Garfield County v. SUWA , 424 P.3d 46 ( 2017 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 41IN THE
SUPREME COURT OF THE STATE OF UTAH
GARFIELD COUNTY, KANE COUNTY,
and
STATE OF UTAH,
Appellants,
v.
UNITED STATES OF AMERICA
and
SOUTHERN UTAH WILDERNESS ALLIANCE,
Appellees.
No. 20150335
Filed July 26, 2017
On Certification from the
United States District Court for the District of Utah
The Honorable David Nuffer,
Clark Waddoups, and Robert J. Shelby
Case Nos. 2:11-cv-1045 and
2:10-cv-1073
Attorneys:
Sean D. Reyes, Att’y Gen., Tyler R. Green, Solic. Gen.,
Anthony L. Rampton, Kathy A.F. Davis, Michael S. Johnson,
T. Parker Douglas, John Robinson Jr., Asst. Atty’s Gen.,
Salt Lake City, for appellants Garfield County and State of Utah
Shawn T. Welch, Richard D. Flint, Ryan R. Jibson,
Salt Lake City, Robert C. Van Dyke, Kanab,
for appellant Kane County
John W. Huber, U.S. Att’y, John K. Mangum, Asst. U.S. Att’y,
Salt Lake City, John C. Cruden, Asst. Att’y Gen., Joseph Hosu Kim,
Joanna K. Brinkman, David C. Shilton, Washington, D.C.,
for appellee United States of America
GARFIELD CTY. v. UNITED STATES
Opinion of the Court
Brent V. Manning, Alan C. Bradshaw, Jess M. Krannich,
Mitchell M. Longson, Salt Lake City, Jeffrey M. Gould,
Washington, D.C., Brett De Jarnette, John C. Dwyer,
Heather Dunn Navarro, Palo Alto, CA, Robert B. Wiygul,
Ocean Springs, MS, Stephen H.M. Bloch, Joseph J. Bushyhead,
Salt Lake City, for appellee Southern Utah Wilderness Alliance
Troy L. Booher, Clemens A. Landau, Salt Lake City, for amici
Taxpayer Association of Kane County, Ron Smith, and Jana Smith
Hillary M. Hoffmann, South Royalton, VT, for amicus
Natural Resources and Property Law Professors
Heidi J. McIntosh, Denver, CO, for amicus Coalition to Protect
America’s National Parks and Park Rangers for Our Lands
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
JUSTICE DURHAM and JUSTICE HIMONAS joined.
JUDGE VOROS filed a dissenting opinion, in which
JUDGE TOOMEY joined.
Having recused themselves, ASSOCIATE CHIEF JUSTICE LEE and
JUSTICE PEARCE did not participate herein. COURT OF APPEALS
JUDGES J. FREDERIC VOROS and KATE A. TOOMEY sat.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 This certified question emerges from a number of cases
pending before several federal district courts concerning ownership
of certain rights of way claimed by the State of Utah and several of
its counties pursuant to Revised Statute 2477. The federal courts ask
that we determine whether Utah Code section 78B-2-201(1) and its
predecessor are statutes of limitations or statutes of repose. We hold
that the plain language of both versions of the statute reveals them to
be statutes of repose.1 The application of this interpretation to the
State’s R.S. 2477 rights of way leads to the result that the State
effectively and inevitably lost title to any such rights of way after
_____________________________________________________________
1 There are three potentially relevant versions of the statute: the
2015 version, the 2008 version, and the pre-2008 version. As we
discuss below, the two versions we are called to interpret today are
the 2008 and pre-2008 versions—the two versions that existed prior
to the legislature’s most recent amendments.
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seven years without any opportunity to prevent such loss. This
result—the automatic expiration of the State’s title to R.S. 2477 rights
of way—is absurd and could not have been intended by the
legislature, given that for most of R.S. 2477’s history, no cause of
action existed in the law to protect rights granted under R.S. 2477,
and even after a cause of action was statutorily created, it was
wholly contingent on the federal government’s decision to dispute a
claimed right of way. Because of the absurdity that results from
applying section 201 and its predecessor as statutes of repose in this
context, we construe these statutes as statutes of limitations with
respect to R.S. 2477 right of way claims.
Background
¶ 2 This case concerns the interrelationship of four separate
statutes: Revised Statute 2477, the Federal Land Policy and
Management Act, the Quiet Title Act, and Utah Code section 78B-2-
201(1). The first statute, R.S. 2477, was enacted in 1866 to facilitate
access to mining deposits located under federal lands. The statute
provides “[t]hat the right of way for the construction of highways
over public lands, not reserved for public uses, is hereby granted.”2
In short, R.S. 2477 is a “standing offer of a free right of way over the
public domain.”3 On October 21, 1976, Congress repealed R.S. 2477
with the Federal Land Policy and Management Act (FLPMA).
Accordingly, if a claimant could prove that it had “accepted” a right
of way prior to the repeal date, the claimant had an established and
perfected title to the right of way. Under Utah law, “[a]cceptance of
an R.S. 2477 right of way . . . requires continuous public use for a
period of ten years.”4
¶ 3 Although R.S. 2477 granted title to rights of way by
operation of law—no suit or other action was required to establish
title—a claimant can only protect its title to the right of way by filing
suit against the United States under the federal Quiet Title Act, 28
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2Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43
U.S.C. § 932, repealed by Federal Land Policy & Management Act of
1976, Pub. L. No. 94-579, § 706(a), 90 Stat. 2743, 2793.
3 San Juan Cty. v. United States, 754 F.3d 787, 791 (10th Cir. 2014)
(citation omitted).
4 S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735, 771
(10th Cir. 2005), as amended on denial of reh’g (Jan. 6, 2006).
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GARFIELD CTY. v. UNITED STATES
Opinion of the Court
U.S.C. section 2409a (QTA).5 The QTA contains its own statute of
limitations, providing state and county claimants twelve years to
assert a claim once the cause of action has accrued. 6 Significantly, a
claimant must wait until title is “disputed” before bringing a claim
under the QTA.7
¶ 4 To protect their alleged title to certain rights of way, Kane
County, Garfield County, and the State of Utah (collectively, State or
State Parties) filed separate lawsuits in 2011 against the United
States. In the proceedings giving rise to the certified question, Kane
County, Garfield County, and the State claim 1,510 rights of way. In
addition to those proceedings, the State and various counties have
initiated more than 20 separate cases to perfect title to several
thousand more R.S. 2477 rights of way. There are accordingly now
multiple cases pending before multiple judges of the Utah federal
district court regarding at least 12,000 claimed R.S. 2477 rights of
way, with each right of way claim involving unique facts.8
¶ 5 On June 27, 2014, the Southern Utah Wilderness Alliance
(SUWA), which acts as a limited permissive intervenor in the Kane
County and Garfield County cases, filed a memorandum with the
United States District Court in support of the United States’ Motion
for Partial Dismissal, arguing that Utah Code section 78B-2-201 and
its predecessor are seven-year statutes of repose that began to run as
_____________________________________________________________
5 See Block v. N.D. ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 286
(1983) (The QTA is “the exclusive means by which adverse claimants
[can] challenge the United States’ title to real property.”).
6 28 U.S.C. § 2409a(g), (i).
7 Id. § 2409a(a) (“The United States may be named as a party
defendant in a civil action under this section to adjudicate a disputed
title to real property in which the United States claims an interest . . . .”
(emphases added)); see also Kane Cty. v. United States, 772 F.3d 1205,
1210–11 (10th Cir. 2014) (noting that the United States must “‘claim[]
an interest’ in the property at issue” and that “title to the property”
must be “disputed” before a court has “jurisdiction over a QTA
claim” (citation omitted)).
8 As the State notes, “[t]he roads . . . vary widely in character,
ranging from two-lane, fully surfaced arterial connectors to two-
track access routes.” The State claims that these rights of way
“remain in use for many purposes, including ranching, mineral
development, fishing, hunting, sightseeing, recreation, and
exploring.”
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to each individual right of way when the State first accepted the road
pursuant to R.S. 2477. Because the State could not have obtained an
R.S. 2477 right of way later than October 21, 1976—the date Congress
enacted the FLPMA and repealed R.S. 2477—SUWA argued that the
State was required to assert claims under the QTA no later than 1983,
seven years after October 21, 1976. The federal district courts decided
that section 201 and its predecessor could prove dispositive in the
proceedings. Consequently, they certified to us the limited legal
question of whether section 78B-2-201 and its predecessor are
statutes of repose or statutes of limitations within this context.
Standard of Review
¶ 6 As noted, this case comes to us by certified question
emerging from a number of proceedings before several judges of the
United States District Court for the District of Utah. “A certified
question from the federal district court does not present us with a
decision to affirm or reverse a lower court’s decision; as such,
traditional standards of review do not apply.”9 Accordingly, we
merely answer the question presented, leaving “resolution of the
parties’ competing claims and arguments . . . up to the federal courts,
which of course retain jurisdiction to decide [the] case.” 10 We have
jurisdiction pursuant to Utah Code section 78A-3-102(1) and article
VIII, section 3 of the Utah Constitution.
Analysis
¶ 7 The certified question asks whether Utah Code section 78B-
2-201(1) and its predecessor are statutes of limitations or statutes of
repose. The predecessor to section 201(1), which was in effect from
the time it was enacted in 1872 until 2008, provided as follows:
[1] The state will not sue any person for or in respect to
any real property, or the issues or profits thereof, by
reason of the right or title of the state to the same,
unless:
[a] such right or title shall have accrued within
seven years before any action or other
proceeding for the same shall be commenced; or
_____________________________________________________________
9U.S. Fid. & Guar. Co. v. U.S. Sports Specialty Ass’n, 2012 UT 3, ¶ 9,
270 P.3d 464 (citation omitted).
10Fundamentalist Church of Jesus Christ of Latter-Day Saints v.
Horne, 2012 UT 66, ¶ 10, 289 P.3d 502.
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GARFIELD CTY. v. UNITED STATES
Opinion of the Court
[b] the state or those from whom it claims shall
have received the rents and profits of such real
property, or some part thereof, within seven
years.11
The legislature amended the statute in 2008 to read:
[1] The state may not bring an action against any
person for or with respect to any real property, its
issues or profits, based upon the state’s right or title to
the real property, unless:
[a] the right or title to the property accrued
within seven years before any action or other
proceeding is commenced; or
[b] the state or those from whom it claims
received all or a portion of the rents and profits
from the real property within the immediately
preceding seven years.12
The certified question asks us to interpret these two versions of the
statute and determine whether they should be construed as statutes
of repose or statutes of limitations.13
¶ 8 Although not directly addressed in the certified question,
two bills passed in 2015 bear on our decision. First, the legislature
again amended section 201 to add a new subsection, though it left
the remainder of the statute—including the portions relevant to our
discussion today—unchanged. This new subsection states that “[t]he
_____________________________________________________________
11UTAH CODE § 78-12-2 (2007) (alterations to numbering to reflect
current numbering).
Id. § 78B-2-201 (2009) (alterations to numbering to reflect current
12
numbering).
13 The Order of Certification, though issued after the legislature
amended section 201 in 2015, makes clear that the federal district
courts are not asking us to interpret the 2015 version of the statute,
but rather the two prior iterations of the statute: the pre-2015, post-
2008 version of the statute and the pre-2008 version of the statute,
which was substantively unaltered from the version originally
enacted in 1872. Thus, unless otherwise indicated, when we refer to
section 78B-2-201, we are referring to the pre-2015, post-2008 version
of the statute. And when we refer to the predecessor to section 201,
we are referring to the pre-2008 version.
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statute of limitations in this section runs from the date on which the
state or those from whom it claims received actual notice of the facts
giving rise to the action.”14 This amendment was expressly made
retroactive to March 12, 1953.15 The second bill passed in 2015
resulted in section 78B-2-118. This new statute states that “[a]ctions
against the federal government regarding real property and that are
subject to the federal Quiet Title Act . . . do not expire under this
chapter.”16 This statute was also made retroactive to October 25,
1972.17
¶ 9 There are three main issues raised by the parties in response
to the certified question: first, whether we should even address the
certified question due to the possibility of issuing an advisory
opinion; second, whether, using our normal tools of statutory
interpretation, we should interpret section 78B-2-201 and its
predecessor as statutes of limitations or statutes of repose; and third,
if we interpret these statutes as statutes of repose, whether we
should reform the statutes under our absurdity doctrine. We address
each issue in turn and conclude that we should address the question
on its merits, and that though the plain language of both iterations of
the statute renders them statutes of repose, the result of applying
such an interpretation to the State’s R.S. 2477 rights of way works
such an overwhelmingly absurd result that we construe the statutes
as statutes of limitations as to such claims.
I. We Will Answer the Certified Question, Leaving Resolution of
How and Whether Our Interpretation Applies to the Underlying
Cases to the Federal Courts
¶ 10 Prior to interpreting section 78B-2-201 and its predecessor,
we first address whether we should decline to answer the certified
question. The State has advanced several reasons why our
interpretation of these statutes does not apply to the underlying case:
(1) the 2015 bills amending section 201 and adding section 78B-2-118
_____________________________________________________________
14 UTAH CODE § 78B-2-201(2) (2015).
15See 2015 Utah Laws 2806 (“This bill has retrospective operation
to March 12, 1953.”).
16 UTAH CODE § 78B-2-118.
17See 2015 Utah Laws 324 (“This bill has retrospective operation
to October 25, 1972.”).
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GARFIELD CTY. v. UNITED STATES
Opinion of the Court
are retroactive and control the litigation;18 (2) section 78B-2-102
requires the courts to apply the QTA’s twelve-year statute of
limitations instead of the one found in section 201 and its
predecessor;19 (3) the limitation found within the statutes at issue
applies only to suits by “the state” against a “person,” which
excludes suits by counties against the federal government;20 and (4)
article XX, section 1 of the Utah Constitution precludes the
application of either of the statutes at issue. 21 Thus, according to the
State, because the determination of whether section 78B-2-201 and its
_____________________________________________________________
18 The amendment to section 201 indicates a legislative intent to
clarify that the section is and was a statute of limitations. See UTAH
CODE § 78B-2-201(2) (2015). Section 118 states that “[a]ctions against
the federal government regarding real property and that are subject
to the [QTA] do not expire under this chapter.” Id. § 78B-2-118. The
United States and SUWA argue that the legislature cannot properly
make these amendments retroactive and that, even if it could, such
retroactivity would not be constitutional under either the federal or
Utah constitutions.
19 Section 102 states that the limitation periods found in chapter 2
of title 78B apply “except in specific cases where a different
limitation is prescribed by statute.” Thus, the State argues that the
QTA’s statute of limitations trumps the Utah statute. The United
States and SUWA point out that the applicability of the QTA statute
of limitations does not necessarily preclude the applicability of a
Utah statute of repose because it is possible to have both a federal
statute of limitations and a state statute of repose apply to a
particular claim. See CTS Corp. v. Waldburger, 134 S.Ct. 2175, 2185–88
(2014).
20 The State argues that “state” is defined in such a way that it
does not include counties. See UTAH CODE § 68-3-12.5(28). We have
never interpreted this section, and we conclude that we need not do
so here because it is unnecessary to our resolution of the question
certified to us.
21 The State points to previous cases that held that this portion of
the Utah Constitution prohibited the application of section 201 or its
predecessor to certain claims involving lands granted to the State in
trust by the Enabling Act. See Van Wagoner v. Whitmore, 199 P. 670,
675 (Utah 1921). It is not clear, however, whether R.S. 2477 operates
in a similar way as the Enabling Act such that the rights of way
granted under that statute would become part of the public trust.
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predecessor are statutes of repose or statutes of limitations will not
affect the outcome of the case for some or all of these reasons, we
should avoid issuing an advisory opinion and refuse to answer the
certified question. The United States and SUWA challenge each of
the reasons propounded by the State, arguing that none of them
justifies a refusal to answer the certified question. Although it
appears that the arguments raised by each of the parties have some
merit, the existence of arguments about the ultimate applicability of
section 201 or its predecessor to the underlying cases in light of these
other statutes or constitutional provisions—and hence the
applicability of our interpretation of the actual statutes at issue—
does not mean that we should refuse to answer the certified
question.
¶ 11 “On certification, we answer the legal questions presented
without resolving the underlying dispute.”22 Because traditional
standards of review do not apply, we are not called upon to review
the federal court’s conclusions of law or fact.23 The district courts
involved in these cases stated in the Order of Certification that
section 78B-2-201 and its predecessor were potentially controlling
and dispositive of the R.S. 2477 cases. They did so even after
receiving the State’s suggestion of mootness based on section 118.24
And although it is not clear whether the federal district courts had
the opportunity to address all of the arguments raised by the State,
the United States, and SUWA, those courts’ conclusion that these
statutes could be dispositive is a legal conclusion that we are not in a
position to review on certification and must accept for purposes of
answering the certified question.
_____________________________________________________________
22 U.S. Fid. & Guar. Co. v. U.S. Sports Specialty Ass’n, 2012 UT 3,
¶ 9, 270 P.3d 464 (emphasis added) (citation omitted).
23 See id. (“A certified question from the federal district court does
not present us with a decision to affirm or reverse a lower court’s
decision; as such, traditional standards of review do not apply.”
(citation omitted)); Ray v. Wal-Mart Stores, Inc., 2015 UT 83, ¶¶ 63–65,
359 P.3d 614 (stating that our approach to answering a certified
question requires us to “simply accept the facts the federal district
court asked us to assume for purposes of certification,” without
attempting to “resolv[e] any underlying factual disputes”).
24 The State did not object to or otherwise attempt to modify the
certification order.
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GARFIELD CTY. v. UNITED STATES
Opinion of the Court
¶ 12 With the exception of the question of whether the United
States is a “person” for purposes of section 201 and its predecessor,25
_____________________________________________________________
25 This question, unlike the other arguments raised by the State,
can be fairly said to be included within the scope of the certified
question, so we asked the parties to provide supplemental briefing
on the question of whether the United States is a “person” for
purposes of section 201 and its predecessor. We appreciate the
parties’ thorough briefing on this important question. That briefing
demonstrates that there are persuasive arguments both for and
against reading the word “person” to include the United States.
All versions of the statute provide that the State will not sue “any
person” under certain circumstances. The State argues that there is a
“longstanding interpretive presumption that ‘person’ does not
include the sovereign.” Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens,
529 U.S. 765, 780 (2000). So, in the State’s view, section 201 and its
predecessor do not apply to the United States at all. But the United
States contends that the plain meaning of the word “person”
includes “any property owner.” It also relies on the 2010
amendments to the general definitions statute, which defines
“person” broadly as including political subdivisions, government
offices, “other bod[ies] of government,” and “any other organization
or entity.” UTAH CODE § 68-3-12.5(17). SUWA argues that the pre-
2010 versions of the general definitions statute are the relevant ones,
and those versions define “person” to include a “body politic.” In
SUWA’s and the United States’ view, the United States is a “body
politic,” and thus a “person” for purposes of these statutes.
A rich body of law has grown up around how to construe the
word “person” when it is employed in statute. On one hand, the
United States Supreme Court has long recognized an “often-
expressed understanding that ‘in common usage, the term “person”
does not include the sovereign, [and] statutes employing the [word]
are ordinarily construed to exclude it.’” Will v. Mich. Dept. of State
Police, 491 U.S. 58, 64 (1989) (alterations in original) (quoting Wilson
v. Omaha Indian Tribe, 442 U.S. 653, 667 (1979) (quoting United States
v. Cooper Corp., 312 U.S. 600, 604 (1941))). This principle has come to
be known as the “artificial-person canon.” ANTONIN SCALIA & BRYAN
A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 273
(2012) (“The word person includes corporations and other entities,
but not the sovereign.”). But the question appears to be more
nuanced than this formulation might convey. Some courts have
applied a “benefit-burden” rule, such that a court will construe the
word “person” to include the sovereign when it would be to the
(Continued)
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sovereign’s benefit, but not when it would be to the sovereign’s
detriment. See 3 NORMAN J. SINGER & J.D. SHAMBIE SINGER,
SUTHERLAND ON STATUTES AND STATUTORY CONSTRUCTION § 62:2 (7th
ed. 2016) (“[A] general statute which is beneficial to the sovereign
will be liberally interpreted to secure for it the same rights, privileges
and protection granted to individuals.”); see also Stanley v. Schwalby,
147 U.S. 508, 519 (1893) (“Although not bound by statutes of
limitation, the United States, as we have seen, were entitled to take
the benefit of them . . . .”). But other courts appear not to recognize
any type of benefit-burden rule and have concluded that, without
express definition, the sovereign is not a “person” even where the
statute would work a clear benefit to it. See In re Fox’s Will, 52 N.Y.
530, 535 (1873) (“[N]o authority has been referred to showing that
the word person, when used in a statute, may, without further
definition, be held to embrace a State or nation.”), aff’d sub nom.
United States v. Fox, 94 U.S. 315 (1876).
This question is even more nuanced in Utah, given that the
legislature has defined “person” in the general definitions statute.
We agree with SUWA that, given that the events in this case took
place before 2010, the relevant version of the definitions statute
appears to be the pre-2010 versions, which define “person” to
include “bodies politic.” See Revised Statutes of Utah § 65-2-2498(5)
(1898); UTAH CODE § 68-3-12(2)(o) (2004). But it is not clear whether
the United States is a “body politic.” Some courts have stated that a
sovereign is a “body politic,” but other courts have held that that
term cannot be construed to encompass the sovereign. Compare
Cotton v. United States, 52 U.S. 229, 231 (1850) (“Although as a
sovereign the United States may not be sued, yet as a corporation or
body politic they may bring suits to enforce their contracts and
protect their property, in the State courts, or in their own tribunals
administering the same laws.”) with Des Moines Cty. v. Harker, 34
Iowa 84, 86 (1871) (“The legislature does not, when prescribing a rule
for the State, call it a ‘body politic and corporate.’ It is not probable
such a designation can be found in the entire history of our
legislation.”). So the pre-2010 definition of “person” does not
definitively encompass the United States.
Even if we were to look to the 2010 amendments for the
definition of “person,” it is still not clear that that definition includes
the United States. The 2010 amendments provide that “person”
means, among other things, “a political subdivision; a government
office, department, division, bureau, or other body of government;
and any other organization or entity.” UTAH CODE § 68-3-12.5(17)(i),
(Continued)
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GARFIELD CTY. v. UNITED STATES
Opinion of the Court
what the State is asking us to do in response to the certified question
is to essentially ignore the specific question asked—a question of
statutory interpretation—and instead address myriad questions
about the future application of our interpretation. This is
inappropriate.26 Our job “is to resolve disputed questions of state
law in a context and manner useful to the resolution of a pending
federal case.”27 To be sure, we appropriately consider the specific
circumstances and particular context of the underlying case when
answering a certified question, which helps ensure that we are not
issuing an abstract opinion on a matter of interest to the federal
courts.28 But though our answer should “facilitat[e] the disposition
(j), (k). Some of these terms, for example “other body of
government” and “any other organization or entity,” might appear
broad enough to include the United States. But the canons of ejusdem
generis and noscitur a sociis would suggest that these catch-alls cannot
broaden the otherwise limited list, where each enumerated item is a
government subdivision, and none is a sovereign.
Contrary to the dissent’s assertion, it is not clear that the
constitutional avoidance canon is sufficient to resolve this question.
Cf. infra ¶ 79 n.90. While it is true that a state may not discriminate
against the United States, it is not clear that providing a statute of
repose or limitations defense to others, but not to the sovereign—
who is protected from suit, in the ordinary course of events, by the
doctrine of sovereign immunity—would constitute “discriminating”
against the United States. For example, it could be said that it is
solely by virtue of its own voluntary waiver, and not the state law,
that the United States finds itself in a different position than other
property owners.
Given the strength of these competing arguments, we find it
sufficient to assume for purposes of this opinion that the word
“person” in section 201 and its predecessor includes the United
States.
26 See Egbert v. Nissan N. Am., Inc., 2007 UT 64, ¶ 20, 167 P.3d 1058(noting that the parties disagreed about a legal issue related to but
not addressed by the certified question and had “briefed [the] issue
at length,” but declining to address the issue “[b]ecause the question
of who bears the burden of proof was not certified to us”).
27Fundamentalist Church of Jesus Christ of Latter-Day Saints v.
Horne, 2012 UT 66, ¶ 8, 289 P.3d 502 (emphasis added).
28Id. ¶¶ 8–9. Indeed, as we discuss below, we interpret section
201 and its predecessor as statutes of repose in the abstract using our
(Continued)
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of the underlying federal case,” we have recognized “that our
opinion on certification will [not] itself resolve the underlying
federal case. The resolution of the parties’ competing claims and
arguments will be up to the federal courts, which of course retain
jurisdiction to decide this case under the law as they see it.” 29 Thus,
although the district courts’ “decision will be informed by our
resolution of the state law issues presented,” “[t]hose courts retain
the independent authority to decide whether and to what extent to
apply our law or to recognize limitations on or caveats to it.”30
¶ 13 Our recognition that the federal courts retain the authority
to decide “whether . . . to apply our law,” especially when it
intersects with federal law as it does here,31 necessarily entails a
recognition that our answer to a certified question may not always
end up being dispositive. This has not prevented us from answering
certified questions in the past, and it does not require us to decline to
answer the question certified to us today.32 Accordingly, we now
usual plain language approach to statutory interpretation. Despite
this conclusion, we apply another interpretive tool, the absurdity
doctrine, and conclude that the statutes are absurd as applied to the
State’s R.S. 2477 claims. Thus, we answer the certified question—the
proper interpretation of the statute—within the context of the
underlying cases. But we do not need to reach beyond section 201—
beyond the scope of the certified question—to make this analysis.
29 Id. ¶¶ 9–10.
30 Id. ¶ 10 (emphasis added).
31 Id.
32 To be sure, we may not answer a question of state law when
there is a serious question as to the jurisdiction of the federal court
over the underlying case or if the question asks us to opine on a
purely hypothetical situation. In either circumstance, there is a high
risk of issuing an unconstitutional advisory opinion. See, e.g., Utah
Republican Party v. Cox, 2016 UT 17, ¶¶ 8–11, 373 P.3d 1286 (per
curiam) (refusing to answer a certified question because it was
“purely hypothetical and not ripe for review”); Endow v. Utah Transit
Auth., No. 20140024-SC, 2015 WL 4394047, at *1 (Utah July 17, 2015)
(revoking “our acceptance of the certified question as improvident”
to avoid the possibility of issuing an advisory opinion because there
were “serious jurisdictional concerns” with whether the federal
district court had subject matter jurisdiction). But neither of these
circumstances is before us today. The mere fact that issues of fact
(Continued)
13
GARFIELD CTY. v. UNITED STATES
Opinion of the Court
turn to a discussion of the certified question: whether section 78B-2-
201 and its predecessor are statutes of limitations or statutes of
repose. And under the standard discussed above, we answer this
question within the context of the particular circumstances in which
the question arose—the State’s claims to rights of way under R.S.
2477.
II. The Plain Language of Both Iterations of the Statute
Unmistakably Renders Them Statutes of Repose
¶ 14 The federal district courts have asked us to decide whether
Utah Code section 78B-2-201 and its predecessor are statutes of
limitations or statutes of repose. Section 201, prior to its amendment
in 2015,33 states in its entirety:
[1] The state may not bring an action against any
person for or with respect to any real property, its
issues or profits, based upon the state’s right or title to
the real property, unless:
[a] the right or title to the property accrued
within seven years before any action or other
proceeding is commenced; or
[b] the state or those from whom it claims
received all or a portion of the rents and profits
from the real property within the immediately
preceding seven years.34
The predecessor to section 201 read as follows:
[1] The state will not sue any person for or in respect to
any real property, or the issues or profits thereof, by
reason of the right or title of the state to the same,
unless:
and law remain to be resolved that may impact the applicability of
our answer to the underlying case does not warrant our refusal to
answer the certified question. Otherwise we would require federal
courts to exhaust every other possible dispositive argument and
resolve every factual dispute before certifying a question to us. We
have not required this in the past and do not do so now.
33 As noted above, the federal courts have not asked us to
interpret the post-2015 amendment version of the statute.
34 UTAH CODE § 78B-2-201 (2009) (alteration to numbering to
reflect current numbering).
14
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[a] such right or title shall have accrued within
seven years before any action or other
proceeding for the same shall be commenced; or
[b] the state or those from whom it claims shall
have received the rents and profits of such real
property, or some part thereof, within seven
years.35
The language found in subsection (1)(a) of both versions of the
statute—“right or title . . . accrued within seven years before any
action or other proceeding [is] commenced”—controls this issue. The
question is whether this language means that the State cannot assert
a cause of action related to real property except within the first seven
years after the accrual of its right or title to the property—a statute of
repose—or whether it means that the State cannot bring suit except
within seven years after the accrual of a cause of action based on its
right or title to the real property—a statute of limitations.
¶ 15 “When interpreting a statute, it is axiomatic that this court’s
primary goal ‘is to give effect to the legislature’s intent in light of the
purpose that the statute was meant to achieve.’”36 In discerning this
purpose, “[t]he best evidence of the legislature’s intent is ‘the plain
language of the statute itself.’”37 In general, “[w]here a statute’s
language is unambiguous and provides a workable result, we need
not resort to other interpretive tools, and our analysis ends.”38 After
reviewing the plain language of the two relevant versions of the
statute, we conclude that they unmistakably operate as statutes of
repose.
¶ 16 “Whether a statute that bars or terminates a claim for relief
is a statute of limitations or a statute of repose depends on the nature
of the statute and the manner in which it operates to cut off the legal
_____________________________________________________________
35 UTAH CODE § 78-12-2 (2007) (alterations to numbering to reflect
current numbering). The language of this iteration of section 201
remained substantively unaltered from its enactment in 1872 until
the 2008 amendments.
36 Biddle v. Wash. Terrace City, 1999 UT 110, ¶ 14, 993 P.2d 875(citation omitted).
37 State v. Miller, 2008 UT 61, ¶ 18, 193 P.3d 92 (citation omitted).
38Torrie v. Weber Cty., 2013 UT 48, ¶ 11, 309 P.3d 216 (citation
omitted).
15
GARFIELD CTY. v. UNITED STATES
Opinion of the Court
right of a person to obtain a remedy for an injury.”39 We first
described the difference between the two types of statutes in Berry ex
rel. Berry v. Beech Aircraft Corp.40 Prior to Berry, we used the terms
almost interchangeably, without recognizing a difference between
them.41 In Berry, however, we clarified that
[a] statute of limitations requires a lawsuit to be filed
within a specified period of time after a legal right has
been violated or the remedy for the wrong committed
is deemed waived. A statute of repose bars all actions
after a specified period of time has run from the
occurrence of some event other than the occurrence of
an injury that gives rise to a cause of action. . . .
....
. . . . Therefore, a statute of repose may bar the filing of
a lawsuit even though the cause of action did not even
arise until after it was barred and even though the
injured person was diligent in seeking a judicial
remedy.42
Accordingly, we distinguish statutes of limitations and statutes of
repose by looking to the event that triggers the start of the statutory
timeframe: if the trigger is the accrual of a cause of action, it is a
statute of limitation, but if it is some other event, it is a statute of
repose.43
¶ 17 Prior to 2008, the relevant language of section 201 stated that
_____________________________________________________________
39 Stoker v. Workers’ Comp. Fund of Utah, 889 P.2d 409, 411 (Utah
1994)
40 717 P.2d 670, 672 (Utah 1985).
41 See Sun Valley Water Beds of Utah, Inc. v. Herm Hughes & Son,
Inc., 782 P.2d 188, 189 n.5 (Utah 1989) (“[M]any courts and
commentators do not distinguish between statutes of limitations and
repose.”).
42 717 P.2d at 672.
43 See Sun Valley, 782 P.2d at 189 (“A statute of limitations
precludes suit a legislatively imposed number of years after the
accrual of a cause of action. A statute of repose bars suit a specified
number of years after the occurrence of a particular event without
regard to the date of the accrual of the cause of action.”).
16
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The state will not sue any person for or in respect to
any real property . . . by reason of the right or title of
the state to the same, unless . . . such right or title shall
have accrued within seven years before any action or
other proceeding for the same shall be
commenced . . . .44
The 2008 amendment made only small changes. It then read as it
does now:
The state may not bring an action against any person
for or with respect to any real property . . . based upon
the state’s right or title to the real property, unless . . .
the right or title to the property accrued within seven
years before any action or other proceeding is
commenced . . . .45
Accordingly, the 2008 amendment made it clear that the “right or
title” that must have “accrued within seven years before [the] action
or other proceeding” was “right or title to the property” that was the
basis for the state’s claim.
¶ 18 It is clear from its language that the relevant portion of
section 201—both pre- and post-2008 amendment—is a statute of
repose.46 Despite the differences in the language of the two versions
of the statute, the key operative language is the same: the seven-year
timeframe to assert a cause of action based on real property in each
version of the statute begins to run when the State’s “right or title to
_____________________________________________________________
44 UTAH CODE § 78-12-2 (2007).
45 Id. § 78B-2-201 (2009).
46 The State claims that the 2015 amendment clarifies that the
previous iterations of the statute all were intended to operate as
statutes of limitations. The 2015 amendment to the statute does seem
to indicate the legislative intent to transform section 201 in its
entirety into a statute of limitation, and to do so retroactively. The
parties have argued at some length about the retroactivity of this
amendment. But given our conclusion that applying section 201 and
its predecessor as statutes of repose is absurd, and that we
accordingly construe the statutes as statutes of limitations with
respect to the State’s R.S. 2477 claims, we see no need to further
inquire as to the applicability or impact of the 2015 amendment.
17
GARFIELD CTY. v. UNITED STATES
Opinion of the Court
the property accrued.”47 Accordingly, both versions of the statute are
statutes of repose because their limitation periods are not triggered
by the accrual of a cause of action, as would be the case for a statute
of limitations, but some other event—obtaining an interest in real
property—that is not related to the time at which the State is able to
assert a claim. Thus, section 201 and its predecessor are statutes of
repose that cut off the State’s ability to bring an action “for or with
respect to any real property, . . . based upon the state’s right or title
to the real property, unless . . . the right or title to the property
accrued within seven years before any action or other proceeding is
commenced.”48
¶ 19 The State argues that if we interpret these statutes as
statutes of repose, however, it will work such absurd results when
applied in the R.S. 2477 cases that we are required to apply our
absurdity doctrine and reform the statutes. As we discuss below, we
agree and accordingly construe section 201 and its predecessor as
statutes of limitations within the context of the State’s R.S. 2477
claims.
III. We Employ the Absurdity Doctrine and Construe Section 201
and Its Predecessor as Statutes of Limitations with Respect to the
State’s R.S. 2477 Rights of Way
¶ 20 Although section 201 and its predecessor are by their plain
language statutes of repose, the State asks us to apply the absurdity
_____________________________________________________________
47 Id. § 78B-2-201(1) (2009). Cf. id. § 78-12-2 (2007) (limitation
period of a claim “in respect to any real property” triggered when
“such right or title shall have accrued”). Although the State
questions what the statutes mean by referring to a “right” that
accrues, it is clear from the context that they are referring to
circumstances where the State obtains either title to real property—
“the numerous rights and privileges attendant to ownership of
property,” the whole “bundle of sticks,” CFD Payson, LLC v.
Christensen, 2015 UT App 251, ¶ 12 n.5, 361 P.3d 145 (emphasis
added) (citation omitted)—or a right in real property—something
less than title, less than the collection of all of the rights one can have
in real property.
48 UTAH CODE § 78B-2-201(1) (2009). Cf. id. § 78-12-2 (2007) (“The
state will not sue any person for or in respect to any real property . . . by
reason of the right or title of the state to the same, unless . . . such right or
title shall have accrued within seven years before any action or other
proceeding for the same shall be commenced . . . .” (emphasis added)).
18
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doctrine to construe them as statutes of limitations. The State argues
that applying these statutes as statutes of repose leads to the absurd
result that it “automatically lost any interest it had in R.S. 2477 rights
of way by [October 21,] 1983”—the last date it could have asserted a
QTA claim—“even if it could not possibly have filed suit to protect
those interests before that date.” In response, the United States and
SUWA contend that the statutes do not lead to absurd consequences
when applied to the State’s right of way claims because the State
could have filed suit to protect its R.S. 2477 roads before 1983, and,
even if the State could not have filed such a suit, there is nothing
absurd about “leaving title claims unresolved when doing so will
have little to no effect on the practical day-to-day use of the roads at
issue.”
¶ 21 We agree with the State. Applying section 201 and its
predecessor as statutes of repose would effectively deprive the State
of its R.S. 2477 rights of way. As statutes of repose, the statutes
would have been operating since 1872 to cut off the State’s ability to
protect rights of way that accrued since 1866—despite the fact that
no mechanism to defend such property interests had been created
judicially or legislatively until 1972. This is a result “so
overwhelmingly absurd that no rational legislator could ever be
deemed to have supported a literal application of [the statutes’]
text.”49 Accordingly, we employ our absurdity doctrine and construe
section 201 and its predecessor as statutes of limitations for purposes
of the State’s R.S. 2477 claims—a statutory construction that both
avoids the absurd consequences at issue here and preserves the
statutes as operative legislative enactments.50
_____________________________________________________________
49Cox v. Laycock, 2015 UT 20, ¶ 72, 345 P.3d 689 (Lee, J.,
concurring).
50 We note that the State urges this court to consider the effect of
section 201 and its predecessor on all state real property, including
non-R.S. 2477 property interests. The United States and SUWA
oppose this approach, averring that we must instead limit our
absurdity analysis solely to the factual and legal context of this case,
lest we modify the statute on the basis of a case not before us.
Though we do not rely on a consideration of non-R.S. 2477 property
interests in this case to conclude that the statutes work absurd results
when applied to the State’s rights of way, we do note that we need
not wholly disregard how a statute may operate in a hypothetical
legal dispute. Considering how a statute would operate on different
fact patterns in diverse legal contexts can sharpen the boundary
(Continued)
19
GARFIELD CTY. v. UNITED STATES
Opinion of the Court
¶ 22 As we concluded above, section 201 and its predecessor are
by their plain language statutes of repose. Under the plain meaning
rule, “where the language of a statute is clear and unambiguous, our
analysis [normally] ends.”51 But “[a]n equally well-settled caveat to
the plain meaning rule” is the absurdity doctrine, which “states that
a court should not follow the literal language of a statute if its plain
meaning works an absurd result.”52 The literal language of a statute
works an absurd result when the operation of the statute is “so
overwhelmingly absurd that no rational legislator could ever be
deemed to have supported a literal application of its text.”53 The
absurdity doctrine recognizes that although “the plain language
interpretation of a statute enjoys a robust presumption in its favor, it
is also true that [a legislative body] cannot, in every instance, be
counted on to have said what it meant or to have meant what it
said.”54
¶ 23 “[A]s is common to all rules of statutory construction, the
guiding star of the absurd[ity] doctrine is the intent of the pertinent
between an absurd and non-absurd application of the statute. This,
in turn, may enable a court to determine whether the statute as
applied to the case before it leads to an overwhelmingly absurd
result. Because an application of the plain language of section 201
and its predecessor clearly lead to an absurd result in this case, we
need not consider the State’s hypotheticals or the Appellees’
responses to those hypotheticals. We do not, however, foreclose our
ability to consider hypothetical applications of a statute in some
future absurdity doctrine case.
51 State ex rel. Z.C., 2007 UT 54, ¶ 11, 165 P.3d 1206.
52 Id. (alteration in original) (citation omitted).
53 Cox, 2015 UT 20, ¶ 72 (Lee, J., concurring) (“If we are to
maintain respect for the legislature’s policymaking role, and avoid
the temptation to substitute our preferences for its decisions, we
must not override the statutory text with our sense of good policy in
a case in which we deem the statute’s formulation merely unwise or
incongruous.”).
54 FBI v. Abramson, 456 U.S. 615, 638 (1982) (O’Connor, J.,
dissenting) (citation omitted). Because the absurdity doctrine
modifies a statute contrary to its plain meaning, it “is strong
medicine” to be administered “in the rare and limited circumstance
in which the terms as written would lead to an outright absurdity.”
Cox, 2015 UT 20, ¶ 71 (Lee, J., concurring).
20
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legislative body, which limits the application of this canon of
construction.”55 Where a statute works an absurd result, and
legislative history from the pertinent legislative body shows that the
absurd result was unintended,56 the absurdity doctrine preserves
legislative intent by construing the statute in a way that ensures that
the statutory text does not operate in an unintended, absurd
manner.57
_____________________________________________________________
55 State ex rel. Z.C., 2007 UT 54, ¶ 12. The bulk of the dissent’s
criticism of our application of the absurdity doctrine fails to account
for this important limitation. Were we indeed to override the plain
meaning of statutory text whenever we view it as reflecting “a bad
substantive choice,” infra ¶ 49 (citation omitted), it would be fair to
raise separation of powers concerns. But because the absurdity
doctrine asks whether the result mandated by a statute’s plain text is
so absurd that no rational legislator could possibly have intended it,
this doctrine “functions to preserve legislative intent,” rather than
frustrate it. State ex rel. Z.C., 2007 UT 54, ¶ 12.
56 State ex rel. Z.C., 2007 UT 54, ¶ 21 (“Although we generally do
not consult legislative history where the meaning of the statute is
clear, after finding that the plain meaning has been applied in an
absurd manner, we seek to confirm that the absurd application was
indeed unintended by the legislature.”).
57 We note that the scope of the absurdity doctrine—as we have
applied it—is not limited to “scrivener’s error[s],” i.e., statutes whose
plain meaning would create an absurd result in all or nearly all of its
applications. Cf. infra ¶ 47 (citation omitted). Under this doctrine as
we have articulated it, the question is whether the statute creates “an
absurd result,” i.e., a result that is absurd in the particular
circumstances. See, e.g., State ex rel. Z.C., 2007 UT 54, ¶ 24 (concluding
that it would be absurd to apply Utah’s child sex abuse statute—
which undoubtedly has a broad swath of non-absurd applications—
“in situations where no true victim or perpetrator can be
identified”); Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 28, 163 P.3d
615 (concluding that it would be absurd to apply a prejudgment
interest statute where it would “require a defendant to pay interest
on money that ha[d] already been remitted to the plaintiff”). The
United States Supreme Court has applied the doctrine in a similar
way. See United States v. Kirby, 74 U.S. (7 Wall.) 482, 485–86 (1868)
(concluding that it would create an absurd result to apply a statute
criminalizing “‘knowing[ly] and wilfully’ obstruct[ing] or retard[ing]
(Continued)
21
GARFIELD CTY. v. UNITED STATES
Opinion of the Court
¶ 24 As noted above, section 201 prevents
[t]he state [from] bring[ing] an action against any
person for or with respect to any real property . . .
based upon the state’s right or title to the real property,
unless . . . the right or title to the property accrued
within seven years before any action or other
proceeding is commenced[.]58
Applied in this case, section 201 and its predecessor preclude any
legal action with respect to the State’s R.S. 2477 rights of way seven
years after the State obtained right or title to those property interests.
Because a property right that cannot be legally protected is only an
ephemeral right at best,59 these statutes effectively set an expiration
date on every R.S. 2477 right of way obtained by the State at seven
years from the day the State’s title to the right of way was
established by acceptance. Given the history of section 201, R.S. 2477,
and the QTA, this absurd result could not have been intended by the
legislature.
¶ 25 The Mining Act, which permitted the State to obtain title to
rights of way under R.S. 2477, was enacted in 1866. The predecessor
to section 201 was enacted in 1872. Prior to the enactment of the
QTA in 1972, the State had no legal mechanism to protect its vested
rights of way. Because the earliest the State could have raised a QTA
claim was 1972, section 201 and its predecessor ensured that the only
R.S. 2477 roads the State could have protected against federal
intrusion under the QTA were those obtained in and after 1965—
seven years before Congress enacted the QTA. Taken together, these
statutes created a regime where the right to protect title to R.S. 2477
rights of way obtained prior to 1965 automatically expired with
respect to the federal government before any legal mechanism (the
QTA) existed that would have permitted the State to protect its
vested title.
¶ 26 Thus, if the State gained a right of way in 1964, the
predecessor to section 201 would by 1971 have deprived the State of
the passage of the mail” to a sheriff’s arrest of a mail carrier who was
in the process of transporting mail).
58 UTAH CODE § 78B-2-201 (2009). As discussed, the predecessor to
section 201 has the same substantive effect.
59State v. Morgan, 64 P. 356, 361 (Utah 1901) (“A right of which
the possessor cannot avail himself is practically no right.” (citation
omitted)).
22
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any cause of action to protect that property interest against federal
usurpation, and this despite the fact that the only cause of action that
could ever be asserted by the State to protect that property interest
would not be statutorily created until passage of the QTA in 1972,
one year later. And this pattern of accrual and automatic expiration
has been ongoing since 1872. In short, this distinctive interplay
between the predecessor to section 201 and R.S. 2477 prior to the
passage of the QTA has rendered an unknown number of R.S. 2477
roads—gained over a 93 year period—ephemeral, leaving the State
as owner in name only with no legal means to protect its property
interests from the very governmental body that granted them.
¶ 27 Not only does the unique interplay between section 201 or
its predecessor and R.S. 2477 during this period lead to an absurd
result—the accrual of ephemeral property rights—the history of the
legislation “confirm[s] that the absurd application was indeed
unintended by the legislature.”60 As previously noted, the
predecessor to section 201, which is a statute of repose, was first
enacted before a quiet title cause of action had been created that
would permit the State to protect its R.S. 2477 roads against the
federal government. The legislature simply could not have rationally
intended to cut off the State’s ability to protect its rights of way
decades before any cause of action existed in the law to protect those
interests from federal intrusion. Although it is not absurd for a
statute of repose to cut off a cause of action that has not yet
accrued,61 a legislature could not intend the overwhelming absurdity
of a statute of repose that cuts off a cause of action that has not yet
been created either judicially or by statute as a legal remedy.
¶ 28 The absurd result created by application of section 201 and
its predecessor to roads before 1965 is not ameliorated by the
passage of the QTA. Even though the enactment of the QTA in 1972
established a legal remedy that would permit the State to protect its
property rights from federal intrusion, section 201 and its
predecessor—when interpreted as statutes of repose—render that
remedy largely illusory. Before the State can bring a QTA cause of
_____________________________________________________________
60 State ex rel. Z.C., 2007 UT 54, ¶ 21.
61 See, e.g., Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670,
672 (Utah 1985) (“[A] statute of repose may bar the filing of a lawsuit
even though the cause of action did not even arise until after it was
barred and even though the injured person was diligent in seeking a
judicial remedy.”).
23
GARFIELD CTY. v. UNITED STATES
Opinion of the Court
action against the United States, it must show that the federal courts
have jurisdiction over the suit, which requires the federal
government to dispute the State’s title to the property.62 This gives
the federal government full control over the timing of litigation
under the QTA because it can choose when to dispute title and thus
choose when a QTA cause of action will accrue. Accordingly, it can
merely delay any dispute over the State’s R.S. 2477 roads until the
statutes’ seven-year limitation period has lapsed—again, effectively
depriving the State of its property interests. Indeed, Kane County (a
plaintiff in this case) recently had its QTA claims for certain R.S. 2477
rights of way dismissed by the Tenth Circuit because the United
States had not yet disputed the State’s title.63 This means that over
thirty years after section 201 or its predecessor cut off the State’s
ability to defend all R.S. 2477 property interests, Kane County still
could not assert a QTA claim in federal court.64 Thus, even with the
passage of the QTA, which created a cause of action to protect title to
R.S. 2477 rights of way, the idiosyncratic relationship between
section 201 and its predecessor, R.S. 2477, and the QTA generates an
overwhelmingly absurd result. In summary, when section 201 and
its predecessor are applied as statutes of repose to the State’s R.S.
2477 rights of way, the State automatically lost its right to protect
such rights of way obtained prior to 1965 seven years after those
rights of way accrued. And even with passage of the QTA in 1972,
the State’s ability to secure its property interests is wholly contingent
on the federal government’s decision to dispute the State’s title—a
_____________________________________________________________
62 See Kane Cty. v. United States, 772 F.3d 1205, 1210–11 (10th Cir.
2014) (“[F]or a court to have jurisdiction over a QTA claim, the
plaintiff must establish that: (1) the United States ‘claims an interest’
in the property at issue; and (2) title to the property is ‘disputed.’”
(emphasis added) (citation omitted)).
63 Id. at 1213.
64 Any right of way under R.S. 2477 had to be established by 1976,
the year the statute was repealed. Thus, assuming that the State
Parties perfected title to all of their rights of way immediately prior
to the statute’s repeal, under the United States’ view of section 201
and its predecessor, the State Parties were permitted to bring suit to
protect their interests for only the next seven years, until 1983. Thus,
though Kane County’s property right accrued at the latest by 1976,
the United States argues it was prohibited from bringing suit after
1983—despite the fact that Kane County still had no effective legal
mechanism it could use to protect that right even in 2014.
24
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dispute that the United States may well elect to raise only after the
seven-year period prescribed by section 201 and its predecessor. The
State’s inability to protect the property interests granted to it by the
federal government has, in turn, rendered the State’s R.S. 2477 rights
of way inherently ephemeral with respect to the United States; for a
property interest that gives its possessor no defensible rights against
an adverse party is a property interest in name only.65 To be sure,
statutes of repose often cut off a particular cause of action before it
accrues—a non-absurd result. But for most of section 201’s history, it
operated to cut off a cause of action that had not yet been judicially
or legislatively created—a patently absurd result. Ultimately, section
201 and its predecessor go beyond simply prohibiting a cause of
action to effectively placing a seven-year lifespan on the State’s R.S.
2477 property interests. This is an overwhelmingly absurd result that
could not have been intended by the legislative body that originally
enacted the predecessor to section 201.
¶ 29 The dissent, the United States, and SUWA resist this
conclusion with several arguments. The dissent first argues that the
absurd result identified by the majority—“that Utah would enjoy
rights of way granted by the United States without a judicial remedy
for quieting title to them against the United States”—“was the
prevailing law nationwide for 106 years, from the passage of the
Mining Act in 1866 until the passage of the Quiet Title Act in 1972.”66
The dissent further argues that, “[i]f that rule of law in fact
mandated absurd results, surely in 106 years some court somewhere
would have noticed.”67
¶ 30 This argument fails for two reasons. First, the dissent is
mistaken to suggest that, because a law has been in effect for some
time, it is immune from an absurdity analysis. We commonly apply
the absurdity doctrine to statutes that have been on the books for
decades.68 And the dissent fails to recognize the obvious explanation
for why we have not previously reached the conclusion that we
_____________________________________________________________
65Jeffs v. Stubbs, 970 P.2d 1234, 1241–42 (Utah 1998) (“[O]wnership
is a collection of rights to possess, to use and to enjoy property,
including the right to sell and transmit it . . . .” (second alteration in
original) (citation omitted)).
66 Infra ¶ 39.
67 Infra ¶ 40.
68 See Tschaggeny, 2007 UT 37, ¶ 28 (applying the absurdity
doctrine in 2007 to a statute originally enacted in 1975).
25
GARFIELD CTY. v. UNITED STATES
Opinion of the Court
reach today: that the question before us—whether section 201 and its
predecessor create an absurd result as applied to the State’s R.S. 2477
rights of way—is one of first impression for this court. At no time in
these statutes’ history has a party presented a legal vehicle for
answering this question. And as we have explained above, a
plaintiff’s ability to bring a valid suit under the QTA hinges on the
United States’ decision to dispute title to real property, something
that the United States may choose to refrain from doing for years or
decades.69 So the passage of time fails to support the dissent’s
argument.
¶ 31 Second, and more fundamentally, the dissent’s argument
fails to accurately describe the absurd result identified above. The
result created by section 201 is not merely that there was no “judicial
remedy for quieting title” to the State’s R.S. 2477 roads. As the
dissent correctly observes, even without section 201, the State could
not have sued the federal government to defend such property
interests until passage of the QTA in 1972. And if this were the result
at issue, we would be inclined to agree with the dissent that it is not
absurd.
¶ 32 The absurd result is instead that section 201 places a seven-
year expiration date on the State’s R.S. 2477 property, independent of
whether the State could have sued the federal government. Applied
according to its plain language, section 201 would reflect a legislative
policy that the state can own such property only for seven years.
This is an overwhelmingly absurd result. And it is one that the
legislature could not have intended because, as noted above, in 1872
when section 201 was first enacted, no cause of action existed against
the federal government with respect to R.S. 2477 rights of way.
Section 201, therefore, operates in concert with the Mining Act and
the QTA to create a pattern of automatic expiration of title to a right
of way seven years after its creation—a result the legislature could
not have intended.70
_____________________________________________________________
69 See supra ¶ 28.
70 The dissent “cannot see how a non-absurd result mandated by
federal law has become absurd when mandated by state law.” Infra
¶ 54. But this reasoning fails to appreciate “the pertinent legislative
body” whose intent we must ascertain. State ex rel. Z.C., 2007 UT 54,
¶ 12. It may be perfectly rational for the United States Congress to
choose not to waive its sovereign immunity. But it is completely
nonsensical for the Utah legislature to enact a statute cutting off its
(Continued)
26
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¶ 33 Next, the United States and SUWA contend that applying
section 201 and its predecessor as statutes of repose is not absurd
because “counties and the State have alternatives to title suits for
solving [land management] problems, such as applying for rights-of-
way under FLPMA Title V[, 43 U.S.C. §§ 1761–1771].”71 The United
States finds this significant, arguing that our opinion in Marion
Energy, Inc. v. KFJ Ranch Partnership72 stands for the proposition that
“[a] plain language interpretation of a statute will not be found to
create an absurd result where . . . plaintiffs have ‘alternative avenues’
of relief.”73
¶ 34 This argument is unpersuasive. In Marion Energy, we
decided that a Utah State agency, in coordination with a private
corporation, could not condemn a right of way to certain oil and gas
deposits under the relevant eminent domain statute, and concluded
that because the corporation had “alternative avenues of access to its
leased mineral rights,” our interpretation of the eminent domain
statute was not absurd.74 In other words, we “strictly construed”
ability to own these valuable R.S. 2477 rights of way after seven
years.
The dissent further argues that “[t]he absurdity doctrine does not
authorize us to reject the clear meaning of an unambiguous statute
merely because that statute prescribes a result that seems to disfavor
the State.” Infra ¶ 54. Quite right. We agree completely with that
statement, but as we explain, section 201 and its predecessor do a
great deal more than merely “disfavor the State.” We agree with the
dissent that “[a] result is not absurd merely because reasonable
people viewing a statute with the benefit of hindsight would
conclude that the Legislature acted improvidently.” Infra ¶ 55
(citation omitted). But here, we conclude not that the legislature
“acted improvidently” in passing section 201 and its predecessors,
but instead conclude that no rational legislator could have intended
these statutes to operate as statutes of repose under the
circumstances of this case.
71 The dissent also raises this argument. See infra ¶¶ 57–64. And
we find it unpersuasive for the same reasons we now articulate.
72 2011 UT 50, 267 P.3d 863.
73 Quoting id. ¶ 30.
74 Id. ¶¶ 1, 30.
27
GARFIELD CTY. v. UNITED STATES
Opinion of the Court
“any ambiguity in statutory language purporting to grant the power
of eminent domain” “in favor of the property owner.”75
¶ 35 Here, the State does not seek to obtain rights of way by a
statute that is strictly construed against them—rights of way it could
obtain elsewhere. Instead, it seeks to defend the rights it already
possesses in certain R.S. 2477 roads. Title V of FLPMA simply does
not grant the State any means of defending those rights. As noted by
amicus Coalition to Protect America’s National Parks, that statute
“authorizes the Secretaries of Interior and Agriculture to grant
rights-of-way over federal lands for a wide variety of uses and
purposes . . . . subject to various terms and conditions.” We fail to see
how a statute that allows a federal official to grant new rights of way
provides a remedy to protect the disputed rights of way currently
under State ownership. Section 201 and its predecessor work an
absurd result when applied to the State’s R.S. 2477 roads, and the
United States’ arguments to the contrary are unavailing.
¶ 36 Finally, the United States and SUWA argue that “there is
nothing absurd about leaving title claims unresolved when doing so
will have little to no effect on the practical day-to-day use of the
roads at issue.”76 This argument is inapposite and assumes that the
United States will never in the future act in any way inconsistent
with the claimed rights of way—an assumption that strains
credibility. If the United States, through its agencies, decides to
prevent ingress to and egress from these rights of way, section 201
and its predecessor, applied as statutes of repose, deprive the State
of any legal mechanism to obtain an adequate remedy. The United
States’ discretion is a flimsy shield indeed to protect the State’s
lawfully obtained rights of way.
¶ 37 Because the absurd consequence at issue in this case was
unintended by the legislature, we apply our absurdity doctrine. In
_____________________________________________________________
75 Id. ¶ 16.
76 The United States supports this argument by citing Block v.
North Dakota ex rel. Board of University and School Lands, where the
Supreme Court left North Dakota’s title to certain real property
“unresolved” under the QTA. 461 U.S. 273, 291 (1983). The facts of
that case simply have no bearing on our absurdity analysis. Section
201 and its predecessor do not merely leave title “unresolved” under
the QTA. They foreclose any means of defending the rights the State
does hold in R.S. 2477 roads. Thus, Block cannot guide our analysis
here.
28
Cite as: 2017 UT 41Opinion of the Court
order to avoid the absurd result created by the relationship between
section 201, R.S. 2477, and the QTA, we construe section 201 and its
predecessor as statutes of limitations with respect to the State’s R.S.
2477 rights of way.77 Read as statutes of limitations for such cases,
the State has seven years to bring its QTA cause of action from the
date the federal government begins to dispute an R.S. 2477 right of
way—the date the State’s cause of action under the QTA accrues.78
This avoids the absurdity at issue in this case. As for non-R.S. 2477
_____________________________________________________________
77 We note that our decision to construe these statutes as statutes
of limitations accords with legal authorities interpreting similar
statutes around the time the predecessor to section 201 was enacted.
In People v. Arnold, the New York Court of Appeals interpreted New
York’s Nullum Tempus Act, under which
[t]he people of [New York] have agreed that they will
not sue, or implead any person, for or in respect to any
lands, by reason of any right or title of the people to
the same, which shall not have accrued within the
space of forty years before suit for the same be
commenced, unless the people, or those under whom
they claim, shall have received the rents and profits
thereof within the said space of forty years.
4 N.Y. 508, 510 (1851). This statute “was taken from the English
nullum tempus act,” which placed a time limit on the king’s ability to
eject private parties from crown lands. Id. at 511–12. The New York
Court of Appeals interpreted this statute not as one of repose, but as
a statute of limitation, establishing the condition under which a
private party could obtain title to state land by adverse possession.
The fact that courts interpreted similar statutes around the time of
enactment of section 201’s predecessor to be statutes of limitations
further enhances our conclusion that the legislature did not intend
for section 201 to operate as a statute of repose to cut off the State’s
R.S. 2477 rights of way.
78 Valley Colour, Inc. v. Beuchert Builders, Inc., 944 P.2d 361, 364
(Utah 1997) (“[A] cause of action accrues ‘upon the happening of the
last event necessary to complete the cause of action.’” (citation
omitted)).
29
GARFIELD CTY. v. UNITED STATES
Judge Voros, dissenting
state property, we note that section 201 and its predecessor’s
application to such interests is not before us. Our absurdity doctrine
should be cabined to concrete, active legal disputes. Accordingly, we
leave it to a future case to decide whether these statutes give rise to
absurd consequences when applied to non-R.S. 2477 state property
interests.
Conclusion
¶ 38 Despite the many claims raised by the State as to why our
answer to the certified question could be advisory, we leave to the
federal courts the resolution of the application of our interpretation
of section 78B-2-201 and its predecessor to the underlying cases.
Addressing the question on its merits, we conclude that section 201
and its predecessor are, by their plain language, statutes of repose.
But applying these statutes as such to the State’s R.S. 2477 claims
leads to an overwhelmingly absurd result not intended by the
legislature. Thus, we answer the certified question as follows: section
201 and its predecessor are statutes of limitations when applied to
the State’s R.S. 2477 rights of way.
JUDGE VOROS, dissenting:
¶ 39 I respectfully dissent. The majority opinion employs the
absurdity doctrine to override the plain meaning of section 201 on
the ground that it would yield a result so overwhelmingly absurd
that no rational legislator could have intended it. But the claimed
absurd result—that Utah would enjoy rights of way granted by the
United States without a judicial remedy for quieting title to them
against the United States—was the prevailing law nationwide for
106 years, from the passage of the Mining Act in 1866 until the
passage of the Quiet Title Act in 1972.
¶ 40 For this reason, I believe the majority opinion represents the
most expansive application of the absurdity doctrine in American
law. I am unaware of the absurdity doctrine ever being employed, in
Utah or elsewhere, to reject as absurd not a proposed rule of law, but a
long-existing rule of law—in this case, a rule of law governing all
American states and territories for over a century. If that rule of law
in fact mandated absurd results, surely in 106 years some court
somewhere would have noticed. Yet no party cites, nor am I able to
discover, any court questioning the rationality of the rule of law that
we today declare absurd.
30
Cite as: 2017 UT 41Judge Voros, dissenting
¶ 41 That said, I agree with much of the majority opinion. I agree
with Part I insofar as it concludes that questions concerning the
Quiet Title Act‘s twelve-year statute of limitations and the
applicability of article XX of the Utah Constitution exceed the scope
of the certified question. And I agree with the majority’s conclusion
in Part II that the plain language of section 201 and its predecessor
unmistakably renders them statutes of repose.79
¶ 42 The federal courts have requested that we determine
whether Utah Code section 78B-2-201(1) and its predecessor are
statutes of limitations or statutes of repose. I would answer
categorically that they are statutes of repose.80
_____________________________________________________________
79 Like the majority opinion, unless otherwise indicated, I refer to
the pre-2015, post-2008 version of the statute as section 201 and to
the pre-2008 version of the statute as the predecessor to section 201.
Supra ¶ 7 n.13. In addition, I refer to the 1872 version of the statute as
the original predecessor to section 201.
80 Like the majority opinion, I “answer this question within the
context of the particular circumstances in which the question arose—
the State’s claims to rights of way under R.S. 2477.” See supra ¶ 13.
Because the majority opinion concludes that application of the
statute according to its plain language would work an absurd result
in the case before us, it has no need to consider hypothetical
applications of the statute. See supra ¶ 21 n.50.
I likewise do not consider hypothetical applications of section
201, but for a different reason. I follow the approach this court took
in State ex rel. Z.C., 2007 UT 54, 165 P.3d 1206. There, we analyzed the
absurd result question “in the context of the law actually applied
and the act with which the State chose to charge Z.C., not the law
that might have been applied or the act with which the State could
have charged Z.C.” Id. ¶ 17 n.6. And we concluded that “applying
the plain language of the statute in this case produces an absurd
result.” Id. ¶ 17 (emphasis added). For reasons explained in this
opinion, and others both historical and legal, an R.S. 2477 quiet title
claim against the federal government is sui generis. I therefore
express no opinion as to whether any application of the plain
language of section 201 other than the case before us would work an
absurd result.
31
GARFIELD CTY. v. UNITED STATES
Judge Voros, dissenting
I. The Result Mandated by Section 201 and its Predecessor Is Not
Absurd or Even Uncommon
A. The Absurdity Doctrine Is “Strong Medicine.”
¶ 43 The absurdity principle has two branches. “We apply the
absurd consequences canon to resolve ambiguities in a statute. If
statutory language lends itself to two alternative readings, we choose
the reading that avoids absurd consequences.” Utley v. Mill Man
Steel, Inc., 2015 UT 75, ¶ 46, 357 P.3d 992 (Durrant, C.J., concurring in
part and dissenting in part) (footnote omitted). “The absurdity
doctrine, by contrast, has nothing to do with resolving ambiguities.
Rather, we apply this canon to reform unambiguous statutory
language where applying the plain language leads to results so
overwhelmingly absurd no rational legislator could have intended
them.” Id. (Durrant, C.J., concurring in part and dissenting in part).
Invocation of the absurdity doctrine is a “far more momentous step”
than invocation of the absurd consequences canon. Id. ¶ 47 (Durrant,
C.J., concurring in part and dissenting in part).
¶ 44 The absurdity doctrine serves as a crucial safety valve in our
system of justice. Nevertheless, it “is a drastic step, one we have
described as ‘strong medicine, not to be administered lightly.’” Id.
¶ 48 (Durrant, C.J., concurring in part and dissenting in part)
(citation omitted). Because the text of an unambiguous statute “is
almost always irrefutable evidence of the legislature’s intent,” we
will override the plain language under the absurdity doctrine only
where the result it mandates is “so overwhelmingly absurd that no
rational legislator could have intended the statute to operate in such
a manner.” Id. (Durrant, C.J., concurring in part and dissenting in
part).
¶ 45 “In defining the parameters of what constitutes an absurd
result,” we have “note[d] the inherent tension in this canon of
construction between refraining from blind obedience to the letter of
the law that leads to patently absurd ends and avoiding an improper
usurpation of legislative power through judicial second guessing of
the wisdom of a legislative act.” State ex rel. Z.C., 2007 UT 54, ¶ 12,
165 P.3d 1206. “Thus, as is common to all rules of statutory
construction, the guiding star of the absurd results doctrine is the
intent of the pertinent legislative body, which limits the application
of this canon of construction. Rather than controverting legislative
power, the absurd results doctrine functions to preserve legislative
intent when it is narrowly applied.” Id.¶ 46 However, the doctrine is virtually standardless. “Other than
the directive that a result must be so absurd that the legislative body
32
Cite as: 2017 UT 41Judge Voros, dissenting
which authored the legislation could not have intended it, there is no
precise legal standard to determine what legislatures would consider
to be an absurd result.” Id. ¶ 13 (citing Veronica M. Dougherty,
Absurdity and the Limits of Literalism: Defining the Absurd Result
Principle in Statutory Interpretation, 44 AM. U. L. REV. 127, 128 (1994)).
Frequently the determination of absurdity “requires a further
reference to a variety of underlying values that are deeply embedded
in our legal system and in our culture,” Dougherty, supra ¶ 46 at
164–65, or, otherwise stated, “an ill-defined set of background social
values identified on an ad hoc basis by the Court,” John F. Manning,
The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2486 (2003).
Accordingly, “the difficulty of defining absurdity, and the historical
lack of attempts to do so, can . . . be explained in part by the fact that
the principle represents a collection of values that are fundamental to
our legal system, yet seldom made explicit in the course of the
principle’s application.” Dougherty, supra ¶ 46, at 165.
¶ 47 A relatively non-controversial use of the absurdity doctrine
is to correct obvious linguistic errors.
Take the scrivener’s error. Sometimes a statute will
misspell “third party” as “third partly.” Or provide
that the “winning party” rather than the “losing party”
must pay the other side’s reasonable attorney’s fees. In
cases like these, the error in the statute is so
“unthinkable” that any reasonable reader would know
immediately both (1) that it contains a “technical or
ministerial” mistake, and (2) the correct meaning of the
text.
Lexington Ins. Co. v. Precision Drilling Co., 830 F.3d 1219, 1223 (10th
Cir. 2016) (Gorsuch, J., writing for himself alone in this portion of the
opinion) (citing ANTONIN SCALIA & BRYAN A. GARNER, READING LAW
235 (2012)).
¶ 48 But a more substantive use of the doctrine, though
legitimate, nevertheless exists in tension with both the doctrine of
separation of powers and the textualist approach to statutory
interpretation. See, e.g., Manning, supra ¶ 46 at 2391 (“The
Constitution’s sharp separation of lawmaking from judging reflects a
rule-of-law tradition that seeks to preclude legislatures from making
ad hoc exceptions to generally worded laws. By asking judges to
carve out statutory exceptions on the ground that the legislature
would have done so, the absurdity doctrine calls on judges to
approximate the very behavior that the norm of separation seeks to
forbid.”); id. at 2392 (“Thus, for those who accept . . . the textualists’
premises about the legislative process and the constitutional
33
GARFIELD CTY. v. UNITED STATES
Judge Voros, dissenting
structure, a principled understanding of textualism would
necessarily entail abandoning the absurdity doctrine.”). For example,
one federal judge has argued that deploying the absurdity doctrine
to overrule plain statutory text would “risk offending the separation
of powers by purporting to endow a court with the power to
disregard a possible statutory application not because of its linguistic
implausibility but because of a judgment about the implausibility of
its consequences as a matter of social policy.” Lexington Ins. Co., 830
F.3d at 1222 (Gorsuch, J., writing for himself alone in this portion of
the opinion).
¶ 49 The absurdity that the majority sees in section 201 is not of
the non-controversial, linguistic sort. Section 201 is not
“linguistically incoherent.” See United States v. Head, 552 F.3d 640, 643
(7th Cir. 2009), superseded by statute on other grounds, as recognized by
United States v. Anderson, 583 F.3d 504 (7th Cir. 2009). Rather, in the
majority’s view, it “makes a bad substantive choice,” see id.B. Section 201 Mandates a Rule That Prevailed Throughout the
United States For Over a Century.
¶ 50 Read as written, section 201 does not work an absurd result.
The majority asserts that the claimed absurd result flows from the
interplay of section 201 and two federal statutes:
Because the earliest the State could have raised a QTA
claim was 1972, section 201 and its predecessor ensured
that the only R.S. 2477 roads the State could have
protected against federal intrusion under the QTA
were those obtained in and after 1965—seven years
before Congress enacted the QTA. Taken together,
these statutes created a regime where the right to
protect title to R.S. 2477 rights of way obtained prior to
1965 automatically expired with respect to the federal
government before any legal mechanism (the QTA)
existed that would have permitted the State to protect
its vested title.
Supra ¶ 25. The interplay of these three statutes thus leaves the State
holding rights of way that are “ephemeral” with respect to the
federal government:
The State‘s inability to protect the property interests
granted to it by the federal government has, in turn,
rendered the State‘s R.S. 2477 rights of way inherently
ephemeral with respect to the United States; for a
property interest that gives its possessor no defensible
34
Cite as: 2017 UT 41Judge Voros, dissenting
rights against an adverse party is a property interest in
name only.
Supra ¶ 28. I agree that this result flows from the interplay of the
relevant state and federal statutes. But I do not agree that this result
is absurd or even uncommon.
¶ 51 On the contrary, the result section 201 mandates is and
always has been the status of the R.S. 2477 rights of way at issue
here. “In 1866, Congress passed an open-ended grant of ‘the right of
way for the construction of highways over public lands, not reserved
for public uses.’” Southern Utah Wilderness All. v. Bureau of Land
Mgmt., 425 F.3d 735, 740 (10th Cir. 2005) (quoting Act of July 26,
1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed
by Federal Land Policy Management Act of 1976 (FLPMA), Pub.L.
No. 94-579, § 706(a), 90 Stat. 2743, 2793). “This statute, commonly
called ‘R.S. 2477,’ remained in effect for 110 years, and most of the
transportation routes of the West were established under its
authority.” Id. “Originally the doctrine of sovereign immunity
barred quiet title actions against the United States.” Knapp v. United
States, 636 F.2d 279, 281 (10th Cir. 1980). “Prior to 1972, States and all
others asserting title to land claimed by the United States had only
limited means of obtaining a resolution of the title dispute—they
could attempt to induce the United States to file a quiet title action
against them, or they could petition Congress or the Executive for
discretionary relief.” Block v. North Dakota ex rel. Bd. of Univ. & Sch.
Lands, 461 U.S. 273, 280 (1983).81
¶ 52 This history makes clear that the rule of law the majority
rejects as irrational and thus absurd is not novel or hypothetical. On
the contrary, it has been tried and tested. Our nation lived under it
_____________________________________________________________
81 Not until 1972 would the Quiet Title Act waive immunity with
respect to claims for rights of access and rights of way. 28 U.S.C.
§ 2409a (2011). The Quiet Title Act permits the United States to be
named as a party defendant in a civil action under the Act “to
adjudicate a disputed title to real property in which the United States
claims an interest, other than a security interest or water rights.” Id.
§ 2409a(a). And in 1976 “Congress abandoned its prior approach to
public lands and instituted a preference for retention of the lands in
federal ownership, with an increased emphasis on conservation and
preservation.” Southern Utah Wilderness All., 425 F.3d at 741. “As part
of that statutory sea change, Congress repealed R.S. 2477.” Id. “There
could be no new R.S. 2477 rights of way after 1976.” Id.
35
GARFIELD CTY. v. UNITED STATES
Judge Voros, dissenting
for a century—long enough, I believe, for any irrationality in the rule
to emerge.
¶ 53 But the majority opinion maintains that the absurd result
sought to be avoided is not that the State lacks any judicial remedy
for quieting title to the State’s R.S. 2477 rights of way as against the
federal government; on the contrary, the majority is inclined to agree
that this result is not absurd. Supra ¶ 31. What is overwhelmingly
absurd, the majority reasons, is the fact that the State “can own such
property”—R.S. 2477 roads—“only for seven years.” Supra ¶ 32. This
result, the majority maintains, is “independent of whether the State
could have sued the federal government.” Supra ¶ 32. Again, I
disagree.
¶ 54 First, as I read it, section 201 says nothing about what
property the State can own; like all such statutes, it addresses only
when the State can bring suit. Second, for a century federal law
prohibited the State from suing the federal government to quiet title
to R.S. 2477 rights of way; now section 201 does. I cannot see how a
non-absurd result mandated by federal law has become absurd
when mandated by state law. The absurdity doctrine does not
authorize us to reject the clear meaning of an unambiguous statute
merely because that statute prescribes a result that seems to disfavor
the State.
¶ 55 What the majority has labeled an absurd result is nothing
more than a missed opportunity. The drafters of section 201 and its
remote predecessors might have chosen to draft those statutes as
statutes of limitation rather than statutes of repose. Had they known
then what we know now—that in 1972 Congress would pass the
Quiet Title Act—they may well have done so. It would have been a
prescient choice. But “[a] result is not absurd merely because
reasonable people viewing a statute with the benefit of hindsight
would conclude that the Legislature acted improvidently.” McGhee v.
Helsel, 686 N.W.2d 6, 8 (Mich. Ct. App. 2004).
¶ 56 Finally, no formulation of the absurd results doctrine of
which I am aware, in Utah or elsewhere, would allow a court to
reject a non-absurd result mandated by a statute on the ground that
at some time in the past that statute would have mandated an
absurd result. Consequently, whatever the State could or could not
have done within any seven-year repose period no longer pertains;
that period has expired, leaving the State without a judicial remedy
to quiet title to any R.S. 2477 roads against the federal government—
leaving the State, in other words, in the same predicament it and
every other state and territory was in from 1866 to 1972. Or, more
36
Cite as: 2017 UT 41Judge Voros, dissenting
accurately, almost the same predicament, for the State has a remedy
now that did not exist before 1972.
C. Section 201 and Its Predecessor Do Not Leave the State
Without a Remedy.
¶ 57 The majority opinion reasons that adhering to the plain
language of section 201 would be absurd in part because doing so
would leave the State with “no legal means to protect its property
interests from the very governmental body that granted them.”
Supra ¶ 26.
¶ 58 First, based on the analysis in the preceding section, I do not
agree that section 201 and its predecessor need to provide an
alternative remedy to avoid absurdity. Nevertheless, a party’s
alternative avenues to vindicate its rights or interests do weigh in the
absurdity analysis. In Marion Energy, Inc. v. KFJ Ranch Partnership,
2011 UT 50, ¶ 26, 267 P.3d 863, we were asked to invoke the absurd
consequences canon, not the absurdity doctrine, but our reasoning
there illuminates the question before us here. In Marion Energy, an
energy company sought to condemn private land for the purpose of
building a road to access its leased oil and gas deposits. Id. ¶ 1. It
relied on a statute that granted the right of eminent domain for the
building of roads to access “mineral deposits.” Id. (citation omitted).
The question before us was whether the statutory phrase “mineral
deposits” encompassed oil and gas deposits. Id. ¶ 13. The energy
company argued that to read the phrase narrowly would work an
absurd result, namely, allowing one private landowner to effectively
prevent the School and Institutional Trust Lands Administration
“from accessing and exploiting its oil and gas deposits for the benefit
of the Trust.” Id. ¶ 27 (citation omitted).
¶ 59 We held that the statutory phrase “mineral deposits” did
not encompass oil and gas deposits. Id. ¶ 31. We reasoned that while
a narrow interpretation of the statutory phrase would deprive the
energy company of one means of accessing its leased oil and gas
deposits—condemnation—the company had other available means
of accessing and exploiting them. Id. ¶ 28. For example, we noted
that the energy company “may have a statutory right to enter”
portions of the private property so long as it complied with all
statutory requirements. Id. ¶ 29. Other alternatives we noted were
“securing the written consent or waiver” of the property owner and
posting a bond. Id. (citation omitted). Of course, none of these
alternatives was the equivalent of condemnation; none offered
equivalent control and, perhaps more crucially, none guaranteed
access—indeed, at least one of the alternatives we listed would have
required the energy company to appeal to the absolute discretion of
37
GARFIELD CTY. v. UNITED STATES
Judge Voros, dissenting
the landowner. We nevertheless concluded, “Because [the company]
has alternative avenues of access to its leased mineral rights, we do
not believe that it would be absurd to interpret . . . the phrase
‘mineral deposits’ as not encompassing oil and gas.” Id. ¶ 30.
¶ 60 Similarly here, reading section 201 and its predecessor
according to their plain meaning may well leave the State with no
direct judicial means to quiet title, but the State does have an
alternative administrative means under the Federal Land Policy and
Management Act to establish or renew its rights of way. Before the
passage of FLPMA in 1976, “Congress had enacted a tangled array of
laws granting rights-of-way across federal lands. In an effort to
untangle these laws and establish a statutory scheme for the
management of forest lands, Congress passed the Federal Land
Policy and Management Act.” United States v. Jenks, 22 F.3d 1513,
1515–16 (10th Cir. 1994) (citation omitted). “Title V of FLPMA
repealed over thirty statutes granting rights-of-way across federal
lands and vested the Secretaries of Agriculture and Interior with
authority ‘to grant, issue, or renew rights of way over [Forest Service
and public lands] for . . . roads, trails [and] highways’ . . . subject to
reasonable regulation.” Id. (alterations and first omission in original)
(citations omitted).
¶ 61 Subchapter V of FLPMA authorizes the federal government
to grant, issue, or renew rights of way over public lands for
reservoirs, pipelines, roads, trails, highways, livestock driveways,
and other systems or facilities that are in the public interest and that
require rights of way over such lands. 43 U.S.C. § 1761(a) (2010). In
designating right-of-way corridors under FLPMA, the relevant
agency must “take into consideration national and State land use
policies, environmental quality, economic efficiency, national
security, safety, and good engineering and technological practices.”
43 U.S.C. § 1763 (2013). One commentator estimates that the “BLM
has granted thousands of routes under this formal process.” Tova
Wolking, From Blazing Trails to Building Highways: SUWA v. BLM &
Ancient Easements over Federal Public Lands, 34 ECOLOGY L.Q. 1067,
1101 (2007).
¶ 62 And of course, if a claimant “disagrees with the agency’s
decision, it may appeal or seek judicial review.” United States v.
Garfield County, 122 F. Supp. 2d 1201, 1244 (D. Utah 2000). “The court
may then review the agency’s initial determination in accordance
with the provisions of the Administrative Procedure Act.” Id. See,
e.g., Southern Utah Wilderness All., 425 F.3d at 747, (stating that the
initial determination of whether activity falls within an established
right-of-way must be made by the agency and not the court).
38
Cite as: 2017 UT 41Judge Voros, dissenting
¶ 63 This administrative approach is not so overwhelmingly
absurd that no rational legislator could prefer it to litigating
hundreds of historic R.S. 2477 claims that depend on memories of
events that occurred half a century or more earlier. See, e.g., San Juan
County v. United States, No. 2:04-CV-0552BSJ, 2011 WL 2144762, at
*23 (D. Utah May 27, 2011) (stating that a witness testified “that he
first traveled through Salt Creek Canyon in the spring of 1943,
working with his father as a cowboy . . . for $25 a month” and
another testified “that he began herding cattle . . . in Salt Creek
Canyon on horseback beginning in 1956”), aff’d, 754 F.3d 787 (10th
Cir. 2014). A statutory approach that would bar the State from
litigating titles to each of the claimed rights of way and instead
would require the State to pursue uncertain administrative remedies
or simply leave some or all of the title disputes unresolved may
strike some judges as unwise or incongruous. But “[i]f we are to
maintain respect for the legislature’s policymaking role, and avoid
the temptation to substitute our preferences for its decisions, we
must not override the statutory text with our sense of good policy in
a case in which we deem the statute’s formulation merely unwise or
incongruous.” Cox v. Laycock, 2015 UT 20, ¶ 72, 345 P.3d 689 (Lee, J.,
concurring in part).
¶ 64 In sum, as in Marion Energy, the availability of an alternative
avenue for the State to enjoy its claimed rights of way over federal
land shows that applying section 201 and its predecessor according
to their plain meaning does not work an absurd result here.82
D. The 2015 Amendments Do Not Apply.
¶ 65 The State contends that two 2015 amendments to Title 78B
“compel the conclusion that the statute is one of limitations, not
repose.”83
_____________________________________________________________
82 Like the fact that federal sovereign immunity barred Utah’s
title claims against the United States from the Mexican Cession until
the passage of the Quiet Title Act, the availability of a federal
administrative remedy distinguishes these claims against the federal
government from all other claims to which section 201 might
hypothetically apply.
83 Because the majority opinion reforms section 201 as a statute of
limitations, it does not need to consider the State’s alternative
argument for reading that section as a statute of limitations. But
because I read section 201 as a statute of repose, I must explain why
the State’s alternative argument fails.
39
GARFIELD CTY. v. UNITED STATES
Judge Voros, dissenting
¶ 66 House Bill 401 created a new section 78B-2-118. The new
section addresses actions against only one party, the federal
government. It provides that suits against the federal government
under the Quiet Title Act never expire:
Actions against the federal government regarding real
property and that are subject to the federal Quiet Title
Act, 28 U.S.C. Sec. 2409a, do not expire under this
chapter.
UTAH CODE § 78B-2-118 (2015). The legislation specifies, “This bill
has retrospective operation to October 25, 1972.” 2015 Utah Laws
324.
¶ 67 House Bill 1001 renumbered the existing section 201 as
subsection 201(1) and added a new subsection (2). The new
subsection (2) describes the new subsection (1) (the old section 201)
as a “statute of limitations”:
The statute of limitations in this section runs from the
date on which the state or those from whom it claims
received actual notice of the facts giving rise to the
action.
UTAH CODE § 78B-2-201(2). The legislation specified, “This bill has
retrospective operation to March 12, 1953.” 2015 Utah Laws 1st Spec.
Sess. 2806.
¶ 68 SUWA sees “three fatal flaws” in the State’s argument based
on the 2015 amendments. First, SUWA argues, application of these
amendments would impair existing rights by reviving time-barred
claims. Second, it argues, the Supremacy Clause of the United States
Constitution prohibits state laws that discriminate against the United
States. And third, SUWA argues, “the Utah Legislature is
constitutionally prohibited from ‘attempt[ing] to determine the
outcome of a particular case by passage of a law intended to
accomplish such a purpose.’” (Quoting Foil v. Ballinger, 601 P.2d 144,
151 (Utah 1979)).
¶ 69 The timing and text of the bills reveal that the amendments
were aimed at pending R.S. 2477 litigation. This conclusion is
reinforced by the floor debate on House Bill 1001. 84 The sponsor of
_____________________________________________________________
84 In contrast to House Bill 1001, House Bill 401 passed both
houses of the Legislature without floor debate. See Utah House Floor
Debates, H.B. 401, 61st Leg., 2015 Gen. Sess. (Mar. 5, 2015),
http://utahlegislature.granicus.com/MediaPlayer.
(Continued)
40
Cite as: 2017 UT 41Judge Voros, dissenting
House Bill 1001 cited the certification question now pending before
this court, stating that three federal judges “certified this to come to
the . . . Supreme Court of the State of Utah and ask for clarification
on this law.” The sponsor further stated, “If the assertion is correct
by SUWA then these cases would all be barred.” The amendment,
the sponsor explained, “only affects one particular action.”85 And
although a senator during floor debate questioned whether it was
wise to “have the legislature jump into a current court case,” no one
questioned the premise of his question.86 Indeed, in its briefing the
State acknowledges that “section 78B-2-201 continues to apply to
claims by the State with respect to a right or interest in real property
in all other contexts except the one presented in these cases.”
¶ 70 These amendments do not alter my analysis of the character
of section 201 and its predecessor, because applying the 2015
amendments to the present litigation would impair vested rights
while impermissibly allowing the Legislature to determine the
outcome of a particular case.
¶ 71 “A provision of the Utah Code is not retroactive, unless the
provision is expressly declared to be retroactive.” UTAH CODE § 68-3-
3 (2010). Even then, other limits may apply. One such limit precludes
retroactive amendments that would impair vested rights.
¶ 72 “We have often stated that retroactive application is
permissible if the amended version of the statute ‘[does] not enlarge,
eliminate, or destroy vested or contractual rights.’” Harvey v. Cedar
Hills City, 2010 UT 12, ¶ 14, 227 P.3d 256 (alteration in original)
(quoting Dep't of Soc. Servs. v. Higgs, 656 P.2d 998, 1000 (Utah 1982)).
A statute-of-limitations or statute-of-repose defense vests when the
php?clip_id=18757&meta_id=548111 [https://perma.cc/5K7E-
VX4H]; Utah Senate Floor Debates, H.B. 401, 61st Leg., 2015 Gen.
Sess. (Mar. 12, 2015), http://utahlegislature.
granicus.com/MediaPlayer.php?clip_id=18898&meta_id=552758
[https://perma.cc/H6Z2-98F5].
85 Utah House Floor Debates, H.B. 1001, 61st Leg., 2015 1st Spec.
Sess. (Aug. 19, 2015) (statements of Rep. Michael E. Noel),
http://utahlegislature.granicus.com/MediaPlayer.php?clip_id=
19095&meta_id=560947 [https://perma.cc/SFY8-M6GR].
86 Utah Senate Floor Debates, H.B. 1001, 61st Leg., 2015 1st Spec.
Sess. (Aug. 19, 2015) (statements of Sen. Jim Dabakis),
http://utahlegislature.granicus.com/MediaPlayer.php?clip_id=
19094&meta_id=560932 [https://perma.cc/P6WC-HPTP]
41
GARFIELD CTY. v. UNITED STATES
Judge Voros, dissenting
statutory period expires. “Since 1900, this court has consistently
maintained that the defense of an expired statute of limitations is a
vested right.” Roark v. Crabtree, 893 P.2d 1058, 1062 (Utah 1995).
Thus, “once a party acquire[s] a defense based upon an expired
statute of limitations, that defense [can] not be impaired or affected
by subsequent legislation extending the limitation period.” Id. See
also Stein v. Regions Morgan Keegan Select High Income Fund, Inc., 821
F.3d 780, 794 (6th Cir. 2016) (stating that “statutes of repose vest a
substantive right in defendants to be free of liability” (citing CTS
Corp. v. Waldburger, 134 S. Ct. 2175, 2183 (2014))). The federal
government acquired its statute-of-repose defense, if at all, well
before 2015. Accordingly, the 2015 amendments cannot be read to
impair or affect that defense.87
¶ 73 Granting the 2015 amendments retroactive application in
this context would also allow the Legislature to choose winners and
losers in particular pending cases. Of course, the Legislature may by
statutory amendment overrule our interpretation of statutes. See Foil,
601 P.2d at 150 (finding it “indisputable that the Legislature intended
to overrule” an earlier decision of this court). However, in Foil we
recognized “the potential mischief, indeed, the grave constitutional
problems, that could arise if the Legislature were to attempt to
determine the outcome of a particular case by passage of a law
intended to accomplish such a purpose.” Id. at 151. See also Carter v.
Lehi City, 2012 UT 2, ¶¶ 36–43, 269 P.3d 141 (discussing the
constitutional prohibition against special legislation). The legislative
role does not include picking “winners and losers in particular
pending cases.” See Bank Markazi v. Peterson, 136 S.Ct. 1310, 1338
(2016) (Roberts, C.J., dissenting).88
¶ 74 For these reasons, the 2015 amendments do not alter my
conclusion that section 201 and its predecessor are statutes of repose.
_____________________________________________________________
87 Any claim that the amendments merely clarified the intent of
the Territorial Legislature of 1872 lacks support in both fact and law.
See, e.g., State v. Perez, 2015 UT 13, ¶ 9, 345 P.3d 1150 (stating that our
recent cases expressly repudiate an exception to the rule against
retroactivity for clarifying amendments).
88 Indeed, if the State’s argument prevailed, the Legislature could
control every stage of the pending litigation against the federal
government by periodically amending any relevant state statute or
rule and declaring the amendment to have retroactive effect.
42
Cite as: 2017 UT 41Judge Voros, dissenting
II. The Federal Government Is a Person For Purposes of
Section 201
¶ 75 The State argues that the federal government may not
invoke section 201, because the federal government does not qualify
as a “person” under that section. The majority concludes that this
question can be fairly said to be included within the scope of the
certified question. Supra ¶ 12 n.25. “It has been the consistent
practice of this court to decline to address issues that are not
presented or fairly included in the question or questions that we
have accepted for review.” Miller v. United States, 2004 UT 96, ¶ 27,
104 P.3d 1202 (Durrant, J., concurring in part and dissenting in part).
¶ 76 It is not obvious to me that the question of whether section
201 is a statute of repose or a statute of limitations fairly includes the
question of whether the federal government qualifies as a “person”
for purposes of section 201. But assuming that the question of the
personhood of the federal government is before us, it can in my
judgment be readily resolved by reading the statutory text. “Courts
are bound by the plain language of the statute.” Aris Vision Inst., Inc.
v. Wasatch Prop. Mgmt., Inc., 2006 UT 45, ¶ 17, 143 P.3d 278, reh’g
denied. “Accordingly, it is only ‘when statutory language is
ambiguous—in that its terms remain susceptible to two or more
reasonable interpretations after we have conducted a plain language
analysis’—that we ‘resort to other modes of statutory construction,’
such as legislative history.” Penunuri v. Sundance Partners, Ltd., 2013
UT 22, ¶ 16, 301 P.3d 984 (citation omitted). In sum, “our analysis
begins with the text of the statute and, if that text is unambiguous,
ends there.” State v. Rasabout, 2013 UT App 71, ¶ 28, 299 P.3d 625,
aff’d, 2015 UT 72, 356 P.3d 1258.
¶ 77 The relevant statute here is Utah Code section 68-3-12.5. I
agree with the majority that, given that the events in this case took
place before 2010, the pre-2010 versions of the definitions statute
appear to control, and that they all define “person” to include
“bodies politic.” See Revised Statutes of 1898 § 2498(5); UTAH CODE
§ 68-3-12(2)(o). Supra ¶ 12 n.25.89
_____________________________________________________________
89 Though probably inapplicable here, the 2010 version of the
statute defines person to include both a “body of government” and
“any other organization or entity.” UTAH CODE § 68-3-12.5(14). The
federal government is unquestionably a “body of government.” See,
e.g., Cogger v. County of Becker, 690 N.W.2d 739, 742 (Minn. 2005)
(referring to “the federal government as the sole body of government
(Continued)
43
GARFIELD CTY. v. UNITED STATES
Judge Voros, dissenting
¶ 78 Ample authority demonstrates that the federal government
falls within the generally accepted definition of body politic at all
relevant times. See, e.g., Monell v. Dep’t of Social Servs., 436 U.S. 658,
688 n.51 (1978) (“The United States is a government, and,
consequently, a body politic and corporate.” (quoting United States v.
Maurice, 26 Fed. Cas. 1211, 1216 (C.C.D. Va. 1823) (No. 15,747))); Van
Brocklin v. Tennessee, 117 U.S. 151, 154 (1886) (same); Cotton v. United
States, 52 U.S. 229, 231 (1850) (“Although as a sovereign the United
States may not be sued, yet as a corporation or body politic they may
bring suits to enforce their contracts and protect their property, in
the State courts, or in their own tribunals administering the same
laws.”); Body Politic, BLACK’S LAW DICTIONARY 143 (1st ed. 1891)
(“[B]ody politic”: “It is often used, in a rather loose way, to designate
the state or nation or sovereign power, or the government of a
county or municipality, without distinctly connoting any express
and individual corporate charter”).
¶ 79 Because the federal government is a body politic, it falls
comfortably within the statute’s definition of person.90
***
authorized to interact with” Native Americans). The federal
government is also an entity. Indeed, in discussing public lands
within improvement districts, another Utah statute cites the federal
government as its first example of an entity: “Fee lands and property
of public entities such as the federal government . . . .” UTAH CODE § 54-8-
5(8) (emphasis added). Accordingly, under the 2010 version of
section 12.5, the United States indisputably qualifies as a person.
90 In my judgment, the term body politic unambiguously
encompasses the federal government. But even if the definitional
section could plausibly be read—as the State urges—to grant the
State greater rights under section 201 against the federal government
than against other defendants, such a reading would risk running
afoul of the Supremacy Clause. The Supremacy Clause forbids states
to discriminate against the United States. See Phillips Chem. Co. v.
Dumas Indep. Sch. Dist., 361 U.S. 376, 387 (1960). The canon of
constitutional avoidance holds that we may “reject[] one of two
plausible constructions of a statute on the ground that it would raise
grave doubts as to its constitutionality.” Utah Dep’t of Transp. v.
Carlson, 2014 UT 24, ¶ 23, 332 P.3d 900. Accordingly, even if the
State’s reading were plausible, I would reject it under this canon.
44
Cite as: 2017 UT 41Judge Voros, dissenting
¶ 80 We have been asked to read a statute. We should, in my
judgment, stop “straining to avoid its natural meaning,” see Kungys
v. United States, 485 U.S. 759, 781 (1988). All members of this court
agree that the text of section 201 unambiguously describes a statute
of repose. No member of this court disputes that the result mandated
by that statute of repose was the prevailing rule of law throughout
the United States for over a century. I am thus at a loss to understand
how we can label that result overwhelmingly absurd, especially
when the State now has alternative remedies available to it under
federal law.
¶ 81 I thus respectfully dissent.
45