Brad H. Bearnson (#3633) Aaron K. Bergman (#13147) BEARNSON & CALDWELL, LLC 399 North Main, Suite 270 Logan, Utah 84321 Telephone: (435)752-6300 Facsimile: (435)752-6301 Email: bbearnson@bearnsonlaw.com Email: abergman@bearnsonlaw.com

Attorneysfor Plaintiff

IN THE SECOND JUDICIAL DISTRICT COURT COUNTY OF MORGAN, ST ATE OF UT AH

STEVE PENTZ as Executor of the CHARLES PENTZ EST A TE,

Plaintiff, v.

COMPLAINT

Judge: Case No.

STATE OF UTAH, a body politic; UTAH DEPARTMENT OF TRANSPORTATION, a political subdivision of the State of Utah, and DOES 1-X. Tier Designation: 2

Defendant.

COMES NOW Plaintiff, STEVE PENTZ as Executor of the CHARLES PENTZ EST A TE,

by and through his attorneys Brad H. Bearnson and Aaron K. Bergman of Bearnson & Caldwell,

LLC, and hereby complains against Defendants, the ST A TE OF UT AH and UT AH

DEPARTMENT OF TRANSPORTATION, as follows:

NATURE OF THE ACTION

This is a civil action arising out of the State's revocation of Plaintiffs use of I-84 for

trailing cattle - conduct that has been germane to the Pentz family business for decades. Plaintiff

seeks damages resulting from the State's breach of a contract between the parties, and equitable

Noel S. Hyde160500032

relief because the State has taken away Plaintiff's traditional means of trailing cattle yet ailed to

provide a convenient alternate trail or road for trailing. See Utah Code§ 72-3-112.

PARTIES

I. Plaintiff is an individual, and resides in Morgan County, State of Utah.

2. The State of Utah is a body politic.

3. The Utah Department of Transportation is a political subdivision.

4. DOES 1-X are one or more individuals or entities who are liable for the breach of

Plaintiff's contract, and/or are responsible for designation, maintaining, and building of livestock

highways within the State of Utah.

,JURISDICTION AND VENUE

5. The Court has jurisdiction pursuant to Utah Code section 78A-5-I 02.

6. Venue in this Court is proper in accordance with Utah Code section 78B-3-30 I

(actions governing real property) and Utah Code section 78B-3-304 (actions governing written

contracts).

7. The claims raised herein are not subject to the Governmental Immunity Act of Utah

Code sections 630-7-401, et. seq.;see also Utah Code§ 630-7-301 (waiving immunity and the

notice provisions for claims arising out of contractual obligations); see also Culbertson v. Board of

County Com'rs of Salt Lake County, 2008 UT App 22, 'II 20, 177 P.3d 621. ("the supreme court has

explained that neither lack of notice nor governmental immunity are valid defenses to equitable

claims"); see also Jenkins v. Swan, 675 P.2d 1145 (Utah 1983) (holding governmental immunity

and notice requirements inapplicable where party "seeks equitable relief in the form of a

declaratory judgment").

GENERAL ALLEGATIONS

8. Over the last several decades, the Charles Pentz Estate (the "Estate") on a

semi-annual basis has used I-84 to trail livestock between the Stoddard Ranch and Lost Creek

Ranch, located in Morgan County.

9. Historically, the Estate has utilized approximately eight (8) miles of I-84 and the

prior highway for this purpose. On such occasions, the Utah Highway Patrol ("UHP") in

coordination with the Utah Department of Transportation ("UDOT") has intermittently provided

traffic control and occasionally refused to provide traffic control.

JO. UHP and UDOT at times, through force and show of authority, have

inappropriately demanded that the Estate cease and desist any utilization of I-84 for livestock

trailing.

I I. At one point, the Estate believed it had reached an agreement, wherein UDOT

agreed that a trucking method in place of trailing would be utilized for the transport of livestock,

and UDOT would pay for the cost of the trucking. This arrangement continued for period of time,

until in the spring of 2011.

12. In the spring of 2011, UDOT refused to pay the trucking amount requested by the

Estate. A resolution was reached, and on May 18, 2011, UDOT and the Estate entered a Letter of

Understanding. See Letter of Understanding, attached hereto as Exhibit "A." (hereinafter the

"LOU"). The LOU provided that UDOT would reimburse the Estate in the Spring and Fall of

2011, for a total of$20,610.00 each way. Despite the LOU, UDOT did not pay.

13. By 2012, UDOT still had not paid the Estate. Due to UDOT's nonperformance, in

June of 2012 the Estate utilized I-84 (as it had for decades) to trail livestock. The UHP again

provided traffic control. See UDOT Maintenance Report, attached hereto as Exhibit "B."

However, relations between the parties continued to disintegrate.

14. In June of 2013, UDOT refused to arrange the trucking (as requested by the Estate

to avoid any cost disputes) and further refused to assist in any traffic control. Given UDOT's

failure to honor its promises, the Estate again utilized 1-84 to trail livestock.

15. On September 3, 2013, Utah affirmatively stated that it would not provide public

safety services to accommodate trailing of cattle along 1-84, accused the Estate of acting illegally,

and still did not pay the 2011 agreed upon sum for the trucking of the cattle. On November 24,

2015, UDOT and the State again accused the Estate of acting illegally, still did not pay the 2011

agreed upon sum for the trucking of cattle, and refused to provide any traffic control.

16. The Estate wishes to continue to regularly trail cattle, as it has for decades.

17. Under the Utah Transportation Code: "[i]f state highways with heavy traffic are

regularly used for the movement of livestock, the department, county legislative bodies, and

municipal legislative bodies shall construct and maintain livestock roads or trails for livestock

travel." Utah Code Ann. § 72-3-112(2).

FIRST CAUSE OF ACTION (Breach of Contract)

18. Plaintiff hereby incorporates by reference the foregoing paragraphs as though

restated, herein.

19. Plaintiff and Defendants have an enforceable contract, wherein Defendants agreed

to pay Plaintiff for the costs of trucking cattle in lieu of trailing cattle along 1-84. As a result,

Defendants would be subjected to a lower cost compared to their obligations under Utah Code

section 72-3-112, but to do so, were required to pay Plaintiff the entire cost of foregoing a

long-held operation, nigh tradition, of trailing cattle.

20. Plaintiff complied with the contract, and paid for and trucked cattle in lieu of

trailing said cattle along I-84. However, Defendants refused to pay. By refusing to provide

and/or pay for trucking, Defendants are in breach of that arrangement.

21. Subsequent to Defendants' refusal to pay, the Parties resolved their differences and

entered into the LOU, wherein Defendants agreed to pay Plaintiff $20,610 each way for the

disputed cost of trucking. Notwithstanding, Defendants still have not paid, and thus are also in

breach of the written LOU.

22. As a result of Defendants' breaches, Plaintiff has been damaged for the costs,

expenses, and liabilities in transferring cattle, the amounts of which are to be determined at trial.

SECOND CAUSE OF ACTION (Declaratory Relief)

23. Plaintiff hereby incorporates by reference the foregoing paragraphs as though

restated, herein.

24. Under the Utah Transportation Code: "[i]f state highways with heavy traffic are

regularly used for the movement of livestock, the department, county legislative bodies, and

municipal legislative bodies shall construct and maintain livestock roads or trails for livestock

travel." Utah Code Ann.§ 72-3-112(2).

25. Plaintiffs use, and the highway in question, requires Defendants to construct and

maintain a livestock road or trail for livestock travel. See Department of Commerce Advisory

Opinion (Aug. 9, 2007), attached hereto as Exhibit "C." (finding State is obligated to provide

Plaintiff with an alternative livestock road that provides adequate passage without imposing

"undue inconvenience").

26. Defendants have not provided Plaintiff with an alternate road or trail of livestock,

let alone one that is usable without imposing undue inconvenience upon the cattle operation.

27. The Court should grant Plaintiff declaratory relief, and with the same force and

effect of a judgment, declare Defendants' failure to fulfill and ongoing obligation to provide an

alternative route of travel for Plaintiff's cattle operation.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against the Defendants as follows:

A. For judgment against the Defendant for breach of contract damages in an amount to

be determined at trial;

B. For judgment against Defendants in the form of declaratory relief, declaring that

Defendants have not provided Plaintiff with the statutorily mandated relief of an alternate trailing

route, and have an ongoing obligation to provide such a route;

C. For all costs and attorney fees incurred in bringing this action;

D. For prejudgment interest and post-judgment interest; and

E. For such other and further relief as the Court deems just and appropriate in the

circumstances.

DATED this 4th day of April, 2016. BEARNSON & CALDWELL, LLC

B•M~ Aaron K. Bergman Attorneys for Plaintiff

I

I

EXHIBIT "A"

:;i.:m: of Utah

_,,,! : lt HE!Ul.t:Il! GtJ1•i:nwr

1 i!<F(i liELL · ' ',,u,1n: Gor;-n101·

DEPARTMENT OF TRANSPORTATION JOHN R. NJORD. PE E:r:ec:mfre Direi.-ro,.

CARLOS M. BRACERA::l, P.E, Dep11t,\. Dirc1.:trw

May 18. 2011

Charles Pentz Estme Steve Peniz, Executor 1885 N. 6800 E. Croydon, UT 840 18

S[jBJECT: Project S-Rl 99(53) Charles Pentz EstateiCallk 'l rud.1i;, . CID No. 71026 PlN 740U

LETTER OF UNDElbT \:'\DI''-'-•

uoo1~·s Director of l:;'inance does not reqJ1rv ;_}j n, d ;i(:!fl.'<:!1H~l1l for \York (l!t

projects with a total cosl in this price range. The !um!• . ·•IJ. :o .1 HJ ! DOT to rcimbunc Charles Pentz Estate (Cl'E) for costs associatcti '' i1!1 irutking C<H!le on f-84 to or from Morgan, Utah to Croydon, Utah in Spring & Lill 201 l 15 SZ0,610.00 cacti way. Such costs include: erecting and disrr1antling corr:1i 11·:.J.' . D>"i:'.'>vi ~ :'~n"': ·-1'.:.'.Sl.:na11u-r1 i':Jcatic-

curral rental at present and destination location, anc d ' ~·-;:;,1 d , ~\:,~dez.'. t·~, grade ru:~.J ::.1r trucking easen1ent. C'PE's goal is to dvcumcnl all i~';,;; .. 1'- ~.-";,;Li 1-\ itii agrci..::11!,..·nL

You are authorized ro proceed \Vi th - ·Ill: "._Y~. '!_" 1 !·;:..•ri .. :in \\ith till·

understanding this reimbursemenl is a on<:··tin1;; 1• __ " ·{-;,~:;~rt·:.:r:~ "'1nl1- and th.:tt the agreement to pay cattle trucking costs in Spring,\. htil 2·1J l ""lli in no ""Y effecr any trail rights. Both parties recognize a disag.n.:.:n1c(·1 1.i ~ l'.r ti"l: •:.::x:stence of a rig!n to trail cattle on the Interstate. CPE v.·JJ1 no1 usz:: Jr 1 , i.c '/ he pt:cpo:-:e of u c.~1 1Jle

drive, as has been the case in previous y~"rs. Yocn !'' herein was indication of your acceptance of thi:, J e~ agree to meet during lhe n1onth of June. :20 i 1 u.1 J ·;c·n' which is agreeable to both parties.

i!J* lf'i•: \\Ufk ;_:i}\C!L'd

Borh purli~s

cc.:: Kris Peterson, UDOrf Region One Dirc1.:1or Shauna Sisneros, UDOT Comptroller

L"'"' '.l •:::'1 p -! r.~y:;, P:'tl'.;r'.ffH \-'lan'.lg :.:r

Gary Nelson, UDOT I/A H.enee Spooner, Assistant Attorney Geni;;ru.i

c:r"~:J',"-'11, i_fD1J·f Luuslruci!1i:1 R:.:1;, "'J(/;~ P~ograrnn1ing

'jl.

Region Ont: Hcat.!qva11c1:., II.:& \.V::;;t Suutl:'>\c:ii ", '!;r.lt:i, 1• wl1 '.)i.; 11,

tt:Jcphum: 801·6'.20·!600 • flv.:;;i1n~k BOl·(1'.~P- <1 ,~, .,.,_,., .. _,.-: :1 m·ti1 :_~o"

EXHIBIT "B"

nt!JldGK11meVwjr_report.J•p7M_SfO=e4eb8835-3ab4-430C..S239·f35cf9,,,

Admlnlstrutlvo \Vork Order/#: Slart Dale:

!JrAH DEPARTMENT OF TRANSPORTATION MAINTENANCE WORK REPORT

Program: Phase;

Function: End Date:

1426 - Morgan 221933 06/22/2012 06/22/2012 Dept: 810

Activity: 7D76 -TRAFFICSBRVICESMAJNTENANCE (SPECIAL) Fuod: 2800 Accomptfsbment: 4 Approprlatlo XDB

Comments: Penlz's moved cattle on 1-84 MP 103-111 UHP # 021211299

Inv. Serrant Raul a Slartlng M" Biding WP 0084P 103.00 111.00

L!ll!!r;.

I Eirployee Name &!ployae ID Work Dale Wage Type Hours Total Cost

I SUBE, WILLIAM 121028 06122/2012 I OT ·Overtime Pay 4 $209

Emdoment;

l Fgulpment Name I Equ!prrant Class Code I Work Date I Total Hrs J Mlaage I Total OJst I I 33384 I 3320 - VARIABLE Ml!SSAGB BOARD I 0612212012 I 3 I I s 4 I I 1914431 I 1921 ·PICKUP 3/4-T RBO CAB 4X4 I 0612212012 I 4 I 66 I s 26 I

0214348

LABOR TOTAL:

210 ·TRUCK I TON CREW CAB DUMI' 0612212012 4X2

s 208.61 MATERIAL TOT AL:

3

s 0.00 EQUIPMENT TOT AL: S 47.40 OTHERCOsr: S 0.00 CONTRACT TOT AL: S 0,00 WORK ORDER TOTAL: $ 255.01

113113 10:28 AM

htlps:Jlom1.udot.ulsh.gov/am1_ul/Kamatlwjr_reporl.jsp?AA_SIO=e4eb8B35-3ab4-460c·B23~135cf9,,,

$ 16

Page 1 of I

1/1

EXHIBIT "C"

JON M. HUNTSMAN, JR. OoYemor

GARY R. HERBERT Lleu!enanl Govunar

State of Utah Department of Commerce

OFFICE OF TIIE PROPERTY R!GHrS OMBUDSMAN

Advisory Opinion

Advisory Opinion Requested by: Zane Pentz/Estate of Charles I. Pentz ("Pentz'')

Utah Department of Transportation ("UDOT'') Government Entity:

. Project: Trail Rights on I-84 from Morgan to Devil's Slide

Date of this Advisory Opinion:

Opinipn Prepared By:

August 9, 2007

Brent N. Bateman, Lead Attorney, Office of the Property Rights Ombudsman

Issues

(!) Dqes UDOT's refusal to permit Pentz to trail its livestock along the Interstate 84 right-of-way amount to an inverse condemnation of the Pentz's property rights?

(2) Is UDOT obligated to provide the Pentz with an alterative livestock roan in lieu of the I-84 corridor? ·

Summary of Advisory Opinion.

Becau5e I-84 is a public right-of-way, Pentz has no easement to trail livestock along the highway, and therefore no protectable property right Therefore, any act by UDOT to prevent Pentz :f):om trailing cattle along I-84 is not a taking, and no compensation is due to _Pentz;

UDOT is obligated to establish a livestock trail or road to allow Pentz to miil its livestock from Morgan to Devil's Slide. This trail orroad must be usable to Pentz without undue inconvenience. In establishing the livestock trail or road, UDOT has discretion to determine the means, method, and route of the trail. ·

Review

This opinion is meant to provide an early review of significant questions so that those involved in a specific land use dispute can have' an independent review of an issue. It is hoped that such a review can help tl)e parties avoid litigation, resolve differences in a fair and neutral forum, and understand the relevant law. The decision is not binding.

160 East JOO South, Box 146702.SaltLake City, UT 84114..6701• tclepho11c (801) 530-6391 • fatlimlle(BOI) 530-6338 • mn1>.cammtrce.utah.gav JITAH-LIFE &LEVAtEIT'

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The request for an advisory opinion in this matter was received from John Webster, Attorney for the Applicant, on May l, 2007. A letter with the request attached was sent by electronic mail, return receipt requested, to Cory Pope, Director of Region One, Utah Department of Transportation, and to Bruce Gamer, Utah Attorney General's office. Bofu Mr. Garner and Mr. Pope acknowledged receipt of fue request.

The parties did not appoint a neutral to write the opinion, so this office has prepared it. Prior to the preparation of this opinion, BrentN. Bateman of this office visited on several occasions and/or traded emails with Zane Peotz, Cory Pope, Bruce Gamer, John Webster, and other members of the Pentz family.

Evidence

The following documents with relevance to the issue involved in this advisory opinion were reviewed prior to its completion:

!. Letter dated August 6, 1997 to Charles Pentz & Family from Dyke M. Lefevre. 2. Letter dated June 13, 2005 to Cory Pope from John Webster, Attorney for applicant. 3. Memo dated March 8, 1976 to J.Q. Adair from Bert L. Taylor. 4. Memo dated May 10, 1976 to J.Q. Adair from Badi H. Mahmood (with attachments). 5. Letter dated July 22, 2005 to John Webster from Cory Pope. 6. Letter dated September 19, 2005 to James H. Beadles from John Webster. 7. Letter dated September 26, 2005 to John Webster from James H. Beadles. 8. Letter dated May 1, 2007 to Craig Call, Office of the Property Rights Ombudsman

from John Webster. 9. Letter dated July 16, 2007 to Brent N. Bateman, Office of the Property Rights

Ombudsman from Bruce R. Gamer. 10. Letter dated July 30, 2007 to Brent N. Bateman, Office of the Property Rights

Ombudsman from John Webster.

Assumed Facts

1. Peotz has been trailing livestock along the I-84 right of way between Morgan and Devils slide regularly, twice per year for several decades.

2. I-84 is a state highway with heavy traffic.

3. The 1-84 corridor was constructed directly upon the former U.S. Highway 30 right-of­way.

Advisory Opinion - Pentz Office of fue Property Rights Ombudsman August 9, 2007 - page 2 of 7 pages

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Analysis

UDOT Has Not Taken Pentz~ Property Rights

Where a private property right is taken by a government agency without the use of eminent domain, the action may give rise to a takiog. Farmers New Wbrld Life Ins. Ca. v. Bountiful City, 803 P.2d 1241, 1243-44 (Utah 1990). A "taking" is "any substantial interference with private property which destroys or materially lessens its value, or by which the owner's right to its use and enjoyment is in any substantial degree abridged or destroyed." Colman v. Utah State Land Board 795 P.2d 622, 626 (Utah 1990) (quoting State Road Commission v Fourth District Court 78 P.2d 502, 506 (Utah 1937)).

In order to successfully assert a takings claim, three elements must be satisfied: (1) there must be a protectable property interest, (2) that is taken or damaged, and 3) for a public use. Farmers New World Life Insurance Company v Bountiful City, 803 P.2d 1241, 1244 (Utah 1990); lntermountain Sports, Inc. v UDOT, 103 P.3d 716, 719 (Utah App. 2004). Therefore, initial inquiry in takiogs analysis is whether the item taken is a protectable property interest. Utah courts have long held 1hat easements, even implied easements such as 1hose for access, light, and air, are prot\l(ltable property interests 1hat may not be taken away or damaged without just compensation. Utah State Road Comm'n v. Miya, 526 P.2d 926, 928-29 (Utah 1974).

In Utah, trailing livestock across the property of another can give rise to a prescriptive easement.1 See UTAH CODE § 57-13b-201. However, no prescriptive easement will arise in a livestock 1Iail where the trail crosses public lands. UTAH CODE § 57-13b-201(3) ("a prescriptive easement under this chapter may only be established on private lands"). Therefore, where a historical trail right ·coincides with a public highway, no prescriptive easement to trail the livestock arises. Moreover, trailing livestock along a public right of way in Utah is considered a permissive use of the right of way. Thornley Land & Livestock Co. v. Morgan Bros. Land & Livestock Ca., 17 P.2d 826, 827 (1932) C'While a public road may be so established, the use by individual persons in common with the public generally is regarded as permissive").' In Thornley Land, Plaintiff claimed interest in an easement based upon his use of property as a livestock trail. The Utah Supreme Court found that the cattle trail was used by the public in such a manner to establish it as a public road, and therefore, no easement for a cattle trail was established. Therefore, where the livestock trail is also a public road, no easement for trailing cattle exists independent of the right of the public to use the public road.3

1 No authority can be found to indicate that a right to tr.ft cattle across a parcel of property, independent of the • existence of an express or implied easement to do so, is a protectod property interest.

2 Other jurisdictions agree that trailing livestock along a public right-of-way Is a peimissible use of that right-<>f­way, end therefore does not give rise to an easement. See, e.g., Lovvorn v. Salisbury, 701 P.2d 142 (Co Ct. App., 1985) (holding that once a road was declared open to the public, it could be used for all uses permissible to the rub lie under the laws of the state, and trailing livestock was a legally pennissible use).

Pentz argues that construction of the freeway (I-84) operated as an abandonment of the previous highway (U.S. 30). Therefore, Pentz claims it retained an easement over and across the highway/freeway for the trailing of livestock. Significant authority bas beeti cited by Pentz showing that abutting landowners have a private easement of ingress and egress to existing public highways, and when the highway is abandoned, the private casement of access

Advisory Opinion- Pentz Office of the Property Rights Ombudsman AU!!!1st9, 2007 -page a of 7 pages

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Pentz claims to have been continuously trailing cattle along the old U.S. Highway 30 from Morgan to Devil's Slide since "early Utah history." See Letter dated May J, 2007 to Craig Call, Office of the Property Rights Ombudsman from John Webster. There is no claim that Pentz has ever possessed an express easement across the highway property. In approximately 1958, new construction of I-84 between Morgan, Utah and the Devil's slide area was completed and replaced Highway 30. See March 19, 1976 Memo from J.Q. Adair. It appears therefore that the public right-of-way existed on the cattle trail at all relevant times during which Pentz trailed cattle thereon.4 In accordance with UTAH CODE § 57-13b-201(3), no prescriptive easement for a livestock trail upon the highway arises because the livestock trail coincides with the public right­of-way. Therefore, no easement exists across the property for the benefit of Pentz. According to Thornley Land, use of the right-of-way to trail livestock is permissive. Where the use of a right of way is pennissive,5 the right to use the right-of-way is a license, which may be revoked. See Lunt v Kitchens 260 P.2d 535 (Utah 1953). Accordingly, Pentz does not have a protectable property interest in trailing livestock across the public right-of-way. Because the first element of the takings analysis is not satisfied, an action preventing Pentz from trailing livestock along the I-84 public right-of-way is not a taking. 6

UDOT is Obligated To Construct A Livestock 7l'ail

UTAH CooE § 72-3-112 dictates UDOT's obligation regarding livestock trails. This statute provides:

(1) A highway authority may designate, survey, construct, protect, enter into agreements for, purchase rights-of-way for, and maintain livestock highways.

survives on the funner right of way. See Mason v. State, 656 P.2d 465, 468 (Utah 1982). However, this easement referred to in Mason does not give rise to a protectable property interest in this matter. The Mason easement provides an abutting landowner with general ingress and egress to the abandoned highway property. This easement to access the highway is distinguishable from the right being claimed here, which is the right to trail cattle along the right-of-way (which as discussed, is permissive under tho law). Moreover, the Mason easement only arises once the highway right-of-way has been abandoned. It does not appear that the underlying right of way in this matter has been abandoned, or If it has been hhandoned (such as duriog the construction ofI-84), it has been reestablished. 1-84 remains a public right-of-way. 4 Although it is not clear from the submissions of the parties whether Pentz began trailing cattle prior to or subsequent to establishment of the original right-of-way, the analysis is the same in etther situation. Proof that the land was owned by the government at any time during the prescriptive period defeats a claim for prescriptive easement Cassity v. Castagna, 347 P.2d 834 (Utah J 959). 'The permissive nature of the livestock trail accords with the fact that UDOT has been cooperative and has assisted in the Penlz's cattle drives along 1-84 in the past If the use bas been permissive, such cooperation does not indicate an acknowledgement by UDOT that Pentz has a protectable property interest In the livestock trail. 6 Because the elements establishing a taking are not satisfied, there is no need to examine whether the statute of limitations on a takings action has passed.

Advisoty Opinion - Pentz Office of the Property Rights Ombudsman August 9, 2007 - page 4 of 7 pages

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(2) If state highways with heavy traffic are regularly used for the movement of livestock, the department, county legislative bodies, and municipal legislative bodies shall construct and maintain livestock roads or trails for livestock travel. 7

Section 2, of this statute provides drovers with their remedy where use of a public highway as a livestock trail is not feasible. This section states that where the (1) state highway (2) with heavy traffic (3) is regularly used for the movement of livestock, then livestock roads and trail shall be constructed.

I-84 is a state highway. UTAH CODE§ 72-4-114. It is beyond argument (and undisputed between the parties) that I-84, an interstate highway, carries heavy traffic. UDOT has sought to prevent Pentz from trailing livestock along 1-84; apparently for that very reason. In addition, the parties do not dispute that Pentz has used 1-84 to trail livestock twice a year for many decades. This use, although not frequent, appears to be regular, in that it takes place at regular intervals. Accordingly, in accordance with the plain language of the statute, ''the department, county legislative bodies, and municipal legislative bodies shall" establish a livestock trail.

UDOT argues that section one of§ 72-3-112, which provides that UDOT "may" create livestock trails, read together• with section (2), which indicates that UDOT "must" provide a livestock trail, invests UDOT with discretion to determine what "heavy traffic" and ''regularly used" mean in order to determine when and where livestock roads "may" be designated and constructed. Therefore, according to UDOT, the statute does not create an absolute statutory duty. Although UDOT is correct that the word "may" in section (1) gives UDOT discretion to decide whether to create a livestock trail, section (2), containing the word "shall," limits UDOT's discretion, and dictates the conditions under which UDOT must provide a livestock trail. See Keith v. Rizzuto, 212 F.3d 1190, 1193 n.3 (10th Cir. 2000) ("It is a basic canon of statutory construction that the use of the word 'shall' indicates a mandatory intent'). Accordingly,§ 72-3-112 obligates UDOT to construct and maintain a livestock trail to enable Pentz to trail its livestock.

It should be noted, however, that § 72-3-112 doe5 not obligate UDOT to build a livestock trail identical or equivalent to the highway/trail, or exclusively for the use of Pentz. Indeed, building a replacement trail identical to the highway in route, length, terrain, elevation, etc., would in al,most every instance be impossible, due to variables in terrain and availability of property. Differences in terrain and availability of passable and obtainable land necessitate a trail that may differ in length, width, incline, or in many other respects from the existing right-of-way. An identical replacement trail is not required by the statute. Section (4) of the statute provides guidance in determining the nature of the replacement right-of-way: (4) A person may not drive livestock upon the public highways when a livestock highway is available and can be used

7 Section (2) of this statute is further evidence that the Utah Legislature considers trailing livestock along a pubic highway a pennlssive use of a public highway, and that such pennission may be revoked by UDOT without giving rise to a taking, in that this statute provides a remedy where it is determined that movement oflivestock is no longer possible or safe along a public highway and such permission must be revoked.

Advisory Opmi.on- Pentz Office of the Property Rights Ombudsman August 9, 2007 - page 5 of 7 pages

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without undue inconvenience (emphasis added). Accordingly, although UDOT may be ohligated to provide a livestock highway, that highway need only be of such a nature that Pentz can use it without undue inconvenience.

Undue inconvenience is not defined in the statute, and the phrase does not appear elsewhere in the Utah Code. The word undue is defined in Blacks Law Dictionary as "excessive or more than necessary." Therefore, UDOT's obligation to provide a cattle trail to Pentz shall be not more inconvenient as is necessary. How necessary the inconvenience is would depend upon several factors such as the ability of UDOT to obtain property for the trail, the availability of pathways through the unique terrain in the area, etc. However, implied in this requirement is the principle that some inconvenience, to the extent necessary, is acceptable.

In establishing tbe alternate livestock trail, UDOT may exercise some of the discretion granted to it in section (1) of UTAH CODE§ 72-3-112. Section (1) provides ways that UDOT may "designate, survey, construct, protect, enter into agreements for, purchase rights-of-way for," a livestock highway. Use of the word "may" in this section indicates that' while UDOT must establish a trail or road for livestock travel, ii need not be by any of these means listed. Accordingly, where the livestock highway proves unduly diflicult or impossible to establish without imposing undue inconvenience upon Pen1z, UDOT may establish a livestock trail by other means available to it that do not impose undue inconvenience upon Pentz. The method used for establishing the alternative livestock trail is at the discretion of UDOT. 8 There is no provision for Pentz to object to or veto the alternative trail provided by UDOT, except for undue inconvenience. In addition, once established, the alternative livestock trail will be a public trail, for use by the public, and not for the exclusive use by Pen1z or exclusively for trailing livestock:. See UTAH CODE § 72-3-112 (''The public may use livestock highways or trails but shall give preference to livestock when livestock is present").

Conclusion

Because I-84 is a public right-of-way, Pentz has no easement to trail livestock along the highway, and therefore no protectable property right. Therefore, an act by UDOT to prevent Pentz from trailing cattle along I-84 is not a taking, and no compensation is clue to Pen1z.

However, UDOT is obligated to establish a livestock trail or ro'ad to allow Pen1z to trail their livestock. This trail do~s must be usable to Pentz without undue inconvenience. In establishing the livestock trail, 'UDOT has discretion to determine the means, method, and route of the trail. In sum, although the statute requires UDOT to establish a livestock trail as an alternative to the I-84 right of way, the replacement trail need not provide Pen1z with the same route, means, or level of convenience as the present trail. r.qe amount of inconvenience that will

1 That the means and route of the alternative trail should be at the discretion ofUDOT complies with the principle 1hat1 in an eminent domain action, "particular questions as to~the route, location, or amount of property to be taken are to be left to the sound discretion of the condemning authority absent a showing by cl oar and convincing evidence that such determinations are the product of fraud, caprice, or arbitrariness." Will/ams v. Hyrum Gibbons & Sons Co., 602 P.2d 684, 688 (Utah 1979).

Advisory Opinion - Pentz Olfice of the Property Rights Ombudsman August9, 2007 -page 6 of 7pages

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be acceptable with respect to the replacement trail will depend on many factors, including to the available property and terrain upon which the replacement trail may be constructed.

Brent N. Bateman, Lead Attorney Office of the Property Rights Ombudsman

NOTE:

This opinion and does not constitute legal advice, and is not to be construed as reflecting the opinions or policy of the State of Utah or the Department of Commerce, The opinions· expressed are arrived at based on a summary review of the factual situation involved in this specific matter, and may or may not reflect the opinion that might be expressed in another matter where the facts and circumstances are different or where the relevant law may have changed.

While the author is an attorney and has prepared this opinion in light of his understanding of the relevant law, he does not represent anyone involved in this matter. Anyone with an interest in these issues who must protect that interest should seek the advice of his or her own legal counsel and not rely on this document as a definitive statement of how to protect or advance his interest

Evidence of a review by the Office of the Property Rights Ombndsman and the opinions, writings, findings, and determinations of the Office of the Property Rights Ombudsman arc not admissible as evidence in a judicial action, except in small claims court, a judicial review of arbitration, or in determining costs and legal fees.

AdvWory Opinion - Pentz Office of the Property Rights Ombudsman August9,2007 -page 7 of?pages

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