Reply Brief — Duchesne County v. Ute Indian Tribe of the Uintah & Ouray Reservation

(3) | mn Court, U.S.

F It kD

NOV 21 1997

No. 97-570

RK

In THE

Supreme Court of the United States

OCTOBER TERM, 1997

DUCHESNE COUNTY, a political

subdivision of the State of Utah,

UINTAH COUNTY, a political

subdivision of the State of Utah,

i Petitioners,

UTE INDIAN TRIBE, of the

Uintah and Ouray Reservation, Utah,

a federally recognized tribe of Indians,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

REPLY BRIEF OF PETITIONERS

HERBERT W M. GILLESPIE Tom D. ToBIN

Duchesne County Attorney TosBIn LAW OFFICEs, P.C.

500 East 100 South P.O. Box 730

P.O. Box 206 422 Main Street

Duchesne, UT 84021 Winner, South Dakota 57580

(435) 738-2435 (605) 842-2500

JOANN B. STRINGHAM Counsel of Record

Uintah County Attorney

152 East 100 North

Vernal, UT 84078

(435) 781-5436

AT SE. ATER

Witson - Eras Painting Co., Inc. - 769-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

INTRODUCTION

I. THE UNITED STATES DISTRICT COURT

IN UTAH HAS CONTINUED TO ENJOIN

PETITIONERS FROM IMPLEMENTING THE

HAGEN MANDATE

. THE UNITED STATES SHOULD BE IN-

VITED TO EXPRESS ITS VIEWS TO THIS

COURT

. “THE DECISION OF THIS COURT IN

HAGEN HAS BEEN MISCONSTRUED TO

PRESERVE HISTORIC RESERVATION

BOUNDARIES CONTRARY TO SUBMIS-

SIONS IN HAGEN AND CONTRARY TO

RELATED PRECEDENT OF THIS COURT”..

A. The Counties Do Not “Admit” That This

Case Is Not Certworthy “aed

B. The Counties Do Not “Misapprehend”

This Court’s Reservation Diminishment/

Disestablishment Jurisprudence

. The Ute Tribe Does Not Respond To The

Graphic References To Disestablishment

Submitted In Hagen That Are In Express

Conflict With The View Of The Panel In The

Tenth Circuit ...

. The Claim Of The Ute Tribe That Additional

Statutes Must Be Construed Is Without

Merit ca

. THE EIGHTH CIRCUIT COURT OF AP-

PEALS REJECTED THE VIEW OF HAGEN

ADOPTED BY THE TENTH CIRCUIT WITH

RESPECT TO THE YANKTON RESERVA-

TION

ii

TABLE OF CONTENTS—Continued

Page

III sennsicneiineesctitintnenmnitanindeciociibiadaiai 10

APPENDIX:

Excerpts from Transcript of Court Proceedings

(Status and Scheduling Conference), Ute Indian

Tribe v. Utah, (No. 75-CV-408-J) —............-... la

iii

TABLE OF AUTHORITIES

CASES: Page

DeCoteau v. District County Court, 420 U.S. 425

eee setae BEET ras St ln A me 8, 9, 10

Hagen v. Utah, 510 U.S. 399 (1994) _..... passim

Rosebud Sioux Tribe v. Kneip, 480 U.S. 534

ge | EET Fen Rea Fs aaa MODS. 5 eA el 8,9

United States v. Pelican, 232 U.S. 442 (1914)... 8

Yankton Sioux Tribe v. Southern Missouri Waste

Management, 99 F.3d 1489 (8th Cir. 1996), cert.

granted sub nom. South Dakota v. Yankton

Sioux Tribe, 117 S.Ct. 2430 (1997) (No. 96-

SEES ESSE SE GA toe eae eee 4, 8, 9, 10

OTHER AUTHORITIES:

Federal Rules of Appellate Procedure 21... 2

Brief for the United States as Amicus Curiae,

Hagen v. Utah, 510 U.S. 399 (1994) (No. 92-

6281) 4

Transcript of Court Proceedings, Ute Indian Tribe

v. Utah, (Oct. 21, 1997) (No. 75-CV-408-J) 2

Transcript of Court Proceedings, Ute Indian Tribe

v. Utah, (Sept. 8, 1997) (No. 75-CV-408-J) ..._. 2

Brief of Ute Indian Tribe in Opposition to Grant-

ing a Writ of Certiorari, Hagen v. Utah, 510

U.S. 399 (1994) (No. 92-6281) di 7

Motion of Ute Indian Tribe to Intervene as a Mat-

ter of Right, Hagen v. Utah, 510 U.S. 399 (1994)

(No. 92-6281) 7

Brief of Ute Indian Tribe as Amicus Curiae i in

Support of Petitioner, Hagen v. Utah, 510 U.S.

899 (1994) (No. 92-6281)... 7

Brief for the United States as Amicus Curiae in

Support of Respondents, South Dakota v. Yank-

ton Sioux Tribe, (September 24, 1977) (No. 96-

gn RRS RL LEE aR A Pe 4

Brief of Duchesne County, Utah and Uintah

County, Utah, Amici Curiae in Support of Peti-

tioner State of South Dakota, South Dakota v.

Yankton Sioux Tribe, (August 7, 1997) (No.

96-1581) | CE SEER” SOS 8

iv

TABLE OF AUTHORITIES—Continued

Page

Brief of Charles Mix County, South Dakota, as

Amicus Curiae in Support of Petitioner State of

South Dakota, South Dakota v. Yankton Sioux

Tribe, (May 7, 1997) (No. 96-1581) 4

Brief for the States of California and Colorado

as Amici Curiae, in Support of Petitioners,

Duchesne County and Uintah County, Utah v.

Ute Indian Tribe (No. 97-570) -.......................-- 6

REPLY BRIEF OF PETITIONERS

ARGUMENT

Introduction

In the Brief in Opposition, Respondent Ute Tribe

clearly overstates its case in several respects, is simply

mistaken in others and fails to address additional argu-

ments of substantial importance. In reply, Petitioner

Counties will first address the role of the United States in

this litigation and then briefly address each of the signifi-

cant points raised in opposition. Initially, however, we

summarily set forth the most recent proceedings in the

United States District Court in Utah, where the Counties

continue to be enjoined from implementing the mandate

in Hagen v. Utah, 510 U.S. 399 (1994).

I. THE UNITED STATES DISTRICT COURT IN

UTAH HAS CONTINUED TO ENJOIN PETI-

TIONERS FROM IMPLEMENTING THE HAGEN

MANDATE.

The current proceedings in federal district court in

Utah are more than indirectly involved in this case. Peti-

tioners have previously recounted the manner in which

the mandate of this Court in Hagen has been held in

abeyance month after month and year after year. Pet. at

1-2, 5-9. The United States District Court has continued

to enjoin the Counties from implementing the Hagen

mandate, even with respect to the homestead and townsite

lands resolved by the panel’s decision. Not surprisingly,

the Ute Tribe supports the position of the district court

in this respect. The district court’s decision to continue

the injunction in effect was issued in spite of the fact that

the mandate of the panel’s decision has now issued and

in spite of the fact that a cross petition was not filed by

the Ute Tribe in this Court.

Most recently, on October 15, 1997, the counties filed

a “Motion to Remove Injunction Against All Homesteaded

Land” in the district court. At the next previously sched-

uled status and scheduling conference, the issue of the

2

pending motion was raised by the Counties and immedi-

ately denied, without argument, in the following fashion:

[THE COUNTIES:] As you know the county

has filed its request that the injunction for the re-

maining Homestead lands be lifted.

THE COURT: I won't deal with that until such

time that the Supreme Court speaks on the petition

that is currently pending.

Tr. of Court Proceedings at 9, Ute Indian Tribe v. Utah

(Oct. 21, 1997) (No. 75-CV-408-J).

Although the district court had acknowledged receipt

of the mandate from the Tenth Circuit in a hearing on a

similar motion involving the City of Roosevelt the pre-

vious month, no further explanation on this point was

offered. In the Roosevelt hearing, the district court un-

equivocally stated:

THE COURT: Well, the mandate is here, and

since the amendment by the Tenth Circuit in Hagen

has been entered, and their mandate to this Court,

it seems to me that I have no real alternative but to

grant the motion of Roosevelt City. .. .

Tr. of Court Proceedings at 8, Ute Indian Tribe v. Utah,

(Sept. 8, 1997) (No. 75-CV-408-J) (emphasis added).

The court was mistaken if it thought that a petition for

certiorari, without more, stayed the mandate and pro-

vided the court with an “alternative.” Id.

The Counties have appended excerpts from the tran-

script of the status report and scheduling conference in

which their motion was denied. Reply App. at 1a-Sa.

The excerpts make clear that in the absence of some

definitive action by this Court, the mandate of this Court

in Hagen will not be implemented at any time in the fore-

seeable future." Because of the “jurisdictional chaos”

format of “Indian country” adopted by the district court

in the first instance and later accepted by the panel in

1 The Counties understand Fed. R. App. P. 21 provides a potential

remedy. However, under the circumstances in this case it is not an

acceptable alternative.

3

the Tenth Circuit, the federally funded and tribally as-

sisted tract by tract title opinions and corresponding map-

ping processes, involving “28” different land categories

and hundreds of thousands of acres, started over three

years ago, are still not complete. Indeed, even a cursory

review of the excerpts from this hearing leaves one with

the distinct impression that the “monumental job” might

never be completed. Reply App. at 3a.

If. THE UNITED STATES SHOULD BE INVITED TO

EXPRESS ITS VIEWS TO THIS COURT.

In opposition, the Ute Tribe mentions that, from the

beginning, it has been “supported by the United States”

in its post-Hagen assertion that this Court did not intend

that Hagen affect historic reservation boundaries in the

traditional sense. Resp’ts Br. in Opp’n to the Pet. for a

Writ of Cert. at 12. Duchesne County and Uintah

County, Utah v. Ute Indian Tribe (No. 97-570). Never-

theless, to date, the United States is conspicuously absent

in the proceedings before this Court. For some unstated

reason, for the first time in two decades the United States

has decided not to submit an amicus curiae brief in sup-

port of the Ute Indian Tribe. The Counties respectfully

submit that a few comments on this “litigation” decision

are appropriate.

In the courts below, the United States unequivocally

Supported the post-Hagen argument of the Ute Indian

Tribe.’ In this respect, the arguments of the United

States were contrary to two decades of submissions by

the United States in cases in this Court, including Hagen.

This Court should invite the United States to express its

views and explain the reasons that prompted this radical

2? The arguments differed only in two respects. First, not even

the United States could support the collateral estoppel claim of the

Ute Tribe (which is never mentioned in the Brief in Opposition ).

The Ute Tribe argued that the State and the Counties could not rely

on Hagen because of collateral estoppel—that the decision of this

Court in Hagen was meaningless in all significant respects. Pet.

App. at 17a. Secondly, the United States agreed with the State and

Counties that the Uncompahgre reservation no longer exists.

4

shift in legal analysis. For example, the United States

could then explain how it could, in this Court, agree with

the meaning of the precedent and the scope of the issue

presented in Hagen, and yet tell the courts below (in sup-

port of the Ute Indian Tribe) that historic reservation

boundary disestablishment was not an issue in Hagen.

The absence of the United States here is even more

perplexing in light of the most recent litigation position

adopted by the United States. In a case pending in this

Court, the United States has told this Court that it has

a “strong interest in protecting the integrity of reservation

boundaries” in general. Br. for the United States Supp’g

Resp’ts, South Dakota v. Yankton Sioux Tribe, at 1 (No.

96-1581). In furtherance of that interest, the United

States should not simply remain silent here. The United

States, at the very least, should explain how, in this case,

it could tell this Court one thing and then tell the court

below a different story.

In the past, this Court has often requested the United

States to express its views when similar questions of fed-

eral Indian law were presented. In this instance, Peti-

tioners would respectfully submit that such a request

would be especially appropriate. The United States agreed

that certiorari should be granted in Hagen to resolve the

conflict between the state and federal decisions. Br. of

the United States as Amicus Curiae at 15, Hagen (No.

92-6281). And the United States participated from the

beginning in the Ute litigation and in Hagen as amicus

curiae. In fact, the arguments of the United States are

noted and rejected in the text of the Hagen opinion.

Hagen, 510 U.S. at 411-412 In the Tenth Circuit, the

United States was instrumental in convincing the courts

to adopt the post-Hagen argument of the Ute Tribe that

8 All of the briefs of the United States in the diminishment/

disestablishment cases prior to Hagen were reproduced in an

appendix submitted by Uintah County in Hagen. In Yankton,

Charles Mix County, amicus curiae, has reproduced all of the same

briefs, including the brief for the United States in Hagen. Br.

of Charles Mix County, Amicus Curiae, in Supp. of Pet’r. South

Dakota v. Yankton Sioux Tribe (May 7, 1997) (No. 96-1581).

ee ee

Ill. “THE DECISION OF THIS COURT IN HAGEN HAS

BEEN MISCONSTRUED TO PRESERVE HISTORIC

RESERVATION BOUNDARIES CONTRARY TO

SUBMISSIONS IN HAGEN AND CONTRARY TO

RELATED PRECEDENT OF THIS COURT.”

A. The Counties Do Not “Admit” That This Case Is

Not Certworthy.

The Counties submitted the reason for granting the

writ in this case quoted above. As a preliminary mat-

ter, the Counties first address the assertion in Respond-

ents’ Brief in Opposition that our Petition concedes that

this case is not worthy of the attention of this Court.

According to the Ute Tribe:

[T]he petitioners ultimately admit that they do not

meet this Court’s criteria for being granted a petition

for writ of certiorari. See Pet. Br. at 30. Thus, in

desperation, they appeal to this Court for “some type

of appropriate relief.”

Resp’ts Br. in Opp’n to the Pet. for Writ of Cert. at 17.

Duchesne County and Uintah County, Utah v. Ute Indian

Tribe (No. 97-570).

The Ute Tribe cites only the Petition at 30 in support

of this assertion. The Petition at 30 sets forth the “CON-

CLUSION” of the Petition. The consideration reflected

in the “CONCLUSION” is simply a recognition of the

extraordinary demands on this Court’s discretionary cer-

tiorari jurisdiction. In this instance, the Ute Tribe is

B. The Counties Do Not “Misapprehend” This Court’s

Reservation Diminishment/Disestablishment Juris-

prudence.

In response to the specific discussion in the Petition

directed to the Tenth Circuit’s misreading of Hagen, the

Brief in Opposition begins with a general argument that:

6

[P]etitioners misapprehend this Court’s previous

reservation-diminishment decisions, generally, and

this Court’s decision in Hagen, specifically.

Id.

For two decades, Duchesne County, Utah and Uintah

County, Utah have participated as parties in all litigation

related to this disestablishment issue. Even a cursory

review of any of the briefs submitted in this litigation or

in Hagen, including those of the Counties, demonstrates

the frailty of this claim. While the Counties might not

have all the answers, we at least know the question and

understand the issue we briefed over a twenty-year period

of time.

In the first instance, there is no disagreement in any

of these briefs regarding the scope of any of this Court’s

reservation disestablishment/diminishment decisions or the

scope of Hagen. Again, the Ute Tribe is simply mistaken.

Further, the Brief for the Amici States unequivocally sup-

ports the petition in both respects—the scope of this

Court’s precedent and the meaning of this Court’s decision

in Hagen. Br. for the States of California and Colorado

as Amici Curiae, in Supp. of Pet’rs at 3-12, Duchesne

County and Uintah County, Utah v. Ute Indian Tribe

(No. 97-570). Importantly, a number of amici States par-

ticipated in Hagen and in all related litigation of this

Court.

C. The Ute Tribe Does Not Respond To The Graphic

References To Disestablishment Submitted In

Hagen That Are In Express Conflict With The

View Of The Panel In The Tenth Circuit.

The Counties went to great length in the Petition to

document the extent to which the submissions to this

Court in Hagen are in express conflict with the views of

the Tenth Circuit regarding the holding of Hagen. The

Ute Tribe responds to none of this—even though the most

graphic references to a disestablished reservation are in

the briefs submitted by the Ute Tribe in Hagen.

LEO RAS Mee i a, ar

7

For example, as we noted in our Petition, the Ute Tribe

told this Court when opposing certiorari in Hagen in

November, 1992:

[T]he issue of whether Congress intended to dis-

establish the Uintah Valley Reservation, Utah.

Br. of Ute Indian Tribe in Opp’n to Cert. at 1, Hagen

(No. 92-6281) (emphasis added). See Pet. at 24.

On the merits, the Ute Tribe next filed a motion to inter-

vene as a matter of right in this Court in May, 1993.

Again, the Ute Tribe repeatedly stressed the scope of the

issue presented. Mot. of Ute Indian Tribe to Intervene

as a Matter of Right at 2, 4-5, 7-8, 8-9, 9 n.5, 10 n.7,

Hagen (No. 92-6281). See Pet. at 25-26. And in June,

1993, the Ute Tribe then submitted its brief amicus curiae

in this Court. For the third time, the Ute Tribe described

to this Court the issues in exactly the same manner:

While a decision that the Reservation has been dis-

established would subject Indians to the full panoply

of state law for conduct on non-trust lands... .

Therefore, any discussions between McLaughlin and

the Utes were irrelevant except to the extent, if any,

| that they influenced Congress to abandon any intent

| ‘it may have had to disestablish the Reservation.

Br. of Ute Indian Tribe at 10 n.11, 25 n.25, Hagen

(No. 92-6281) (emphasis added). See Pet. at 26-27.

All other arguments submitted in Hagen reflect this

same understanding. Pet. at 22-29. The claim in opposi-

tion that historic reservation boundaries were not at issue

in Hagen is clearly incorrect.

D. The Claim Of The Ute Tribe That Additional Stat-

utes Must Be Construed Is Without Merit.

To the extent that the briefs submitted to this Court

in Hagen and the decision in Hagen, in proper context,

establish that historic reservation boundaries were at issue

in Hagen, the balance of Respondent Ute Tribes’ opposi-

tion regarding the “three disputed categories of fee lands”

(lands, by the way, that are not owned or populated by

8

members of the Ute Tribe) and the purported need for

the construction of the additional statutes related to these

fee lands is simply more smoke and mirrors. In the area

at issue in DeCoteau v. District County Court, 420 U.S.

425 (1975), or in Rosebud Sioux Tribe v. Kneip, 430

U.S. 584 (1977), or in any similarly affected area, when

historic reservation boundaries were disestablished, the

area ceased to be “Indian country” except for the “trust”

lands—and this is true irrespective of how the other lands

in the area eventually attained fee status. The applicable

decisions in this Court support this position unequivocally.

See also United States v. Pelican, 232 U.S. 442 (1913).

The Ute Tribe and the Tenth Circuit recognized this prin-

ciple prior to Hagen. Nothing in Hagen was intended to

alter that fundamental understanding.

IV. THE EIGHTH CIRCUIT COURT OF APPEALS

SQUARELY REJECTED THE VIEW OF HAGEN

ADOPTED BY THE TENTH CIRCUIT WITH

RESPECT TO THE YANKTON RESERVATION.

In the petition, the Counties pointed out the far-reaching

consequences that the misreading of Hagen promises in

other circuits (the United States raised the same argument

in the Eighth Circuit). Pet. at 2, 19. As we noted, for

that reason the Counties also filed an amici curiae brief

in Yankton Sioux Tribe v. Southern Missouri Waste Dist.,

99 F.3d 1439 (8th Cir. 1996), cert. granted sub nom.

South Dakota v. Yankton Sioux Tribe, 117 S.Ct. 2430

(1997) (No. 96-1581). That brief recounts, in some

detail, the legal arguments that demonstrate the extent to

which Hagen has been seriously misconstrued by the panel

in the Tenth Circuit. Br. of Duchesne County, Utah and

Uintah County, Utah, Amici Curiae, in Supp. of Pet’r.,

South Dakota v. Yankton Sioux Tribe, (August 7, 1997)

(No. 96-1581).

We initially assumed, because the Eighth Circuit Court

of Appeals in Yankton generally rejected the Yankton

disestablishment argument, it was not really necessary for

that Court to deal with the post-Hagen argument the

9

United States had submitted there. In this respect, we

were mistaken. We failed to notice that the Eighth Circuit

actually set forth the primary disestablishment passage in

Hagen, along with additional language from both Rosebud

and DeCoteau, in the text of the Yankton opinion because

the Yankton Tribe and the court deemed the Yankton

documentation to be much less persuasive of disestablish-

ment in comparison.

The tribe argues that these comments are very

weak when compared to statements made by, or to

the Indians, in cases where diminishment was found.

. In Hagen, the tribe was informed:

You say that [the reservation boundary] line is

very heavy and that the reservation is nailed

down upon the border. That is very true as

applying to the past many years and up to now,

but congress has provided legislation which will

pull up the nails which hold down that line and

after next year there will be no boundary line

to this reservation.

Hagen, 510 US. at 417, 114 S.Ct. at 968 (internal

citations omitted).

Yankton Sioux Tribe, 99 F.3d at 1452.

Significantly, the Eighth Circuit then concluded:

The Indians on these three reservations [Hagen, De-

Coteau, Rosebud] were thus “clearly aware” that

their reservations would be smaller after the sale of

lands. Neither the commissioners nor the tribal mem-

bers made like comments in this case. ... [T]here

is no statement that clearly indicates that Congress

intended to change the reservation boundaries or re-

move tribal sovereignty over the opened areas. There

are also no statements by members of the tribe that

demonstrate an understanding that the reservation

boundaries would change.

Id. at 1453.

This “change the reservation boundary” discussion did

not need more clarification. The Eighth Circuit had made

10

the traditional DeCoteau “checkerboard pattern” point

earlier in the opinion, consistent with the position of the

Counties in this petition.

A checkerboard pattern of jurisdiction would have

been the result if the Yankton reservation had been

diminished by the 1894 Act. ... There factors dis-

tinguish this case from DeCoteau....

Id. at 1449 (emphasis added).

Clearly, the “change the reservation boundary” discussion

and the recognition of the traditional DeCoteau “checker-

board pattern” are both squarely inconsistent with the post-

Hagen argument the United States submitted and the mis-

reading of Hagen by the Tenth Circuit.‘

CONCLUSION

In the Petition, the Counties requested that the Petition

for a Writ of Certiorari be granted and for the Court to

fashion some type of appropriate relief. Alternatively, we

suggested that consideration of the Petition be deferred

until after this Court had an opportunity to view the issue

in light of the briefing and oral argument in South Dakota

v. Yankton Sioux Tribe, (No. 96-1581) (now scheduled

for Monday, December 8, 1997) (the Yankton Sioux

Tribe has divided oral argument with the United States).

Because the United States has elected not to express its

views to this Court regarding the panel’s construction of

Hagen, we now respectfully suggest that the United States

be invited to do so at this time.

4Of course, in all other respects we think the Eighth Circuit

reached the wrong conclusion,

HERBERT WM. GILLESPIE

Duchesne County Attorney

500 East 100 South

P.O. Box 206

Duchesne, UT 84021

(435) 738-2435

JOANN B. STRINGHAM

Uintah County Attorney

152 East 100 North

Vernal, UT 84078

(435) 781-5436

11

Respectfully submitted,

Tom D. ToBIN

TOBIN LAW OFFICES, P.C.

P.O. Box 730

422 Main Street

Winner, South Dakota 57580

(605) 842-2500

Counsel of Record

November 1997

ee ee

APPENDIX

la

APPENDIX

[Excerpts from Transcript of Proceedings

Dated October 21, 1997]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

Case 2:75-CV-00408

UTE INDIAN TRIBE,

Plaintiff,

VS.

STATE OF UTAH, et al.,

Defendant.

BEFORE THE HONORABLE BRUcE S. JENKINS

OCTOBER 21, 1997

REPORTER’S TRANSCRIPT OF PROCEEDINGS

STATUTE REPORT AND

SCHEDULING CONFERENCE

* * * *

[4] MR. THOMPSON: We have two very attractive

maps.

* * * K

MR. THOMPSON: * * * If I may, I would like to

walk the Court through what we have done to date, Your

Honor, and then advise the Court the work that remains

to be done because it is substantial.

* * * *

This is a compilation of I believe about 28 different

land categories that were withdrawn from BIA files, BLM

2a

files and county records. We started with these categories,

and all of this has been digitized and had the individual

tracks.

[5] * * * This map, Your Honor, takes the unidentified

map and tries to commingle lanc ownership. And it’s

reduced to 10 categories. * * *

* * * These are our first draft efforts. They’re far

from final and will have subsequent maps.

Based on those categories and our understanding, col-

lective understanding of the 10th Circuit decisions, we

again commingled land and identified Indian Country,

Outside Indian Country and what we call Status Under

Review, and in all honesty, Your Honor, we do not know

at this juncture.

* * * *

[6] The point where we are in the mapping effort,

Your Honor, is we’ve come along way, but we’ve got a

long way to go. We hope to have the cross hatched lands

not including the townsites done, Your Honor, the areas

that are under review within 90 days, and we would be

willing to bring those back to the Court in 90 days. We

even at that point, however, Your Honor, will not have

the townsites of Myton and Randlett and Duchesne

mapped. We simply do not have the resources or the

time.

This map also shows as a general rule where river

roads and stream locations should be, Your Honor. That

does not mean where they are. So that needs to be

corrected.

There are substantial ownership issues that have not

been identified. Those are primarily the towns of Myton

and Duchesne. There is a ’62 decision, United States vs.

Utah stipulated agreement under which the State of Utah

agreed that Ute Indian Tribe owned bits of Duchesne

and its tributaries and portions of the grid. Those beds

have been moved. Those beds have been filled in by non-

Indians, and homes and other items have been erected on

them from the [7] original townsite maps. Those townsite

3a

maps are no longer correct. All of the streets have been

changed. They have been filed in. Patents have been

issued. Extremely complicated. Potentially huge quiet

title, Your Honor.

This map does not also, Your Honor, because we have

no way at this point of overlaying, does not show minimal

ownership. A substantial portion of the blue lands that

appear on Map B are fee surface, but they overlay trust

and reserves. So there is at least a split jurisdictional—

or excuse—a division of jurisdiction over these lands de-

pending on surface or subsurface.

And finally, Your Honor, the biggest problem we have,

and I’m actually extremely proud of how far we have

gotten to this point, is that there are 70 townships covered

by this map, Your Honor. And those townships at least

for the center of the map, the blue area and where that

overlaps have to be done on a township-by-township basis

so that police officers and others may identify where they

are.

I will also point out that it now appears that we may—

the northwestern border of Map B, Your Honor, north-

west of Strawberry Acclamation area may be improperly

drawn in here. We think there is a survey problem there

from mountain top to mountain top as required.

* * * *

[8] * * * the federal government has been bearing the

very brunt of the expense of this, within 90 days sometime

after that. I believe we can have the townsites of Randlett

and Myton done. It could be six months before Duchesne

is done. I have no idea when we can have the townships

done.

* * * *

THE COURT: Its a monumental job, and it looks

like a very good beginning. * * *

* * o* *

MR. GILLESPIE: We also commend the efforts of

the BIA and the Ute Tribe and the BLM and all of those

a

4a

who worked on [9] this map. As you know the county

has filed its request that the injunction for the remaining

Homestead lands be lifted.

THE COURT: I won’t deal with that until such time

that the Supreme Court speaks on the petition that is cur-

rently pending. I don’t want to draw on them twice.

MR. GILLESPIE:—* * * and I think Duchesne

County is prepared to stipulate to the best map available

for presumptive jurisdictional terms, and then on a case-

by-case basis resolve any problems. While there’s vast

areas specifically of homesteaded lands that under the

mandate that the Court has received should be able to be

free from injunction at this point, and while the mapping

process is not complete, the undertaking is probably the

most—I mean, it’s on the most unimaginably difficult to

title search each parcel. * * *

* * * *

[10] MR. THOMPSON: * * * We have some of our

Own questions about their accuracy.

THE COURT: I was interested in seeing how you

were doing. It’s not an easy job, and it’s a monumental

job and for me an unending job.

MR. THOMPSON: Maybe for all of us, Your Honor.

* * * *

[11] I would suggest in response to what Mr. Gillespie

has laid out on a case-by-case basis, Your Honor, we’re

looking at case-by-case 1983 violations. And I think that

could take us off to another direction.

* * * *

[12} THE COURT: * * * AndI could say come back

in 10 years, but I think we’re better off to say come back

in 90 days.

MR. THOMPSON: Yes. And we may on that date

have a map with another date knowing that we will have

another map with another date.

THE COURT: And you have a whole rainbow

spectrum really of interesting questions that people in the

Sa

interim ought to be thinking some about. Your suggestion

where you have surface and subsurface rights is a very

novel kind of question dealing with jurisdiction and per-

sons. I’ve often thought it would be nice if the members

of the Supreme Court could implement their own decisions.

* *

* * * And quite frankly, I don’t intend to set anything

down for consideration, the [13] outcome of which is

dependent upon the petition. And in the event that that’s

resolved, we'll set them down with appropriate notice.

* * * It’s not an easy task, but it will be nice once

that it’s accomplished and people can feel a little more

at ease.

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