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Kane County, Utah v. United States

United States Court of Appeals, Tenth Circuit

June 25, 2019

KANE COUNTY, UTAH, Plaintiff - Appellee,

          Appeal from the United States District Court for the District of Utah (D.C. No. 2:08-CV-00315-CW)

          Chad R. Derum, Manning Curtis Bradshaw & Bednar PLLC (Jess M. Krannich and Trevor J. Lee, Manning Curtis Bradshaw & Bednar PLLC, and Stephen H.M. Bloch, Southern Utah Wilderness Alliance, with him on the briefs), Salt Lake City, Utah, for Movants-Appellants.

          James A. Maysonett, United States Department of Justice, Environment & Natural Resources Division (Jeffrey Bossert Clark, Assistant Attorney General, and Eric Grant, Deputy Assistant Attorney General, with him of the brief), Washington, D.C., for Defendant-Appellee United States of America.

          Shawn T. Welch, Holland & Hart LLP (Richard D. Flint and Chelsea J. Davis, Holland & Hart LLP, with him on the brief), Salt Lake City, Utah, for Plaintiff-Appellee Kane County, Utah.

          Sean D. Reyes, Utah Attorney General, Anthony L. Rampton, Kathy A.F. Davis, and David Halverson, Assistant Attorneys, Utah Attorney General's Office, Salt Lake City, Utah, on the brief for the Intervenor Plaintiff-Appellee The State of Utah.

          Before TYMKOVICH, Chief Judge, EBEL, and PHILLIPS, Circuit Judges.

          PHILLIPS, Circuit Judge.

         This case comes to us for a third time. This time, we review SUWA's challenge to the district court's denial of its second motion to intervene. SUWA filed this second motion after we reversed the district court's determinations on the width of rights-of-way on three roadways. Responding to the issues now raised, we conclude that SUWA has standing to intervene as a party defendant; that we review SUWA's second motion to intervene de novo and not for an abuse of discretion; and that SUWA has met all requirements to intervene as of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court's denial of SUWA's second motion to intervene.


         In 2008, Kane County sued the United States under the Quiet Title Act, 28 U.S.C. § 2409a, which provides "the exclusive means by which adverse claimants c[an] challenge the United States' title to real property." Block v. N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 286 (1983). Kane County alleged that it held title to fifteen rights-of-way under Section 8 of the Mining Act of 1866, more commonly known as "Revised Statute (R.S.) 2477." In enacting R.S. 2477, Congress codified "a standing offer of a free right of way over the public domain," allowing the construction of highways over public lands not already "reserved for public uses." Lindsay Land & Live Stock Co. v. Churnos, 285 P. 646, 648 (Utah 1929) (internal quotations omitted). In 1976, Congress enacted the Federal Land Policy and Management Act, which repealed R.S. 2477, but preserved already-existing rights-of-way. 43 U.S.C. § 1769(a).

         Seven months after Kane County filed its complaint, SUWA[1] moved to intervene as of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure. Both Kane County and the United States opposed the motion. After a hearing, the district court denied SUWA's motion, concluding that SUWA had no legal interest in the asserted rights-of-way, because "the only issue in this case is whether Kane County can establish that it holds title to the roads at issue" and SUWA "does not claim title to th[ese] roads." Kane Cty., Utah v. United States, No. 2:08-CV-315, 2009 WL 959804, at *2 (D. Utah Apr. 6, 2009). The court further concluded that even if SUWA did have an interest, it had failed to show that the United States would not adequately represent that interest or that it possessed "any special expertise, experience, or knowledge with respect to the historic use of the roads that would not be available to the United States." Id. at *2-3.

         In 2009, SUWA appealed, and in March 2010 we affirmed, concluding that "even assuming SUWA has an interest in the quiet title proceedings at issue, SUWA has failed to establish that the United States may not adequately represent SUWA's interest." Kane Cty., Utah v. United States, 597 F.3d 1129, 1133 (10th Cir. 2010) ("Kane County I"). Specifically, we rejected SUWA's argument that it had shown the United States would not adequately represent SUWA's interest in litigating title, despite SUWA's reliance on its history of adversarial relations with the Bureau of Land Management (BLM) and on the BLM's alleged unwillingness to defend federal control. Id. at 1134-35.

         We raised the possibility of looking beyond the binary title determination to address the "potential scope of Kane County's purported rights-of-way." Id. at 1135. But we ultimately declined to do so after noting that SUWA had not argued in the district court that scope was part of the title determination. Id. Further, we noted that SUWA hadn't even raised the issue on appeal until questioned about it during oral argument. Id. Accordingly, we deemed the scope argument waived "for purposes of this appeal." Id. We affirmed on grounds that SUWA had "failed to establish, at this stage of the litigation, that the federal government will not adequately protect its interest." Id.

         In March 2010, soon after we decided Kane County I, the district court granted the State of Utah's motion to intervene as of right as a plaintiff. Then, in August 2011, after having "traveled all of the roads at issue with counsel and representatives of the parties during a two-day site visit," the district court held a bench trial on the disputed rights-of- way. See Kane Cty., Utah (1) v. United States, No. 2:08-CV-00315, 2013 WL 1180764, at *1 (D. Utah Mar. 20, 2013). At trial, the court heard from twenty-six witnesses and received over one hundred and sixty exhibits. Kane Cty., Utah v. United States, 772 F.3d 1205 (10th Cir. 2014). After post-trial briefing, in which SUWA participated as an amicus curiae, [2] the district court issued memorandum decisions concluding that (1) it had subject-matter jurisdiction under the Quiet Title Act over all the disputed roads, and that (2) Kane County and the State of Utah had proved R.S. 2477 rights-of-way on twelve of the fifteen roads or road segments. Id. The court also decided the scope-i.e., the reasonable and necessary width based on the pre-1976 use-of the proved rights-of-way. Id.

         In 2013, the United States and the plaintiffs each filed separate appeals. We summarily denied SUWA's motion to intervene in the cross-appeals. In 2014, we affirmed in part and reversed in part. Kane Cty., 772 F.3d at 1209-25 ("Kane County II"). Relevant here, we reversed the district court's scope determination for three of the rights-of-way-Swallow Park Road, North Swag Road, and Skutumpah Road-as well as its decision to allow "unspecified future improvements" on these three rights-of-way, id. at 1223-25.[3]

         The "scope" of a right-of-way is a question of state law, and under Utah law a right-of-way may be expanded beyond the beaten path where "reasonable and necessary" to safely accommodate the pre-1976 use. Sierra Club v. Hodel, 848 F.2d 1068, 1080, 1083 (10th Cir. 1988), overruled on other grounds by Vill. of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992). In other words, an R.S. 2477 right-of-way in Utah may be widened "as necessary to meet the exigencies of increased travel, at least to the extent of a two-lane road." Id. at 1083. This analysis requires the district court to proceed in three steps. First, the court must make the binary determination of whether a right-of-way exists at all. Id. Second, the court must determine the pre-1976 uses of the right-of-way. Id. And third, the court must decide whether, based on the pre-1976 use, the right-of-way should be widened to meet the exigencies of increased travel. Id. To the extent that the right-of-way holder wishes to improve[4] the right-of-way beyond what is reasonable and necessary, however, it must first consult with the BLM. Id. at 1084-85.

         In its memorandum decision, the district court had concluded that Kane County and the State of Utah had proved 24-foot rights-of-way on Swallow Park and North Swag roads (five-mile stretches of dirt road with a current travel surface of between 10 and 12 feet), and a 66-foot right-of-way on Skutumpah Road (a "major two-lane thoroughfare" stretching thirty three miles with a current travel surface of between 24 and 28 feet). Kane Cty. II, 772 F.3d at 1223; Kane Cty., 2013 WL 1180764, at *9. But because the district court had failed to consider the pre-1976 uses of these roads, we remanded for it to redetermine the width of the roadways. Kane Cty. II, 772 F.3d at 1223. Specifically, we recognized that while a "road can be 'widened [beyond its pre-1976 boundaries] to meet the exigencies of increased travel,' including where necessary to ensure safety," the reasonableness and necessity of any expansion beyond the pre-1976 right-of-way must be read "'in the light of traditional uses to which the right-of-way was put.'" Id. (emphasis in original) (quoting Hodel, 848 F.2d at 1083).[5]

         After remand, the case slowed until September 2017, when the district court entered an order directing the parties to file briefs on the effect of our ruling. Ten days later, the parties jointly moved for a four-month stay, stating that they had begun settlement discussions and were "optimistic" that they could "reach agreement regarding the effect of [our] decision" and resolve the remaining issues. Appellant's App. at 38, 110-11. Three days later, the district court granted the motion.[6] About two months after that, SUWA sent a letter to the parties requesting "reasonable advance notice" of any settlement discussions and "an opportunity to attend and participate in such discussions," but received no response. Id. at 125, 262-63. About three months after the joint motion was filed, the President of the United States considerably reduced the size of the Grand-Staircase-Escalante National Monument from about 1, 700, 000 acres to about 838, 000 acres.[7] Relevant here, SUWA represented at oral argument that Swallow Park Road and North Swag Road both lie within the de-established portions of the monument, though the United States asserted that only Swallow Park Road does. About three weeks later, SUWA filed a second motion to intervene, [8] which Kane County, the State of Utah, and the United States all opposed.

         Though SUWA styled its 2017 motion as a "Motion to Intervene," the district court treated it as a motion to reconsider its denial of SUWA's 2009 motion to intervene. In deciding the motion, the district court assumed for purposes of argument that the motion was timely, but still denied it on grounds that SUWA had presented nothing to undermine the court's earlier determination that the United States was adequately representing SUWA's interest. In doing so, the district court relied on three bases.

         First, rejecting SUWA's argument to the contrary, the district court ruled that determining title necessarily includes determining the scope of the rights-of-way. The district court reasoned that "scope is inherent in the quiet title process because as a practical matter the court cannot quiet title to an undefined property." Kane Cty., Utah v. United States, No. 2:08-CV-315, 2018 WL 3999575, at *3 (D. Utah Aug. 21, 2018). Second, the court rejected SUWA's argument that the United States was necessarily representing competing interests, reasoning that unlike cases involving environmental regulations or resource management, the United States' sole interest here lay in seeking the narrowest width of the roadways. Id. Third, the court ruled that the "mere possibility of settlement" did not mean that "the United States would advocate for anything other than retention of the maximum amount of property." Id. SUWA timely appealed.


         SUWA argues that the district court erred by denying its second motion to intervene. Kane County, the State of Utah, and the United States ("the Appellees") have each filed response briefs in support of the district court's order. Before considering the merits of their arguments, we must consider Kane County's argument that SUWA lacks Article III standing.[9]

         I. Standing

         To seek relief in federal court, a party must show constitutional standing. Bennett v. Spear, 520 U.S. 154, 162 (1997). To make this showing, a party must "demonstrate that he has suffered injury in fact, that the injury is fairly traceable to the [challenged conduct], and that the injury will likely be redressed by a favorable decision." Id. (internal quotations omitted).

         In San Juan Cty., Utah v. United States, another R.S. 2477 case involving SUWA, a majority[10] of our en banc court held that "parties seeking to intervene under Rule 24(a) or (b) need not establish Article III standing 'so long as another party with constitutional standing on the same side as the intervenor remains in the case.'" 503 F.3d 1163, 1172 (10th Cir. 2007) (en banc) (internal quotations omitted).

         But ten years later, the Supreme Court modified our "piggyback standing" rule, holding that an intervenor as of right must "meet the requirements of Article III if the intervenor wishes to pursue relief not requested" by an existing party. Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S.Ct. 1645, 1648 (2017). In that case, the record was ambiguous whether the intervening plaintiff was seeking a different form of relief from the existing plaintiff: a separate award of money damages against the same defendant in its own name. Id. at 1651-52. Because "[a]t least one [litigant] must have standing to seek each form of relief requested," the Court remanded for the circuit court to determine whether the intervenor, in fact, sought "additional relief beyond" what the plaintiff requested. Id. at 1651.[11]

         Citing Town of Chester, [12] Kane County argues that SUWA cannot simply invoke the United States' Article III standing, contending that SUWA and the United States are pursuing different relief. We disagree with that view. After all, the United States has informed us that it seeks "retention of the maximum amount of property" and will argue for "the smallest widths [it] can based on the historical evidence," the same relief that SUWA seeks.[13] See United States' Resp. Br. at 22, 32; Oral Arg., at 18:30.

         Moreover, even if SUWA needed to establish its own independent standing, it has done so. Article III standing requires a litigant to show: (1) an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury can likely be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).

         Here, as in San Juan County, it is "indisputable that SUWA's environmental concern is a legally protectable interest." See 503 F.3d at 1199. To prove an injury in fact, SUWA must establish an actual or imminent impairment of that interest. Imminence is "a somewhat elastic concept," Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992), and "[a]n allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur," Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (internal quotations omitted).

         Under this standard, we conclude that SUWA has established an imminent injury. Kane County and the State of Utah seek to double the width of Swallow Park and North Swag roads, which are both dirt roads, and to more than double the width of Skutumpah Road. Wider roads will likely require realignments or improvements, such as grading or paving. See generally, Hodel, 848 F.2d at 1084-86; Kane Cty., 2013 WL 1180764. Such widening and improvement of the roads in a scenic area would almost inevitably increase traffic, diminishing the enjoyment of the nearby natural wilderness. See Hodel, 848 F.2d at 1092 (noting that a project involving "realignments, widening, . . . [and] a significant improvement in the quality of the road surface" would accommodate "large increases in future traffic" on the road); S. Utah Wilderness All., 425 F.3d at 748 (noting that improvements may "change the character of the roadway").

         Nor is such an injury speculative. An injury may be imminent even though contingent upon an unfavorable outcome in litigation. See Protocols, LLC v. Leavitt, 549 F.3d 1294, 1299 (10th Cir. 2008) (concluding that "[t]he consequences of a contingent liability . . . may well be actual or imminent" even though "by definition [such liability] may not arise for a considerable time, if ever"). In San Juan County, we recognized that "if the County prevails, it will then pursue opening the road to vehicular traffic that SUWA has been trying to prevent." 503 F.3d at 1200. For that reason, we saw "nothing speculative about the impact on SUWA's interests if the County prevails in its quiet-title action," noting that "the whole point of" Kane County's suit was to increase traffic on the roads.[14] Id. at 1201-02. We acknowledge that San Juan County involved the possibility of reopening closed roads, as opposed to widening already-opened roads, as here-but we view both as sufficient degrees of impact. A 24-foot road allows more traffic than a 10- or 12-foot road (in the case of North Swag and Swallow Park roads), and a 66-foot road allows more traffic than a 24- to 28-foot road (in the case of Skutumpah Road). And the more traffic, the more of an impact on the natural wilderness. Therefore, even assuming SUWA were required to establish its own Article III standing, we conclude that it has done so. See Laidlaw, 528 U.S. at 180-81.

         II. Standard of Review

         Under Rule 24(a)(2) of the Federal Rules of Civil Procedure, a nonparty seeking to intervene as of right must establish (1) timeliness, (2) an interest relating to the property or transaction that is the subject of the action, (3) the potential impairment of that interest, and (4) inadequate representation by existing parties. W. Energy All. v. Zinke, 877 F.3d 1157, 1164 (10th Cir. 2017). We review a district court's timeliness ruling for an abuse of discretion, unless the district court makes no findings on timeliness; in that case, we review de novo. Utah Ass'n of Ctys. v. Clinton, 255 F.3d 1246, 1249 (10th Cir. 2001). And, at least for initial motions to intervene, we review the district court's rulings on the other three prongs de novo. Coal. of Ariz./N.M. Ctys. for Stable Econ. Growth v. Dep't of Interior, 100 F.3d 837, 840 (10th Cir. 1996).

         SUWA filed its second motion to intervene nine years after filing its first.[15]SUWA argues that the district court erred in treating its second motion as one for reconsideration of its denial of the first motion to intervene. Instead, SUWA says, we should review de novo, because it did "not ask the Court to second guess its prior ruling or review previously existing but newly discovered facts," but rather to consider "a new political and legal landscape that did not exist when SUWA moved to intervene a decade ago." SUWA's Opening Br. at 12 n.47. In contrast, the Appellees argue that this court should treat SUWA's second motion as a mere request to reconsider the denial of its 2008 motion to intervene. From this, they argue that the proper standard of review is for an abuse of discretion. See United States v. Huff, 782 F.3d 1221, 1224 (10th Cir. 2015) ("We review a district court's decision whether to reconsider a prior ruling for abuse of discretion.").

         We agree with SUWA. Though our court has never determined what standard of review applies to a successive motion to intervene, we conclude that de novo review is more appropriate when, as here, a proposed intervenor shows that circumstances have changed between the two motions to intervene.

         In City of Colorado Springs v. Climax Molybdenum Co., a movant had filed three motions to intervene over a nearly-fifty-year span. 587 F.3d 1071, 1077 (10th Cir. 2009). Though we ultimately decided the case on standing grounds, we stated that "[i]f we reach the merits of Climax's appeal, our review of the district court's denial of the motion to intervene as of right will be de novo." Id. at 1078.[16]

         In addition, other cases in our circuit point us to de novo review here. In San Juan County, seven judges acknowledged that case developments can alter the intervention calculus. In the lead opinion, Judge Hartz, joined by two other judges, stated that the "denial [of a motion to intervene] does not forever foreclose" intervention and that "the matter may be revisited" if "developments after the original application for intervention undermine" the basis for the initial denial. San Juan Cty., 503 F.3d at 1207 (opinion of Hartz, J.). In addition, Judge Ebel, joined by three other judges, stated "I recognize, and appreciate the [lead opinion's] recognition that SUWA may renew its motion to intervene at a later date if it can demonstrate more clearly a conflict between its interests and the conduct of the United States in this or subsequent litigation." Id. at 1227 (Ebel, J., concurring in part, and dissenting in part). By emphasizing the possibility of changed circumstances, we view the seven judges as recognizing the importance of another round of review. We see no sense in blocking ourselves from the same de novo review we give the initial motion to intervene-when things have so changed.[17] Significantly, our statement in Kane County I also emphasizes a need to reevaluate intervention when circumstances change.[18] See Kane Cty. I, 597 F.3d at 1135 ("[SUWA] has failed to establish, at this stage of the litigation, that the federal government will not adequately protect its interest.") (emphasis added).

         III. SUWA is entitled to intervene as of right.

         As previously noted, to intervene as of right SUWA must establish that (1) the application is timely; (2) it claims an interest relating to the property or transaction which is the subject of the action; (3) the interest may as a practical matter be impaired or impeded; and (4) the interest may not be adequately represented by existing parties. Zinke, 877 F.3d at 1164. "This court has historically taken a liberal approach to intervention and thus favors the granting of motions to intervene." Id. (internal quotations omitted). In addition, "the requirements for intervention may be relaxed in cases raising significant public interests." San Juan Cty., 503 F.3d at 1201 (citing Cascade Nat. Gas Corp. v. El Paso Nat. Gas Co., 386 U.S. 129, 136 (1967)). We now consider each prong in turn.

         A. SUWA's motion is timely.

         Kane County argues that SUWA's motion is untimely. "The timeliness of a motion to intervene is assessed 'in light of all the circumstances, including the length of time since the applicant knew of his interest in the case, prejudice to the existing parties, prejudice to the applicant, and the existence of any unusual circumstances.'" Utah Ass'n of Ctys., 255 F.3d at 1250 (quoting Sanguine, Ltd. v. U.S. Dep't of Interior, 736 F.2d 1416, 1418 (10th Cir. 1984)). "[D]elay in itself does not make a request for intervention untimely." Oklahoma ex rel. Edmondson v. Tyson Foods, Inc., 619 F.3d 1223, 1235 (10th Cir. 2010). "The other factors in the test for untimeliness must also be considered." Id.

         Reviewing de novo, [19] we conclude that SUWA's motion is timely. First, SUWA filed the motion three months after the parties' joint motion to stay. See Zinke, 877 F.3d at 1164-65 (holding that the motion was timely where the intervenors moved to intervene "just over two months after" learning of the lawsuit that could potentially affect their interests). Second, the only prejudice the Appellees allege is that "having to respond to excess briefs" will "needlessly delay the proceedings." Kane Cty. Resp. Br. at 9. Even assuming this could suffice to show prejudice, our court requires that "the prejudice to other parties . . . be prejudice caused by the movant's delay, not by the mere fact of intervention." Tyson Foods, 619 F.3d at 1236. Here, Kane County alleges prejudice just from the fact of intervention. See id. SUWA's participation will be limited to litigating the scope of three roads, and there has been no substantive briefing on this issue since the remand, so we fail to see how allowing SUWA to intervene at this stage would prejudice the Appellees. See San Juan Cty., 503 F.3d at 1174 ("[T]he intervention of SUWA would not expose the United States to any burden not inherent in the litigation to which it has consented in the Quiet Title Act."). Therefore, because no "unusual circumstances" lead us to believe otherwise, we conclude that SUWA's motion is timely. See Utah Ass'n of Ctys., 255 F.3d at 1250.

         B. SUWA possesses an interest that may be impaired by the litigation.

         To meet the interest requirement, an applicant "must have an interest that could be adversely affected by the litigation." San Juan Cty., 503 F.3d at 1199. We apply "practical judgment" when "determining whether the strength of the interest and the potential risk of injury to that interest justify intervention."[20] Id. Establishing the potential impairment of such an interest "presents a minimal burden," WildEarth Guardians v. Nat'l Park Serv., 604 F.3d 1192, 1199 (10th Cir. 2010), and such an impairment may be "contingent upon the outcome of [] litigation," San Juan Cty., 503 F.3d at 1203 (quoting United States v. Union Elec. Co., 64 F.3d 1152, 1162 (8th Cir. 1995)). For example, we have concluded that a commercial wildlife photographer who had "photographed and studied the [Mexican Spotted] Owl in the wild" and had been instrumental in the decision to list the Owl under the Endangered Species Act possessed a legal interest in defending against a lawsuit to rescind that protection. Coal. of Ariz./N.M. Ctys., 100 F.3d at 839-43.

         In San Juan County, we concluded that it was "indisputable that SUWA's environmental concern is a legally protectable interest." 503 F.3d at 1199. But in the present case, the district court declined to revisit its 2009 ruling that SUWA possesses no legal interest in the case. In that decision, the district court had reasoned that (1) "unlike the roads at issue in San Juan County, the roads at issue here have been open to the public for many years," and (2) "the only issue in this case is whether Kane County can establish that it holds title to the roads at issue." Kane Cty., 2009 WL 959804, at *2. These rationales are not persuasive.

         First, as mentioned previously, we view the difference in impacts between opening closed roads and widening already-opened roads as one of degree. Wider roads attract more traffic, which would impair SUWA's interest in preservation and enjoyment of the surrounding land. Second, a majority of our court recognized in San Juan County that although "SUWA d[id] not claim that it ha[d] title" to the disputed right-of-way, Rule 24(a)(2) "requires only that the applicant for intervention 'claim an interest relating to the property or transaction which is the subject of the action.'" 503 F.3d at 1200 (alteration omitted) (emphasis in original) (quoting Fed.R.Civ.P. 24(a)(2)). Given SUWA's decades-long history of advocating for the protection of these federal public lands, and the plaintiffs' stated objective of ...

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