Has Failed to Give the Requisite Notice under the Utah Governmental Immunity Act

Plaintiff has failed to give the requisite notice under the Utah Governmental Immunity Act, Utah Code Ann. Sections 63-30-1 et seq. Utah Code Ann. Sections 63-30-13 requires that:

A claim against a political subdivision, or against its employee for an act or omission occurring during the performance of his duties, within the scope of employment, or under color of authority, is barred unless notice of claim is filed with the governing body of the political subdivision within one year after the claim arises . . ., regardless of whether or not the function giving rise to the claim is characterized as governmental.

The filing of the notice and allegation thereof in the complaint is a necessary prerequisite to establish a cause of action when suing Garfield County, its commissioners or employees for trespass. See, United States v. State of California, 655 F.2d 914 (9th Cir. 1980); See, also, United States v. Hynes, 771 F. Supp. 928 (N.D. Ill., 1991).

Based upon its failure to give notice of its claim to the County, Plaintiff’s suit is barred.

Plaintiff has Failed to Allege the Necessary Elements of a Trespass Claim

A claim for trespass must allege:

An entry,

Onto described real property owned or occupied by the plaintiff,

Without authorization or privilege.

Ercanbrack v. Clark, 8 P.2d 1093 (Utah 1932); Restatement (First) of Torts Section 158 (1934); 75 Am. Jur. 2d Trespass, Section 25 (1991).

Plaintiff has not alleged facts which, by inference or otherwise, establish that Garfield County entered onto Plaintiff’s lands without authorization or privilege.

Garfield County holds a right-of-way for the Road dating back to the late 1800s. Sierra Club v. Hodel, 848 F.2d 1068, 1073 (10th Cir. 1988).(3) The United States has not denied the existence of the right-of-way,(4) which clearly pre-dates the creation of CRNP.

The right-of-way on the Road is that which is reasonable and necessary to ensure safe travel for established uses, “including improving the road to two lanes so travelers could pass each other.” Id. at 1084.

The right-of-way includes the right to construct a 24-foot travel surface, with adjoining shoulders, culverts and ditches. Id. at 1084-1085, citing Sierra Club v. Hodel, 675 F.Supp. 594, 606-07 (D. Utah, 1987).

The allegations of the Complaint itself establish that the County owns a right-of-way for the Road. Plaintiff acknowledges that the Road exists within CRNP and is maintained by the County. (Complaint paragraphs 11, 12.) The County has been performing work which took place from the end of November until mid-February without objection from NPS except in two instances. (Complaint paragraphs 22 and 25.) In fact, the Complaint notes the existence of the right-of-way, albeit with the specious adjectives “alleged” and “purported.”(5) Plaintiff likewise refers to itself as the “holder of the servient estate.” Complaint, paragraph 27.

Plaintiff was obligated to identify the limits of the right-of-way in order to establish the element of entry onto its property. For the same reason, Plaintiff was obligated to allege facts showing that work was performed outside the right-of-way. Nowhere does the complaint allege that the County built a road with a travel surface greater than 24 feet or that the attendant shoulders, ditches, drainage and cut and fill slopes were not called for to support that travel surface. Instead Plaintiff offers conclusory allegations that the County graded or bulldozed areas “outside of the footprint of the road.” Id., paragraphs 22, 25. The “footprint” of the road has no meaning, legally or in terms of any road standards. These allegations do not show that the County worked outside of its right-of-way.

In addition, by failing to offer allegations stating how the County exceeded the limits of its right-of-way, Plaintiff has failed to show that the County’s work was without the authorization and privilege granted by Congress pursuant to R.S. 2477.

Plaintiff’s second cause of action merely reasserts a trespass claim, alleging that the County did not have a written agreement with the United States to perform the work.

As the basis for this claim, Plaintiff asserts 50 C.F.R. Section 5.7, which states:

Constructing or attempting to construct a building, or other structure, boat dock, road, trail, path, or other way, telephone line, telegraph line, power line, or any other private or public utility, upon, across, over, through, or under any park areas, except in accordance with the provisions of a valid permit, contract, or other written agreement with the United States, is prohibited.

The regulation merely restates the elements of a trespass action, specifically, entry onto Plaintiff’s land without authorization. As noted above, the factual allegations of the complaint do not support a claim for trespass.

In addition, Plaintiff has misconstrued the rule in question. The rule, taken as a whole, recognizes that the Congressional grant under R.S. 2477 is sufficient authorization (“valid permit”), without any written agreement with the United States. To the extent that it does not, the regulation is undoubtedly invalid, as more fully established in Section III.C., below.

The law of R.S. 2477 is clear that a written agreement was not required to perfect an R.S. 2477 right-of-way. Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988). The federal regulations applicable during the R.S. 2477 offer were explicit:

Grants of rights-of-way referred to in the preceding section become effective upon the construction or establishment of highways, in accordance with the State laws, over public lands, not reserved for public uses. No application should be filed under R.S. 2477, as no action on the part of the Government is necessary.

43 C.F.R. Section 244.58 (January 1, 1963); See, also, 43 C.F.R. Section 244.55 (June 1, 1938).

Given the existence of the R.S. 2477 right-of-way on the Road, Plaintiff’s reliance on 50 C.F.R. Section 5.7 does not give rise to a claim against the Defendants. Thus, whether under its first or second cause of action, Plaintiff has failed to state a claim.

Plaintiff’s Complaint Relies on an “Authority” which has no Basis in Law

Plaintiff alleges no statutory authority, and there is none, to support its assertion that the County’s alleged trespass arises because it acted without permission from the Secretary of Interior, regardless of whether it worked within its right-of-way.

CRNP was established “subject to valid existing rights,” including the prior valid existing right held by Garfield County on the Boulder-to-Bullfrog Road. 16 U.S.C. Section 273(a). Furthermore, “lands or interests therein owned by the State of Utah, or any political subdivision thereof, may be acquired [by the Secretary] only with the approval of such State or political subdivision.” 16 U.S.C. Section 273a.

The Secretary’s authority to manage and administer CRNP is thus subject to, not superior to, Garfield County’s right-of-way on the Boulder-to-Bullfrog Road. Congress has not authorized the Secretary of Interior to restrict Garfield County’s exercise of its rights in any fashion, whether as a consequence of its administration of CRNP or otherwise.

No statutory authority exists whereby the Secretary can demand that the County obtain “permission” before it can exercise its rights on the Road. The common law of dominant and servient estates provides the basis for analysis of the rights to be exercised under R.S. 2477. See, e.g., 848 F.2d at 1087-1088. As the dominant estate holder, Garfield County is not required to seek permission to exercise its rights. Thus, the allegations of the complaint that Garfield County proceeded to perform work on the Road without prior permission from the Secretary do not state a claim against the County.


The United States has attempted to state a claim in trespass against Garfield County, in both causes of action contained in the complaint in this matter. The allegations of the complaint, taken at face value and construed most favorably to the United States, do not support a claim which would entitle it to the relief it requests, thus requiring a dismissal. McCormick, 581 F.2d. at 607-608. The United States has failed to give notice to Garfield County as required under the Utah Governmental Immunity Act and has thus failed to establish an essential element of its claim against the County. In addition, the factual allegations of the complaint fail to address material elements of a claim for trespass. Based upon the foregoing, the Defendants in this matter respectfully request that the complaint be dismissed.

DATED this 30th day of July, 1996.

Return to Boulder-to-Bull Frog Road Sub-Index.


  1. The Boulder-to-Bullfrog Road is a Class B County Road pursuant to Utah Code Ann. 27-12-22.
  2. The allegations of the complaint must be accepted as true solely for purposes of this motion. Under any other circumstances, Defendants would vigorously deny the truth of the allegations regarding the County’s actions in this matter. Furthermore, this discussion will omit a number of factual allegations which are irrelevant to the substantive claims which Plaintiff has attempted to assert or which are not admissible into evidence.
  3. “The Burr Trail winds for sixty-six miles through federally owned land in the rugged, dramatic terrain of southern Utah’s Garfield County. Connecting the town of Boulder with Lake Powell’s Bullfrog Basin Marina, the road at various points traverses across or next to unreserved federal lands, two wilderness study areas, the Capitol Reef National Park, and the Glen Canyon National Recreation Area. The trail has hosted a variety of uses: during the late 1800s and early 1900s to drive cattle, sheep and horses to market; around 1918 to facilitate oil exploration; and since the 1930s for various transportation, emergency, mineral, agricultural, economic development, and tourist needs. Garfield County (the County) has maintained the Burr Trail since the early 1940s. 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.” Id.
  4. It is not surprising that the Plaintiff has not gone so far as to deny the existence of the right-of-way. Prior court rulings, as noted above, along with numerous statements and actions by the United States Department of Interior, as well as the overwhelming factual basis for the County’s right-of-way, preclude making such an assertion in good faith.
  5. Since the only allegations in this case to date come from Plaintiff, it is disingenuous to say that “Defendants allege a right-of-way” (Complaint paragraph 11) and that there is a “purported” right-of-way (Complaint paragraph 12), while citing R.S. 2477 as authority for its complaint.