Selman v. Box Elder County

This opinion is subject to revision before final
publication in the Pacific Reporter
2011 UT 18
IN THE
SUPREME COURT OF THE STATE OF U TAH
____________
H AROLD SELMAN , I NC .; F RED SELMAN ; LAURA SELMAN ;
and BRET SELMAN ,
Plaintiffs, Counterclaim Defendants, and Petitioners,
v.
BOX ELDER COUNTY,
Defendant, Counterclaim Plaintiff, and Respondent.
____________
No. 20090479
Filed March 29, 2011
____________
On Certiorari to the Utah Court of Appeals
____________
First District, Brigham City
The Honorable Ben H. Hadfield
No. 070100436
____________
Attorneys:
Shaun L. Peck, Brandon J. Baxter, Logan, for plaintiffs
Stephen R. Hadfield, Brigham City, for defendant
____________
ASSOCIATE CHIEF JUSTICE DURRANT, opinion of the Court:
INTRODUCTION
¶1 	Fred, Laura, and Bret Selman, petitioners in this case, are
principals of Harold Selman, Inc. (collectively, the “Selmans”). The
Selmans own property that is bisected by the border of Box Elder
County and Cache County. Running through the property is a trail

SELMAN V . BOX ELDER C OUNTY
Opinion of the Court
1 Utah Code Ann. §§ 13-43-101 to -206 (2009).
2
that connects the cities of Mantua and Paradise. In 2007, both
counties passed resolutions designating the trail as a county road.
Shortly thereafter, Box Elder County commenced road construction
activities on the trail. As a result of the construction, the Selmans
brought several actions against Box Elder County alleging that the
county’s 	action 	violated 	numerous 	statutes. 	Additionally, 	the
Selmans sought arbitration from the Office of the Property Rights
Ombudsman (the “Ombudsman’s Office”). The Ombudsman’s
Office accepted the case for arbitration, but Box Elder County sought
to stay the arbitration and counterclaimed with a quiet-title action,
contending it was the actual owner of the trail.
¶2 	The district court stayed the arbitration, bifurcated the
case, and held that the Ombudsman’s Office did not have statutory
authority to arbitrate the action since the threshold issue of
ownership was in dispute. The court of appeals upheld the district
court’s decision. We granted certiorari on the issue of “whether the
court of appeals erred in affirming the district court’s construction
of the scope of the arbitration provision of the Property Rights
Ombudsman Act.” We hold that the plain language of the Property
Rights Ombudsman Act1 (the “Ombudsman Act” or the “Act”)
grants the Ombudsman’s Office authority to arbitrate the threshold
issue of property ownership in takings and eminent domain
disputes. Therefore, we reverse.
BACKGROUND
¶3 	The Selmans own a parcel of real property (the “Property”)
that is bisected by the border of Box Elder County and Cache
County. Historically, the Selmans have used the Property as a
summer grazing pasture for their livestock. They currently use the
Property for farming, ranching, and other agricultural pursuits.
Running through the Property is a trail that connects the cities of
Mantua and Paradise. Survey maps dating as early as 1878 show the
trail connecting the two cities. The Selmans use the trail to move
cattle between portions of the Property.

Cite as: 2011 UT 18
Opinion of the Court
2 Id. §§ 17-41-101 to -503 (2009).
3 42 U.S.C. §§ 4321–47 (2009).
4 Utah Code Ann. §§ 57-18-1 to -7 (2009).
3
¶4 	When the Selmans acquired the Property in 1952, the
abstracts of title prepared for the Property did not indicate any
recorded public or private easement, grant of public roadway, or any
other reservation indicating a public interest in the road. From the
time of the original land grant to the present, no legal action has
been taken to adjudicate any path or trail on the Property as a public
road.
¶5 	In 	2007, 	both 	Box 	Elder 	and 	Cache 	County 	passed
resolutions designating, based on historical maps, the trail across the
Property as a county road. Shortly thereafter, Box Elder County
commenced road construction activities on the trail, including the
removal of a gate owned by the Selmans that blocked the trail. The
Selmans allege Box Elder County’s construction work “doubled, and
in some cases, tripled the width of the trail” by cutting into portions
of the Property that Box Elder County “previously acknowledged to
be private property.” The Selmans further allege that this has
“damaged the watershed . . . and compromised the [P]roperty’s use
for agricultural purposes.”
¶6 	In reaction to these construction activities, the Selmans
immediately filed suit against Box Elder County alleging violations
of 	chapter 	41 	of 	title 	17 	of 	the 	Utah 	Code,2 the 	National
Environmental Policy Act of 1969, 3 and the Land Conservation
Easement Act. 4 The Selmans also sought injunctive relief to stop Box
Elder County’s road construction activities. The district court
partially granted the Selmans’ request for injunctive relief and
entered a temporary restraining order stopping all road construction
activities and ordering reinstallation of the gate. But because
litigation was pending regarding ownership of the trail, the district
court did not allow the Selmans to lock the gate to close the trail.
¶7 	Two weeks after the entry of the temporary restraining
order, the Selmans filed an additional claim against Box Elder

SELMAN V . BOX ELDER C OUNTY
Opinion of the Court
5 Utah Code Ann. §§ 17-27a-101 to -803 (2009).
4
County and asserted additional causes of action. Specifically, the
Selmans alleged violation of the County Land Use, Development,
and Management Act; 5 trespass; and inverse condemnation. Both
parties later agreed to consolidate the two actions against Box Elder
County.
¶8 	In addition to the claims against Box Elder County, the
Selmans filed suit against Cache County to stop it from beginning
road construction on its side of the trail. In the complaint against
Cache County, the Selmans asserted the same six claims they had
asserted against Box Elder County in their two previous complaints.
¶9 	After filing the second suit against Box Elder County and
the suit against Cache County, the Selmans requested arbitration of
the dispute from the Ombudsman’s Office pursuant to Utah Code
section 13-43-204. Two weeks later, the Ombudsman’s Office
accepted the Selmans’ arbitration request.
¶10 	A week after the Selmans requested arbitration, Box Elder
County 	answered 	the 	Selmans’ 	complaints 	and 	asserted 	a
counterclaim to quiet title in the trail. Additionally, Box Elder
County filed a motion to bifurcate its quiet-title claim from the
Selmans’ claims and to stay the arbitration and all discovery on the
Selmans’ claims until the quiet-title counterclaim was resolved.
Cache County followed by filing a similar answer and counterclaim
in its case.
¶11 	After hearing oral arguments, the district court bifurcated
the case and granted Box Elder County’s motion to stay arbitration
with the Ombudsman’s Office. The district court held that the
threshold question of ownership of the disputed trail should be
resolved before the Ombudsman’s Office considered the eminent
domain 	issue 	and 	that 	bifurcation 	was 	appropriate 	because
determination of ownership would likely lead the parties to settle.
¶12 	After the district court’s decision, the Selmans appealed to
the Utah Court of Appeals. The Selmans argued that it was not
proper for the district court to stay the arbitration proceedings

Cite as: 2011 UT 18
Opinion of the Court
6 Harold Selman, Inc. v. Box Elder Cnty., 2009 UT App 99, ¶ 11, 208
P.3d 535.
7 Id. ¶ 9.
8 State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650.
5
because the matter was properly before the Ombudsman‘s Office.
Specifically, the Selmans argued that Box Elder County’s quiet-title
claim falls under the umbrella of “takings or eminent domain issues”
appropriate for the Ombudsman’s Office to consider under the
Ombudsman Act. Thus, the Selmans argued, the quiet-title matter
should be included in, not litigated prior to, the arbitration.
¶13 	The Utah Court of Appeals upheld the district court’s
decision. The court of appeals reasoned that the provision of the
Ombudsman Act granting the Ombudsman’s Office authority to
arbitrate takings and eminent domain disputes should be read
narrowly so as not to include issues “peripherally related to a
takings claim,” such as ownership of the property in dispute.6
Additionally, the court reasoned that since the statute suggests that
only 	property 	owners 	may 	invoke 	the 	authority 	of 	the
Ombudsman’s Office and that since takings claims begin with the
premise that ownership is not in dispute, ownership of the property
“is a threshold issue to the subsequent question of whether there
has been a taking” and thus should be “resolved judicially before
arbitration.” 7
¶14 	The Selmans filed a Petition for Writ of Certiorari in June
2009, which we granted on the issue of “whether the court of appeals
erred in affirming the district court’s construction of the scope of the
arbitration provision of the Property Rights Ombudsman Act.” We
have jurisdiction under Utah Code section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶15 	On certiorari, we review the court of appeals’ decision for
correctness, “giving no deference to its conclusions of law.”8

SELMAN V . BOX ELDER C OUNTY
Opinion of the Court
9 LPI Servs. v. McGee, 2009 UT 41, ¶ 11, 215 P.3d 135 (quoting
Savage v. Utah Youth Vill., 2004 UT 102, ¶ 18, 104 P.3d 1242).
10 Id. (quoting Martinez v. Media-Paymaster Plus/Church of Jesus
Christ of Latter-day Saints, 2007 UT 42, ¶ 46, 164 P.3d 384).
11 Martinez, 2007 UT 42, ¶ 46 (internal quotation marks omitted).
6
ANALYSIS
¶16 	We granted certiorari on the issue of whether the court of
appeals erred in affirming the district court’s construction of the
scope of the arbitration provision of the Ombudsman Act. This
requires us to determine whether the Ombudsman’s Office has
authority under the Ombudsman Act to address the issue of
property ownership as it applies to takings and eminent domain
disputes. We hold that it does. Thus, the district court erred in
staying the arbitration proceedings.
I. THE PLAIN LANGUAGE OF THE OMBUDSMAN ACT
ALLOWS THE OMBUDSMAN’S OFFICE TO ARBITRATE
PROPERTY OWNERSHIP AS IT APPLIES TO TAKINGS AND
EMINENT DOMAIN DISPUTES
¶17 	The arbitration provision of the Ombudsman Act does not
support the court of appeals’ conclusion that the issue of property
ownership lies beyond the statutory authority of the Ombudsman’s
Office. Rather, the plain language of the Ombudsman Act indicates
that the Ombudsman’s Office has authority to arbitrate the issue of
property ownership as it applies to takings and eminent domain
disputes.
¶18 	When interpreting statutes, our “‘primary objective . . . is
to give effect to the legislature’s intent.’”9 “To discern legislative
intent, ‘we look first to the statute’s plain language.’”10 In doing so,
“[w]e presume that the legislature used each word advisedly and
read each term according to its ordinary and accepted meaning.”11
Additionally, “‘[w]e read the plain language of the statute as a whole
[] and interpret its provisions in harmony with other statutes in the

Cite as: 2011 UT 18
Opinion of the Court
12 LPI Servs., 2009 UT 41, ¶ 11 (second alteration in original)
(quoting Miller v. Weaver, 2003 UT 12, ¶ 17, 66 P.3d 592).
13 Id. (citing Martinez, 2007 UT 42, ¶ 47).
7
same chapter.’” 12 “When the plain meaning of the statute can be
discerned 	from 	its 	language, 	no 	other 	interpretive 	tools 	are
needed.”13
¶19 	We hold in Part I.A. that the Ombudsman’s Office has
authority to determine the issue of property ownership as it relates
to takings and eminent domain issues. We conclude that the plain
language of the Ombudsman Act grants the Ombudsman’s Office
authority to arbitrate disputes involving takings and eminent
domain issues and that the issue of ownership is a necessary element
to all takings and eminent domain claims. In Part I.B., we hold that
the Selmans qualify as property owners for purposes of invoking the
Ombudsman Act because the mere allegation of property ownership
is sufficient to invoke the authority of the Ombudsman’s Office.
A. The Ombudsman’s Office Has Authority to Arbitrate the Issue of
Property Ownership as It Applies to Takings and Eminent Domain
Disputes Because Property Ownership Is an Essential Element of All
Takings and Eminent Domain Claims
¶20 	Because the Ombudsman’s Office has authority to arbitrate
disputes involving takings and eminent domain claims and because
property ownership is an essential element of all such claims, the
court of appeals erred when it concluded that the issue of property
ownership does not fall under the statutory responsibilities of the
Ombudsman’s Office.
¶21 	The Ombudsman Act grants the Ombudsman’s Office
specific authority to use alternative dispute resolution to resolve
disputes involving takings and eminent domain issues. The Act
states in relevant part that “[i]f requested by the private property
owner and otherwise appropriate, the Office of the Property Rights
Ombudsman shall mediate, or conduct or arrange arbitration for,
disputes between private property owners and government entities

SELMAN V . BOX ELDER C OUNTY
Opinion of the Court
14 Utah Code Ann. § 13-43-204(1)(a) (2009).
15 Id. § 13-43-102(2).
16 View Condo. Owners Ass’n v. MSICO, L.L.C., 2005 UT 91, ¶ 30,
127 P.3d 697 (second and third alterations in original) (quoting
Strawberry Elec. Serv. Dist. v. Spanish Fork City, 918 P.2d 870, 877
(Utah 1996)).
8
that involve: . . . takings or eminent domain issues . . . .”14
¶22 	The Act defines “[t]akings and eminent domain law” as
“the provisions of the federal and state constitutions, the case law
interpreting those provisions, and any relevant statutory provisions
that: . . . involve constitutional issues arising from the use or
ownership of real property . . . .”15 Thus, the Act’s plain language
specifically incorporates our case law interpreting the takings and
eminent domain provisions of the federal and state constitutions into
the statutory definition of the subject matter over which the
Ombudsman’s Office has authority.
¶23 	When 	interpreting 	the 	takings 	and 	eminent 	domain
provisions of the state constitution, we have held that “[a] takings
claim presents two distinct inquiries: ‘First, the claimant must
demonstrate some [protectable] interest in property. If the claimant
possesses a [protectable] property interest, the claimant must then
show that the interest has been taken or damaged by government
action.’”16 Thus, our case law establishes that possession of a
“protectable interest” is the first required element in any takings
claim. And to the degree it is necessary to establish a takings claim,
the Act’s plain language incorporates the “protectable interest”
element into the subject matter over which the Ombudsman’s Office
has authority. Property ownership is a protectable interest. So the
Selmans must establish that they own the property at issue as the
first element of their takings claim and that the Ombudsman’s Office
has authority to arbitrate the issue. This is not to say that the
Ombudsman’s Office has authority to resolve all quiet-title disputes
between private parties and government entities. The Act does not
grant the Ombudsman‘s Office such broad authority. But here the
Selmans have alleged that Box Elder County has taken their property,

Cite as: 2011 UT 18
Opinion of the Court
17 Utah Code Ann. § 13-43-204(1) (emphasis added).
9
so the authority of the Ombudsman’s Office is not being invoked to
resolve a quiet-title dispute—the resolution of the issue of title is
merely a necessary element of the Selmans’ takings claim. And
takings claims are within the authority of the Ombudsman’s Office.
¶24 	Accordingly, 	because 	the 	plain 	language 	of 	the
Ombudsman Act grants the Ombudsman’s Office authority to
arbitrate disputes involving takings and eminent domain issues, and
because property ownership is a necessary element to all takings and
eminent domain claims, we hold that the Ombudsman’s Office has
authority to determine the issue of property ownership insofar as it
relates to the Selmans’ takings claim.
B. The Mere Allegation of Property Ownership Relating to Takings and
Eminent Domain Disputes Is Sufficient to Invoke the Authority of the
Ombudsman’s Office
¶25 	The Ombudsman Act provides that the Ombudsman’s
Office is authorized to mediate or arbitrate takings and eminent
domain disputes “[i]f requested by the private property owner.”17 Box
Elder County contends that this language requires that ownership
be undisputed before the authority of the Ombudsman’s Office may
be invoked. We disagree. The plain language of the Ombudsman Act
supports the determination that a mere allegation of property
ownership in takings and eminent domain disputes is sufficient to
invoke the authority of the Ombudsman’s Office.
¶26 	The Act provides,
The Office of the Property Rights Ombudsman shall
issue a written statement declining to arbitrate or to
appoint an arbitrator when, in the opinion of the
Office of the Property Rights Ombudsman:
(i) the issues are not ripe for review;
(ii) assuming the alleged facts are true, no cause of
action exists under United States or Utah law;
(iii) all issues raised are beyond the scope of the Office of
the Property Rights Ombudsman’s statutory duty to

SELMAN V . BOX ELDER C OUNTY
Opinion of the Court
18 Utah Code Ann. § 13-43-204(3)(b) (emphases added).
19 For example, even if Box Elder County is adjudged to own the
trail, the Selmans may still assert that the county effected a taking by
widening 	the 	trail 	into 	the 	Selmans’ 	adjoining 	property 	and
damaging the watershed. Further, even if the Ombudsman’s Office
determines that the Selmans own the trail and Box Elder County
disclaims any assertion of eminent domain power, a temporary
taking may have occurred when Box Elder County removed the gate
and widened the trail into the Selmans’ adjoining property. See, e.g.,
(continued...)
10
review; or
(iv) the arbitration is otherwise not appropriate.18
¶27 	The language of this provision indicates that there are
situations where the Ombudsman’s Office may initially accept a case
to arbitrate and then later determine that the case involves an area
outside the scope of the statutory authority of the Ombudsman’s
Office. But to make that determination, the Ombudsman’s Office
must have the authority to receive and hear evidence on matters that
might, depending on their resolution, divest the Ombudsman’s
Office of authority—such as when a party asserting a takings claim
does not actually have any interest in the property involved.
¶28 	Here, the Selmans and Box Elder County both allege
ownership of the trail. In addition, the Selmans assert ownership of
the property abutting the trail. The Selmans argue that Box Elder
County effected a taking when it began road construction activities
on the trail and widened the trail by cutting into portions of the
Selmans’ surrounding property. In contrast, Box Elder County
claims that its actions do not constitute a taking because it has
always owned the trail. Consequently, if the Ombudsman’s Office
finds that the Selmans have no protectable interest in either the trail
or the abutting property, the plain language of the Act would
require the Ombudsman’s Office to decline to arbitrate the case
because the Selmans could not prevail on a takings claim. We pause
to note that, in this case, regardless of who is adjudged to own the
trail, 	takings 	issues 	may 	remain 	regarding 	the 	surrounding
property. 19 Therefore, in order to divest the Ombudsman’s Office of

Cite as: 2011 UT 18
Opinion of the Court
19 (...continued)
First English Evangelical Lutheran Church of Glendale v. Cnty. of L.A.,
482 U.S. 304, 321 (1987) (“[W]here the government’s activities have
already worked a taking . . . no subsequent action by the government
can relieve it of the duty to provide compensation for the period
during which the taking was effective.”).
11
authority, the Ombudsman’s Office must find that the Selmans have
no protectable interest in either the trail or the surrounding property.
In contrast, if the Ombudsman’s Office finds that the Selmans have
a protectable interest in either the trail or the abutting property—a
necessary determination in their takings claim—the Ombudsman’s
Office would have the authority to further arbitrate the takings
dispute.
¶29 	Box Elder County argues that allowing the Ombudsman’s
Office to arbitrate the issue of property ownership would be
prejudicial because it requires the arbitrator to assume that the
Selmans own the trail, thereby creating a presumption in favor of
ownership. The county reasons that because the language of the Act
states that only a “property owner” can request the assistance of the
Ombudsman’s Office, allowing the arbitrator to hear the case would
indicate his tacit agreement with the Selmans that they have
ownership of the trail. We disagree. The situation here is not unlike
that which is found in courts of general jurisdiction.
¶30 	In Utah, merely alleging a claim upon which relief can be
granted is sufficient to invoke the jurisdiction of a district court. The
law does not require that all facets of the complaint be proven before
a district court can hear the issue; rather, mere allegations are
sufficient to invoke the court’s jurisdiction and initiate litigation. Just
as a court of general jurisdiction does not have to tacitly agree that
all of the allegations in a complaint are true in order to hear the
complaint, the Ombudsman’s Office does not have to tacitly agree
that the Selmans own the trail in order to arbitrate this matter.
Rather, the Ombudsman’s Office has authority to arbitrate a takings
or eminent domain issue so long as the allegations, if proven, would
provide a right to relief.

SELMAN V . BOX ELDER C OUNTY
Opinion of the Court
12
¶31 	Accordingly, we hold that the mere allegation of property
ownership in a takings or eminent domain dispute is sufficient to
invoke the authority of the Ombudsman’s Office.
CONCLUSION
¶32 	The Ombudsman Act expressly gives the Ombudsman’s
Office authority to arbitrate disputes involving takings and eminent
domain issues. Because property ownership is a necessary element
of all takings and eminent domain claims, we hold that the
Ombudsman’s Office has authority to determine the issue of
property ownership as a threshold issue of disputes involving
takings and eminent domain claims. Furthermore, we hold that mere
allegations of property ownership are sufficient to invoke the
authority of the Ombudsman’s Office to resolve takings and eminent
domain claims. Therefore, the court of appeals erred in affirming the
district court’s construction of the scope of the arbitration provision
of the Ombudsman Act. Accordingly, we reverse the court of
appeals’ decision and remand with instructions that the district court
allow the Ombudsman’s Office to proceed with arbitration of the
Selmans’ takings claim.
____________
¶33 	Chief Justice Durham, Justice Parrish, Justice Nehring, and
Justice Lee concur in Associate Chief Justice Durrant’s opinion.