Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01382-ZLW-KLM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01382-ZLW-PAC KENNETH E. PEPER, Plaintiff, v. DEPARTMENT OF AGRICULTURE OF THE UNITED STATES OF AMERICA; ANN M. VENEMAN, Secretary in her official capacity; FOREST SERVICE OF THE UNITED STATES OF AMERICA; and DALE BOSWORTH, as Chief in his official capacity, Defendants.

DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR PRE-TRIAL HEARING AND ORAL ARGUMENT ON DEFENDANTS' RULE 12 MOTION TO DISMISS

Defendants, the United States Department of Agriculture; Ann M. Veneman, Secretary in her official capacity; the United States Forest Service ("Forest Service"); and Dale Bosworth, as Chief in his official capacity (collectively the "United States") by and through undersigned counsel, submit this response opposing Plaintiff's motion on the following grounds: FAILURE TO CONFER Plaintiff failed to confer with undersigned counsel pursuant to D.C.COLO.LCivR 7.1A, regarding his motion. The United States opposes Plaintiff's motion on the following grounds.

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PROCEDURAL POSTURE OF THE CASE Briefing on the United States' motion to dismiss was completed on October 28, 2004. On March 3, 2005, Magistrate Judge Coan issued her Report and Recommendation, recommending that Plaintiff's complaint be dismissed in its entirety. On April 4, 2005, Plaintiff filed written objections to Magistrate Judge Coan's Report and Recommendation, and the United States responded to those written objections on April 14, 2005. ARGUMENT If the Court believes that oral argument will assist the Court in its decision on Magistrate Judge Coan's Report and Recommendation, the United States will be happy to appear before the Court at oral argument. In this case, however, oral argument does not appear to be necessary because the issues are legal not factual and under the applicable legal precedent it is clear that this Court does not have jurisdiction over Plaintiff's claims. Plaintiff asserts that this Court has subject matter jurisdiction pursuant to the Quiet Title Act. Pl. Mot. at ¶¶ 2,3. The Quiet Title Act provides a limited waiver of sovereign immunity for civil actions brought "to adjudicate a disputed title to real property in which the United States claims an interest . . . ." 28 U.S.C. § 2409a(a). The Quiet Title Act is the exclusive means by which an adverse claimant can challenge the United States' title to real property. See Block v. North Dakota, 461 U.S. 273, 286 (1983). Magistrate Judge Coan correctly concluded that the Court lacks subject matter jurisdiction over Mr. Peper's claim that the Road is a public highway under R.S. 2477, recodified at 43 U.S.C. § 932 (1938) (repealed 1976). (Doc. 19, Recommendation at 5-6). Tenth Circuit precedent and persuasive authority from Colorado United States District Courts establish

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that Mr. Peper lacks standing to assert this claim, because R.S. 2477 does not confer a property interest on Mr. Peper such that he may bring a claim under the Quiet Title Act. Kinscherff v. United States, 586 F.2d 159, 161 (10th Cir. 1978) (holding that private parties have no cause of action under the Quiet Title Act to assert that a road is a public highway under R.S. 2477); Southwest Four Wheel Drive Assoc. v. Bureau of Land Mgmt., 363 F.3d 1069, 1071 (10th Cir. 2004) ("`[m]embers of the public . . . do not have a `title' in public roads,' and therefore cannot meet the requirements" of the Quiet Title Act) (quoting Kinscherff, 586 F.2d at 160); Staley v. United States, 168 F. Supp. 2d 1209, 1213 (D. Colo. 2001) (dismissing plaintiff's claim for lack of subject matter jurisdiction holding that "under the law of this circuit, Plaintiffs do not have a title interest in a public road that would properly invoke the jurisdiction of the Court"). Magistrate Judge Coan correctly concluded that Mr. Peper's claim for relief for statutory right of access to his property pursuant to ANILCA must be dismissed for failure to exhaust administrative remedies. (Doc. 19, Recommendation at 8-9, § 2). Mr. Peper has not received any adverse decision from the Forest Service on his application for a special use authorization. Even if his application were denied, he must exhaust his administrative remedies, under 36 C.F.R. § 251.82(8) and 36 C.F.R. § 215.11 before seeking judicial review by a federal court. In addition, Congress has enacted legislation that requires exhaustion of administrative decisions issued by the Department of Agriculture. 7 U.S.C. § 6912(e) ("Notwithstanding any other provision of law, a person shall exhaust all administrative appeal procedures established by the Secretary [of Agriculture] or required by law before the person may bring an action in a court

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of competent jurisdiction."). "[N]o one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Coosewoon v. Meridian Oil Co., 25 F.3d 920, 924 (10th Cir. 1994) (quoting McKart v. United States, 395 U.S. 185, 193 (1969)). Magistrate Judge Coan correctly concluded that Mr. Peper's claim for an easement by necessity must be dismissed for failure to state a claim, because common law rules apply only when not preempted by a federal statute. (Doc. 19, Recommendation at 8, § 1). Mr. Peper has a statutory right of access to his property under ANILCA. See 16 U.S.C. § 3210(a), and therefore, his claim for an easement by necessity fails. United States v. Jenks, 129 F.3d 1348, 1353-54 (10th Cir. 1997) (holding that claim for an easement by necessity failed because claimant had access to his property by public road easements, and even if those easements were terminated, he "will still have a statutory right of access under ANILCA and FLPMA, or some other federal statutory scheme, albeit subject to reasonable government regulation"); see also Adams v. United States, 3 F.3d 1254, 1259 (9th Cir. 1993) (holding common law rules are applicable only when not preempted by statute, and plaintiffs did not have a common law easement because all common law claims are preempted by ANILCA and FLPMA when the United States owns the servient estate for the benefit of the public). Therefore, the United States respectfully requests that this Court deny Plaintiff's motion for oral argument and adopt Magistrate Judge Coan's Report and Recommendation and dismiss Plaintiff's complaint.

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RESPECTFULLY SUBMITTED this 2nd day of December, 2005. WILLIAM J. LEONE UNITED STATES ATTORNEY

s/Roxane J. Perruso Roxane J. Perruso Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: 303-454-0127 FAX: 303-454-0404 E-mail: [email protected] Attorney for Defendants

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on December 2, 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 e-mail addresses:

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: Kenneth E. Peper P.O. Box 57 Hygiene, Colorado 80533

s/Roxane J. Perruso Roxane J. Perruso Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: 303-454-0127 FAX: 303-454-0404 E-mail: [email protected] Attorney for Defendants