Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00422-WYD-MJW

Document 65

Filed 06/27/2005

Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00422-WYD-MJW JOHN RAMEY, Plaintiff, v. MARK BOSLOUGH, BOSLOUGH ELRICK FAMILY REVOCABLE TRUST, MAYA ELRICK, KRISTA ELRICK, ELRICK BLANCHARD REVOCABLE FAMILY TRUST, DAVID WARREN, ANNETTE NELSON, BRIAN L. NELSON, KENNETH TALLMAN, DAVE H. INSKEEP, MARY K., INSKEEP, FEE TITLE OWNERS OF THE 4TH OF JULY LODE MINING CLAIM BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF BOULDER, and UNITED STATES OF AMERICA, DEPARTMENT OF AGRICULTURE, UNITED STATES FOREST SERVICE. Defendants.

THE UNITED STATES' RESPONSE OPPOSING PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT

Defendants, the United States of America, the Department of Agriculture, and the United States Forest Service (collectively the "United States"), by and through counsel, William J. Leone, Acting United States Attorney for the District of Colorado and Roxane J. Perruso, Assistant United States Attorney, oppose Plaintiff's Motion to Alter or Amend Judgment, on the following grounds.

Case 1:04-cv-00422-WYD-MJW

Document 65

Filed 06/27/2005

Page 2 of 11

RELEVANT PROCEDURAL BACKGROUND 1. Plaintiff filed a complaint in state district court under C.R.C.P. 105 and 27

seeking to: (1) quiet title to a permanent prescriptive easement over, under and across certain real property known as Long Gulch Road; and (2) to have the Long Gulch Road declared a public road. (Docket No. 1, Plaintiff's Complaint.) 2. On January 29, 2004, the state district court dismissed Plaintiff's claim for a

declaratory judgment that the Long Gulch Road is a public road. 3. On February 6, 2004, Plaintiff served the United States with a summons and

complaint, adding it as a Defendant in this action. On February 9, 2004, Plaintiff served Boulder County with a summons and complaint, adding it as a Defendant in this action. 4. On March 8, 2004, the United States removed the case to federal district

court, because there is no jurisdiction in state court for actions to quiet title to an estate or interest in real property in which an interest is claimed by the United States. See 28 U.S.C. §§ 1346(f), and 2409a; (Docket No. 1.) 5. On May 7, 2004, Ramey filed a motion for leave to amend his complaint (Docket

No. 20.), which the Court granted on July 7, 2004. (Docket No. 31.) Ramey's Amended Complaint asserted the following claims against the United States: (1) First Claim for Relief, Declaratory Judgment as to Public Road Status; (2) Third Claim for Relief; Declaratory Judgment, Easement by Necessity; and (3) Fourth Claim for Relief; Quiet Title. 6. On November 18, 2004, the United States filed it motion for summary judgment

on all of Plaintiff's claims against the United States. (Docket No. 39.) Plaintiff responded on -2-

Case 1:04-cv-00422-WYD-MJW

Document 65

Filed 06/27/2005

Page 3 of 11

December 22, 2004, and the United States replied on January 24, 2005. (Docket No. 44.) 7. On May 20, 2005, the Court issued an Order granting the United States' motion

for summary judgment on all of Plaintiff's claims and ordered the clerk to enter judgment in favor of the United States and against Plaintiff. (Docket No. 58.) 8. On May 26, 2005, the Clerk pursuant to the Court's Order entered judgment in

favor of the United States and against Plaintiff on all of Plaintiff's claims against the United States. (Docket No. 59.) ARGUMENT This Court should deny Ramey's request that it reverse its order granting the United States' motion for summary judgment or alternatively to include provisions allowing for the interlocutory appeal of the Court's order on summary judgment. I. THIS COURT'S JUDGMENT WAS CORRECT AND SHOULD NOT BE REVERSED A. The Court Properly Denied Plaintiff's Attempt to Assert a New Claim in His Response Brief and Properly Held Such a Claim Would Likely Fail Anyway.

This Court rejected Plaintiff's attempt to amend his complaint in his response to the United States' motion for summary judgment to add a claim for an easement by implication. Court's Order at 6 (Docket No. 58). The Court was correct in holding that "any attempt to amend the complaint is both untimely and would prejudice the United States, since discovery has already been conducted." Id. Plaintiff argues in his motion, as he did in his response brief, that his Amended Complaint in paragraphs 24-29 had sufficient allegations to put the United States on notice that -3-

Case 1:04-cv-00422-WYD-MJW

Document 65

Filed 06/27/2005

Page 4 of 11

he was claiming and easement by implication. Plaintiff's Amended Complaint, however, clearly set out a claim for an easement by necessity, not a claim for an easement by implication. The paragraphs Plaintiff relies upon fall under the heading "THIRD CLAIM FOR RELIEF, (DECLARATORY JUDGMENT - EASEMENT BY NECESSITY)." Amended Complaint at 5 (Docket No. 31). Paragraph 29 of the Amended Complaint, which Plaintiff quotes in his motion, refers to "an implied easement of necessity" not an easement by implication. Because Plaintiff's Amended Complaint failed to plead a claim for an easement by implication, this Court properly concluded that Plaintiff was attempting to amend his complaint in his response brief. See Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003) (In the Tenth Circuit, "the inclusion of new allegations in a response to a motion for summary judgment, [are interpreted] as a potential request to amend the complaint."). The Court then properly rejected Plaintiff's attempted amendment as untimely and prejudicial to the United States. Viernow v. Euripides Dev. Corp., 157 F.3d 785, 799 (10th Cir. 1998) (untimeliness by itself is "a sufficient reason to deny leave to amend"); Martinez, 347 F.3d at 1212 (request to amend may also be denied where the new theory would prejudice the opposing party). Next, the Court properly held that even if Plaintiff were allowed to amend his complaint to bring a claim for an easement by implication, it would likely fail under Tenth Circuit precedent. The Tenth Circuit in United States v. Jenks, 129 F.3d 1348, 1354 (10th Cir. 1997) (Jenks II), rejected an identical claim. The defendant in that case asserted that "the land patents the government granted his predecessors in title contained implied easements for use of the access roads." Id. The Tenth Circuit held: -4-

Case 1:04-cv-00422-WYD-MJW

Document 65

Filed 06/27/2005

Page 5 of 11

To be sure, throughout our nation's western expansion, a right of access across government lands was implied if necessary to effectuate the purpose for which an inholding was granted. But it does not follow that the right of access accompanying the grant of an inholding was necessarily a property interest known as an implied easement. We implicitly rejected such a proposition in Jenks I when we stated: "Although the Homestead Act made no provision for access to and from granted land over the retained lands of the United States, it was presumed that `an implied license' to use public lands would provide settlers with unimpeded access to their property." Jenks, 22 F.3d at 1515. See Buford v. Houtz, 133 U.S. 320, 326, 10 S. Ct. 305, 307, 33 L. Ed. 618 (1890) (private landowners have an implied license, growing out of custom, to use public lands where lands are left open and no act of government forbids their use). . . . "[i]n a public grant nothing passes by implication, and unless the grant is explicit with regard to the property conveyed, a construction will be adopted which favors the sovereign." Albrecht v. United States, 831 F.2d 196, 198 (10th Cir. 1987). Id. Plaintiff's motion to amend the Court's judgment does not even address this on-point holding. Therefore, the Court properly rejected Plaintiff's attempted amendment as untimely, prejudicial, and futile. B. The Court Properly Held That Plaintiff's Claim for an Easement by Necessity Was Barred by the Quiet Title Act's Statute of Limitations.

This Court held that Plaintiff's claim for an easement by necessity is barred by the Quiet Title Act's twelve year statute of limitations, 28 U.S.C. § 2409(g). Court's Order at 7, § c. The Court held that, "Plaintiff's predecessors-in-interest knew or should have known of the United States' claim of interest . . . since 1917, when that land was reserved from the public domain by a Presidential Proclamation." Court's Order at 8, § 1. Without citing to any legal authority, Plaintiff asserts that "the statute of limitations cannot be measured from the date that the National Forest was created in 1917." Plaintiff's Mot. at ¶ 4. In contrast, the United States cited legal authority supporting that the Presidential Proclamation provided notice to Plaintiff's predecessors that the government claimed some interest in the property. Warren v. United States, -5-

Case 1:04-cv-00422-WYD-MJW

Document 65

Filed 06/27/2005

Page 6 of 11

234 F.3d 1331, 1336, 1338 (D.C. Cir. 2000) (holding that plaintiff's predecessor-in-interest was given constructive notice of the United States' claim by a presidential Proclamation and applying the twelve-year statute of limitations). The Court also held that the statute of limitations had run because the "Plaintiff knew of the United States' claim of the right to regulate his land as of 1990 when he submitted a Plan of Operations for Mining Activities on National Forest Lands in connection with his unpatented claims . . . . [and] this suit was not filed until 2003, more than twelve years later . . . " Court's Order at 8, § c. Plaintiff asserts that the "original Complaint in this matter was filed on March 22, 2002." Pl. Mot. at 4, ¶ 4. Although Plaintiff filed his action against the other defendants in March 2002, he did not add the United States as a party and serve the United States with a summons and complaint until February 6, 2004. Notice of Removal at ¶ 2 (Docket No. 1). The Quiet Title Act, at 28 U.S.C. 2409a(a), allows a plaintiff to name the United States "as a party defendant in a civil action . . . to adjudicate a disputed title to real property in which the United States claims an interest . . . ." and the twelve-year statute of limitations set out at 28 U.S.C. § 2409a(g) applies to "[a]ny civil action under this section." Thus, Plaintiff did not assert his claim against the United States for purposes of the statute of limitations until February 6, 2004, when he named the United States as a party, or after the twelve-year statute of limitations had run.1 Therefore, this Court was correct in holding that Plaintiff's claim for an easement by

The United States' Brief in support of summary judgment incorrectly states 2003 instead of 2004, however, the United States' Reply brief indicates Plaintiff commenced his action as to the United States in 2004. United States' Reply at 6. Regardless, the twelve-year statute of limitations had run by either 2003 or 2004. -6-

1

Case 1:04-cv-00422-WYD-MJW

Document 65

Filed 06/27/2005

Page 7 of 11

necessity is barred by the Quiet Title Act's statute of limitations. C. The United States' Removal of this Action to Federal Court Does Not Waive its Right to Challenge Jurisdiction.

Plaintiff asserts that this Court cannot hold that it does not have jurisdiction over Ramey's claims because "it was the United States, not Ramey, who invoked this Court's jurisdiction when the United States removed this action to Federal District Court." Pl. Mot. at 45, ¶ 5. Ramey argues that the "United States, having invoked federal jurisdiction cannot now argue that the Court lacks jurisdiction." Id. The United States removed this case from state court to federal court pursuant to 28 U.S.C. § 1441(a), which provides for removal of "any civil action brought in a State court of which the district courts of the United States have original jurisdiction . . . ." There is no jurisdiction in state court for Plaintiff's quiet title claim against the United States, because the "district courts shall have exclusive original jurisdiction of civil actions under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States." 28 U.S.C. §§ 1346(f). Thus, removal was proper. Next, by removing the case to federal court, the United States never waived its right to question jurisdiction. "[W]here the United States . . . is sued in state court, removal by the Government is not tantamount to a consent to be sued nor a waiver of objection it may have to the jurisdiction of the removal court." Stapleton v. $2,438,110, 454 F.2d 1210, 1217-18 (3d Cir. 1972) (citing Minnesota v. United States, 305 U.S. 382, 388-89 (1939)). Therefore, Plaintiff's argument that because the United States removed this case to this Court, it cannot address

-7-

Case 1:04-cv-00422-WYD-MJW

Document 65

Filed 06/27/2005

Page 8 of 11

whether it has jurisdiction over Plaintiff's claims under the Quiet Title Act and whether Plaintiff has standing to bring his R.S. 2477 claim is without merit. II. THE COURT SHOULD NOT AMEND ITS ORDER TO ALLOW AN INTERLOCUTORY APPEAL Ramey requests in the alternative that this Court amend its order to allow for an interlocutory appeal under 28 U.S.C. § 1292(b). An interlocutory appeal is appropriate when: (1) an order is not otherwise appealable; and (2) the district judge is "of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion"; and that an "immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). This Court's order on summary judgment does not meet these criteria. First, the order is otherwise appealable, because under Fed. R. Civ. P. 54(b), the Court could certify that the judgment is appealable. The Court has already expressly directed the Clerk to enter judgment in favor of the United States and against Plaintiff on all of Plaintiff's claims against the United States. Thus, if the Court makes the express determination that "there is no just reason for delay," and that the entry of judgment in favor of the United States is final, the order will be appealable under Fed. R. Civ. P. 54(b). Second, there is no controlling question of law as to which there is a substantial ground for difference of opinion. Ramey references the "complete lack of decisions from the Colorado state courts regarding "standing" of a property owner to bring an action to declare existence of a public road . . . ." However, Ramey's standing to bring an action against the United States for

-8-

Case 1:04-cv-00422-WYD-MJW

Document 65

Filed 06/27/2005

Page 9 of 11

declaration of a public road is controlled by federal law, not state law. Moreover, federal law is clear. As this Court held, under U.S. Supreme Court and Tenth Circuit precedent, Ramey does not have standing to bring such a claim against the United States. Therefore, there is no controlling question of law that is unsettled. Third, the outcome of any appeal would not materially advance the ultimate determination of the litigation. Ramey's claims against the remaining defendants are still pending even though the Court has dismissed his claims against the United States. Those claims will be decided under Colorado law, and state court is the proper forum for deciding them. Therefore, Ramey's request that the Court's Order should be amended to provide for an interlocutory appeal should be denied. Alternatively, the Court could certify the judgment as appealable under Fed. R. Civ. P. 54(b). CONCLUSION Therefore, this Court should deny Ramey's request that it reverse its order granting the United States' motion for summary judgment. The Court should also deny Ramey's request for an order allowing for an interlocutory appeal. The issues in this case do not meet the standard for an interlocutory appeal under 28 U.S.C. § 1292(b).

-9-

Case 1:04-cv-00422-WYD-MJW

Document 65

Filed 06/27/2005

Page 10 of 11

Respectfully submitted this 27th day of June, 2005. WILLIAM J. LEONE Acting United States Attorney

s/ Roxane J. Perruso Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0127 [email protected] Counsel for the United States

- 10 -

Case 1:04-cv-00422-WYD-MJW

Document 65

Filed 06/27/2005

Page 11 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on June 27, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: David S. Williamson, Esq. Counsel for Plaintiff [email protected] Kenneth D. Robinson, Esq. Counsel for Defendant Mark Boslough [email protected] Leslie Wright Lacey, Esq. Counsel for Defendant Boulder County [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand- delivery, etc.) indicated by the nonparticipant's name: Helena Jones-Siddle, Esq. Office of the General Counsel USFS-USDA 740 Simms Street, Room 309 Golden, CO 80401 [email protected] (E-Mail)

s/Roxane J. Perruso Assistant U.S. Attorney Attorney for Defendants United States Attorney's Office 1225 17 th Street, Suite 700 Denver, CO 80202 Phone: 303-454-0100 [email protected] - 11 -