“Reply to United States’ Opposition to Defendants’ Motion to Dismiss”October 11, 1996

Defendants Garfield County, Louise Liston, D. Maloy Dodds, Clare M. Ramsay, and Brian B. Bremner (hereinafter referred to collectively as Garfield County) hereby reply to the United States’ Opposition to Defendants’ Motion to Dismiss.(1)


Plaintiff has stated general rules of law but ignored the specific rules that apply in this case, thus missing the point. While the principles stated by Plaintiff regarding sovereign immunity, the requirements for pleadings and the standard applicable to motions to dismiss are valid, they don’t address the issues raised by Garfield County.

While a complaint is only required to contain a short and plain statement, that statement must be “of [a] claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8((a)(2). In other words, Plaintiff was required to set forth the necessary elements making up a cause of action. Plaintiff has failed to do so.


The Utah Governmental Immunity Act Applies to Plaintiff’s Damage Claims.

The Utah Governmental Immunity Act, Utah Code Ann. Sections 63-30-1 et seq. (the Act) applies in accordance with its terms to any cause of action against a Utah governmental entity. The Act does not operate as a bar against Plaintiff’s claims on the basis of sovereign immunity and Garfield County has not asserted it for that purpose.

It is well settled that the United States is not bound by state statutes of limitation. . . . To this general rule, however, there is an exception that a state statute which provides a time limitation as an element of a cause of action or as a condition precedent to liability applies to suits by the United States even if there is an otherwise applicable federal statute of limitations.

United States v. State of California, 655 F.2d 914, 918 (9th Cir. 1980) (citations omitted).

United States v. State of California addressed almost precisely the issue before this Court. In that case, the United States had sued the state of California for recovery of fire suppression costs, but had failed to comply with California’s claim filing statute. That statute:

requires all claims for money or damages for which the state is liable to be presented within one year of the date the claim arose. In addition [it] expressly prohibits suits against the state until a claim has been presented and rejected by the state. Finally, any suit on the claim must be filed within six months of the state’s action on the claim.

655 F.2d at 918, note 3, citing Cal.Gov.Code Section 911.2.

Clearly, the California claims statute being addressed by the 9th Circuit Court is the substantial equivalent of the Utah Act. As the 9th Circuit Court stated:

The government . . . contends that California’s claim filing statutes are part of a statutory complex designed to limit California’s waiver of sovereign immunity. This is clearly correct.

Id. Nevertheless, “[t]hese requirements are substantive elements of the cause of action, not mere jurisdictional limitations.” Id.

In accordance with the analysis provided in California, the initial inquiry must focus on whether Utah law or federal law provides the rule of decision. “The first issue to be resolved is which law, federal or state, should be utilized as the rule of decision.” Id. at 916. If Utah law provides the rule of decision, notice under the Utah Act is a necessary “condition precedent” to liability of Garfield County. Id. at 918.

To determine whether state law should be utilized as the rule of decision, the 9th Circuit Court provided the following analysis:

An instructive discussion of how federal-state choice of law decisions should be made in cases such as this is provided by Judge Wisdom’s excellent opinion in Georgia Power Co. v. 54.20 Acres of Land, 563 F.2d 1178, 1185-90 (5th Cir. 1977), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979). After reviewing all the pertinent Supreme Court decisions, Judge Wisdom concluded:

Together these cases produce a balancing test. . . . On the one side is the federal interest in carrying out a program in the most efficient and effective manner possible. On the other hand is a state’s interest in the preservation of its control over local interests, particularly traditional interests such as family law and real property transactions, and in preventing the displacement of state law. . . . [I]f state law would actually frustrate rather than only hinder a federal program, federal common law must be applied regardless of state interests. . . . On the other hand, the Supreme Court has demonstrated a growing desire to minimize displacement of state law. . . .

Georgia Power, supra, 563 F.2d at 1189 (emphasis in original). The Supreme Court has stated on the one hand that state law should be applied unless a “significant conflict between some federal policy or interest and the use of state law in the premises” is demonstrated. . . . [A]lthough a balancing approach should be adopted, the scales of the balance are weighted in favor of borrowing state law to fashion the federal rule of decision.

Id. at 917.

This case clearly balances in favor of the application of the state common law of trespass as the basis for the cause of action. In fact, Plaintiff’s trespass claim clearly arises from the common law.(2) It is a claim involving real property, an area specifically identified as being of particular interest to the states. The state common law of trespass clearly does not frustrate Plaintiff’s claim in any way because it forms the basis for its claim. The question of the scope of an R.S. 2477 right-of-way, the central issue raised by Plaintiff in this case and the necessary basis for determining whether a trespass has occurred, is a state law question. The United States Court of Appeals for the 10th Circuit conducted a thorough analysis to determine the choice of governing law in dealing with R.S. 2477 rights-of-way, including a balancing test as discussed above, and concluded that state law defines the scope of the R.S. 2477 right-of-way. Sierra Club v. Hodel, 848 F.2d 1068, 1079-1083 (10th Cir. 1988).

Like the California claims act, the Utah Act prescribes a necessary element to establish a cause of action for damages against Garfield County. That element is notice to Garfield County:

Any person having a claim for injury against a governmental entity, or against an employee for an act or omission occurring during the performance of his duties, shall file a written notice of claim with the entity before maintaining the action.

Plaintiff is clearly asserting a claim for damages. See, e.g., Plaintiff’s Opposition to Defendants’ Motion to Dismiss at p. 2, note 3; Declaration of Charles Lundy, paragraph 25; Complaint paragraphs 28, 33 and request for relief C. That claim must be dismissed for failure to serve and allege the necessary notice under the Act.

Plaintiff has not been prevented from meeting this requirement.(4) It can choose to do so or not, but it cannot eliminate this requirement from the cause of action for damages against Garfield County. If “state law is to be borrowed to fashion the federal rule of decision in this case, the law applicable to the federal government must include the state’s claim filing statutes . . ..” 655 F.2d at 919.

Plaintiff asserts that United States v. State of California is distinguishable because the claims in that case arose under a state statute. That distinction is legally irrelevant. The 9th Circuit Court analysis applies to any claim arising under state law, including the common law of trespass. The Court adopted a state statute as the law to be borrowed a the rule of decision in that case because the statute had superseded state common law negligence liability. 655 F.2d at 917.

While Plaintiff has clearly failed to meet the requisite elements of a damages claim against Garfield County, its claim for equitable relief is also inadequate as set forth below.

Plaintiff has not stated all material elements of a claim for trespass against Garfield County in connection with its actions on its R.S. 2477 right-of-way on the Boulder-to-Bullfrog Road.

While Plaintiff’s claim for equitable relief would not be precluded by the Utah Governmental Immunity Act, it must necessarily include the elements required to state a cause of action in order to withstand a motion to dismiss. Plaintiff has failed to include the required elements as more fully set forth in Garfield County’s MEMORANDUM OF AUTHORITIES IN SUPPORT OF MOTION TO DISMISS.

Garfield County clearly possesses an authorization to enter upon lands owned by the United States to maintain its R.S. 2477 right-of-way on the Boulder-to-Bullfrog Road. Plaintiff asserts as the basis for its trespass claim that Garfield County failed to obtain permission before performing work on the Road. This assertion has no basis in law. Garfield County’s right-of-way establishes a privilege which is not subject to permission from the servient estate holder. “Rights-of-way are a species of easements and are subject to the principles that govern the scope of easements.” 848 F.2d at 1083. “An easement is an interest in land in the possession of another which . . . is not subject to the will of the possessor of the land.” Restatement of Property, Section 450.

Furthermore, as more fully set forth in Garfield County’s MEMORANDUM OF AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, Congress has given no authority to the Department of Interior (DOI) to demand permission or written authorization as a condition precedent to the exercise of Garfield County’s R.S. 2477 rights. In fact, DOI authority is expressly made “subject to” Garfield County’s prior valid existing rights. Road maintenance actions taken within the scope of the County’s right-of-way without prior permission from DOI do not constitute a trespass, even if DOI demands that permission in the form of a regulation, since road maintenance is clearly performed pursuant to a legal right. Taking all allegations of the complaint as true, as a matter of law, the complaint fails to state a claim on this basis.

Plaintiff’s allegation that “the disturbed area is outside the scope of the County’s alleged right-of-way” is a meaningless statement, because there is no statement of what the “alleged right-of-way” is. Complaint paragraph 25. As such, it does not allege a trespass. It merely states that the area allegedly disturbed by the County’s actions is outside some undefined area.

As noted in the County’s MEMORANDUM OF AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, the other “factual” allegations regarding Garfield County’s actions do not show that it exceeded its right-of-way. Thus, Plaintiff has failed to state the necessary elements of a cause of action for trespass in connection with Garfield County’s maintenance of the Boulder-to-Bullfrog Road.

Plaintiff asserts that the County confuses the pleadings with the merits. To the contrary, Plaintiff confuses its unilateral statement of authority with a rule of law. Congress established the rule of law applying to this case; Plaintiff must follow that rule. In order to state a claim for trespass against Garfield County, Plaintiff was required to include allegations showing that the County has exceeded its prior valid existing right-of-way. Plaintiff has failed to do so. Taking all allegations of the complaint as true, Plaintiff has not asserted allegations necessary to claim that Garfield County has exceeded its right-of-way.


Based upon the foregoing, the complaint must be dismissed for failure to state a claim of trespass against Garfield County in connection with its exercise of its right-of-way on the Boulder-to-Bullfrog Road. Plaintiff’s claims, insofar as they rest on an assertion of a requirement that the County obtain permission before taking any action to exercise its rights, must be dismissed. Plaintiff’s claims, insofar as they attempt to assert a trespass without including allegations necessary to show that the County has exceeded its right-of-way, must be dismissed. The damages claims must be dismissed for failure to meet the necessary elements for an action against Garfield County under Utah law.

DATED this 11th day of October, 1996.

Barbara Hjelle

Wallace A. Lee

Ronald W. Thompson

Stephen H. Urquhart

Counsel for Garfield County, et al.


1. Plaintiff has filed a combined memorandum including a section opposing Garfield County’s Motion to Dismiss and an argument supporting a separate motion for partial summary judgment. Because the two matters are distinct and because the deadline for Defendants’ response to the motion for partial summary judgment is later than the stipulated deadline for the reply on the motion to dismiss, this memorandum will only address the issues raised in connection with the motion to dismiss. A separate memorandum will be filed in accordance with the rules applicable to motions on summary judgment.

2. Plaintiff’s first cause of action cites no statutory authority, but attempts to state a common law claim for trespass. Plaintiff’s second cause of action, while referring to a federal regulation, merely restates the elements of a cause of action for trespass and thus does not add anything to the claim.

3. The term “claim” is defined as a cause of action for money or damages. Utah Code Ann. Section 63-30-2(1). The term “injury” includes “damage to or loss of property.” Utah Code Ann. 63-30-2(5).

4. No time periods set by the Act have expired. Utah Code Ann. Section 63-30-13 allows Plaintiff one year to file its notice of claim. Plaintiff merely needs to serve the necessary notice as required by the Act.