United States District Court, D. Utah
KANE COUNTY, UTAH 2, 3, and 4, a Utah political subdivision; and STATE OF UTAH, Plaintiffs or Plaintiff-Intervenor, as to State of Utah in Kane County 2,
UNITED STATES OF AMERICA, Defendant, and SOUTHERN UTAH WILDERNESS ALLIANCE et al., Defendant-Intervenors.
MEMORANDUM DECISION AND ORDER RE SUWA'S
WADDOUPS UNITED STATES DISTRICT COURT JUDGE.
before the court is SUWA's Motion to Allow SUWA
Full-Party Participation or to Address the Motion to
Intervene on the Merits. The moments in time that make one
pause and reflect are varied. SUWA's most recent motions
brought about one of those moments. To evaluate what
SUWA's role should be going forward, the court took an
opportunity to look backwards. There is a reason why phrases
such as "20/20 hindsight" and "life can only
be understood backwards" have resonance when different
issues are confronted. The phrases reflect that in the moment
of a decision, it is almost always hard to predict future
effects and outcomes. After those effects and outcomes
happen, however, then the decision is more fully understood.
Having looked backwards, the court recognizes it erred, and
that a course correction is warranted.
making this ruling, the court has taken into consideration
SUWA's four Motions to Intervene on the docket in this
case, including its most recent briefing and
exhibits. Because SUWA has briefed and/or argued the
issue repeatedly in this case and in other cases before this
court, the court is fully informed about SUWA's position
and concludes that further briefing and oral argument would
not be beneficial. For the reasons stated below, the court
denies SUWA's motion to participate as a full party. To
the extent there is an outstanding Motion to Intervene in
this case, the court also denies that motion. It further
modifies the limitations on SUWA's involvement as a
limited permissive intervenor under the court's
court has been assigned Kane County (1), which was
filed in 2008, and Kane County (2), which was filed
in 2010. Both cases involve R.S. 2477 road issues. In or
around 2012, more than twenty other cases were filed by other
counties alleging claims to approximately 12, 000 roads. In
2013, this court also was assigned to do case management on
the new R.S. 2477 litigation pending in this district.
Although the cases are factually distinct,
"consolidation motions, discovery preservation issues,
and third-party motions to intervene" were arising in
multiple cases. Case Mgmt. Order, at 2 (ECF No. 78). The
parties asked for a consolidated case management order. Based
on the "benefit from a coordinated and consistent
approach to resolving similar pretrial issues," and the
need to minimize the strain on resources, as well as to
achieve "the efficient and orderly presentation of
business before it," a global case management order was
entered on March 13, 2013 (ECF No. 78), and has directed the
management of these cases. Throughout all of this litigation, this
court has had interaction with SUWA. It knows of SUWA's
role from the time it first sought to intervene in these R.S.
2477 road cases, which informs this decision.
THE PROPERTY RIGHT AT ISSUE
the property right at issue should be easy, and it is easy if
one looks only at the surface. The answer, however, does not
lie on the surface. Instead, the property right at issue may
only be understood by placing it in historical context and
being informed by the comparative elements and nature of the
claim. It is the elements and nature of the particular
property dispute before the court that inform whether SUWA
may participate in this action.
WHY HAVE A ROAD?
the United States expanded its boundaries to the Pacific
Ocean, Congress passed a series of acts to encourage
settlement and development of the west. Among these were the
Homestead Act of 1862 (granting lands for settlement), the
Pacific Railway Act of 1862 (supporting development of a
transcontinental railroad by granting lands), and the Morrill
Act of 1862 (promoting development of public colleges by
granting lands). Against this backdrop, in 1866, Congress
also gave "an open-ended grant of 'the right-of-way
for the construction of highways across public lands, not
otherwise reserved for public purposes.'" S.
Utah Wilderness All. v. BLM, 425 F.3d 735, 740 (10th
Cir. 2005) (quoting Mining Act of July 26, 1866, ch. 262,
§ 8, 14 Stat. 251, 253 (1866), repealed by
Federal Land Policy Management Act of 1976, Pub. L. No.
94-579, § 706(a), 90 Stat. 2743)). Such highways are now
commonly referred to as R.S. 2477 roads, and "most of
the transportation routes of the West were established under
[R.S. 2477's] authority." Id. at 740.
Indeed, "R.S. 2477 rights of way were an integral part
of the congressional pro-development lands policy," and
were "deemed a good thing." Id. at 740-41.
1866 through 1976, the grant for the creation of highways
remained in place until Congress passed the Federal Land
Policy Management Act of 1976 ("FLPMA"). Although
Congress changed its focus in 1976 to conservation and
preservation, FLPMA nevertheless provided that any valid R.S.
2477 right-of-way existing at the time of FLPMA's passage
"would continue in effect." Id. at 741
(citing Pub. L. No. 94-579, § 701(a), 90 Stat. 2743,
court takes judicial notice that Kane County was founded in
1864 while Utah was still a territory. It was formed in the
midst of the Acts discussed above to settle the west and
establish roads across public lands. It would be illogical to
conclude that no R.S. 2477 roads were established between
1866 and 1976 in Kane County. Kane County therefore has a
legitimate interest in protecting any valid property rights
it acquired during that time period. Unfortunately, what
"used to be a non-issue" with respect to these
roads, has now "become a flash point." Id.
at 742. This action arises due to FLPMA's grandfathering
provision and ensuing disputes.
WHOSE ROAD IS ON THE GROUND?
FLPMA grandfathered in existing property rights,
Plaintiffs' suit is not about establishing new roads
across public lands. It is about proving who the title owner
is of roads that already exist on the ground. For
Plaintiffs to prove they acquired these roads before
FLPMA's passage, courts have required Plaintiffs to file
a Quiet Title Action under 28 U.S.C. § 2409a.
cause of action to lie under § 2409a, Plaintiffs must
prove "(1) the United States 'claims an
interest' in the property at issue; and (2) title to the
property is 'disputed.'" Kane
County, Utah v. United States, 772 F.3d 1205,
1210-11 (10th Cir. 2014) (citation omitted). If Plaintiffs
can pass that jurisdictional bar, they then must prove
acceptance of the grant typically by public use or by
mechanical means prior to October 21, 1976. The court makes
the distinction between title arising under R.S. 2477 and
title arising in another context.
illustrate this distinction, the court references School and
Institutional Trust Lands ("SITLA parcels"). SITLA
parcels are owned by the State of Utah. Some of the SITLA
parcels are located within federal preservation areas. To
ensure the State can make use of its SITLA parcels and that
the BLM can maintain its priority preservation areas, at
times, the State and the United States have entered into
exchanges of property. One of the more recent exchanges
occurred under the Utah Recreational Land Exchange Act of
2009. It involved a present-day conveyance of title to
parcels from one government to another in exchange for a
corresponding conveyance of title to other parcels. The very
nature of that title exchange necessitated complex
environmental analyses and cost studies before the exchange
could be put into effect. One would anticipate competing
interests being evaluated under such circumstances.
contrast, R.S. 2477 title issues do not involve the present
day. They look to events that had to have occurred before
October 21, 1976. No. matter how vehemently a person may
oppose a road in a certain area today, or how justified that
vehemence is, those factors are irrelevant to the court's
analysis. When determining title under R.S. 2477, the court
does not consider anyone's present interest in
land use issues or management, much less anyone's
competing interests. Kane County is a hotbed for
competing land interests. For every group that wants to
preserve land, there is a competing group that wants the land
open for development or recreation. Such competing interests
cannot and do not inform the court's decision about who
owns title to the property when that title arises
under R.S. 2477. The specific R.S. 2477 title issue is simply
not open for public opinion or comment. Thus, the nature of
the particular property dispute before the court informs
whether SUWA has a right to participate in this action.
ARTICLE III STANDING
essential aspect of [a court's jurisdiction] is that any
person invoking the power of a federal court must demonstrate
standing to do so." Virginia House of Delegates v.
Bethune-Hill, 139 S.Ct. 1945, 1950 (2019) (quotations
and citation omitted). Article III standing "is a
doctrine rooted in the traditional understanding of a case or
controversy." Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016). It satisfies the constitutional
"cases" and "controversies" requirement,
Bank of Am. Corp. v. City of Miami, 137 S.Ct. 1296,
1302 (2017) (citing U.S. Const, art. Ill. § 2), and
"limits the category of litigants empowered to maintain
a lawsuit in federal court to seek redress for a legal
wrong." Spokeo, Inc., 136 S.Ct. at 1547
minimum, the person seeking entrance to the court on its own
footing must have (1) suffered "a concrete and
particularized injury, that (2) is fairly traceable to the
challenged conduct, and (3) is likely to be redressed by a
favorable judicial decision." Bethune-Hill, 139
S.Ct. at 1950 (citations omitted). The first element is
"first and foremost." Spokeo, 136 S.Ct. at
1547 (quotations, citation, and alteration omitted). It
involves "an invasion of a legally protected
interest" that is "actual or imminent."
Id. at 1548 (quotations and citation omitted).
respect to a person seeking entry as an intervenor, the
United States Supreme Court has clarified that "[f]or
all relief sought, there must be a litigant with standing. .
. . Thus, at the least, an intervenor of right must
demonstrate Article III standing when it seeks additional
relief beyond that which the [real party in interest]
requests." Town of Chester, N.Y. v. Laroe Estates,
Inc., 137 S.Ct. 1645, 1651 (2017) (emphasis added). When
a person "is not himself the object of the government
action or inaction he challenges, standing is not precluded,
but it is ordinarily 'substantially more difficult'
to establish." Lujan v. Defenders of Wildlife,
504 U.S. 555, 562 (1997) (citations omitted).
SUWA's Motion to Intervene on May 25, 2018 and its Motion
to Intervene on July 10, 2019, SUWA did not mention standing
or meet its obligation to explain how it has standing before
the court. The court references the latter two Motions to
Intervene because by those dates the Supreme Court had issued
its clarifying ruling on intervenor-standing
requirements. The court addresses this issue now because
the Supreme Court has stated Article III "standing to
litigate cannot be waived." Bethune-Hill, 139
S.Ct. at 1951.
Injury in Fact
Sierra Club v. Morton, 405 U.S. 727, 728 (1972), the
Supreme Court addressed whether the Sierra Club had standing
to challenge the development of an extensive ski resort at
Mineral King Valley in the midst of the Sierra Nevada
Mountains. The Court stated, "[t]he injury alleged by
the Sierra Club will be incurred entirely by reason of the
change in the uses to which Mineral King will be put, and the
attendant change in the aesthetics and ecology of the
area." Id. at 734. It then said, "[w]e do
not question that this type of harm may amount to an
'injury in fact' sufficient to lay the basis for
standing under § 10 of the APA." Id.
(emphasis added). This is so because "[a]esthetic and
environmental well-being, like economic well-being, are
important ingredients of the quality of life in our
Sierra Club pertained to changing Mineral King from
a quiet valley to an extensive ski resort. Mineral King was
going to be altered fundamentally with a new road and new
structures. Nevertheless, the Supreme Court ruled the Sierra
Club lacked standing because the test was not injury to the
environment or "injury to a cognizable interest,"
but injury to the party seeking review of an administrative
action. See Id. at 734-35. The Sierra Club had
failed to show such injury to gain Article III standing.
facts of this case are even more attenuated from standing
than those presented in Sierra Club because no
administrative decision on land use is being challenged. No.
new roads are at play. No. new structures are being built.
This suit only pertains to who holds title to roads already
existing on the ground.
recent years, the Tenth Circuit has ruled that
"SUWA's environmental concern is a legally
protectable interest." San Juan County, Utah v.
United States, 503 F.3d 1163, 1199 (10th Cir. 2007).
This interest has allowed SUWA to sue the United States,
under certain circumstances, when it believes federal lands
have not been maintained or managed properly. SUWA seeks to
use its legally protectable interest (tied to land uses, not
title) to act as a party of right in this litigation. SUWA
contends it has a right to be in this litigation because if
Plaintiffs prove they established a road before 1976, it will
suffer injury to its interests in how the land is used and
SUWA is not a property owner. Unlike the real parties in
interest, it has no claim of title to any of the land at
issue. Thus, its protectable interest is tangential to this
quiet title action. This is significant because all of the
land at issue is subject to existing R.S. 2477 property
rights. Whatever protectable interest SUWA may have, it
emerged subject to those R.S. 2477 interests and cannot
encroach upon them. In other words, if a road at issue ends
up being Plaintiffs' and wider than SUWA wants, but the
grant of that road width existed before SUWA's interests
arose, SUWA cannot claim it suffered a concrete and
particularized injury because there was no actual injury to a
Presidential Proclamation 6920 was issued to establish the
Grand-Staircase- Escalante National Monument, it
"expressly preserved all valid existing
rights-of-way" within the Monument. Kane County,
Utah v. U.S., 934 F.Supp.2d 1344, 1351 (D. Utah 2013),
affirmed in part and rev'd in part on other
grounds, 772 F.3d 1205 (10th Cir. 2014). When the
Monument's management plan was developed, it stated:
If claims are determined to be valid R.S. 2477 highways, the
Approved Plan will respect those as valid existing rights. .
. . Nothing in this Plan alters in any way any legal rights
the Counties of Garfield and Kane or the State of Utah has
[sic] to assert and protect R.S. 2477 rights, and to
challenge in Federal court or other appropriate venue any BLM
road closures that they believe are inconsistent with their
Wilderness Soc'y v. Kane County, 632 F.3d 1162,
1166 (10th Cir. 2011) (en banc) (quoting Monument's
Management Plan) (alterations in original).
FLPMA was passed, it directed the Secretary of the Interior
to inventory federal lands to determine areas that were
roadless and had wilderness characteristics. Kane County,
Utah v. United States, 772 F.3d 1205, 1216 (10th Cir.
2014). When the Secretary designated a land as a wilderness
study area ("WSA"), the Secretary then had "to
manage such lands 'in a manner so as not to impair the
suitability of such areas for preservation as
wilderness,' and to 'take any action required to
prevent unnecessary or undue degradation of the lands and
their resources.'" Id. (quoting 43 U.S.C.
stated above, however, FLPMA also required that all valid
R.S. 2477 rights-of-way be grandfathered in and preserved for
those who acquired them before October 21, 1976. The BLM
reconciled these competing aspects of FLPMA by stating
"roadless" areas for purposes of a WSA involve
"roads" that are "not coterminous with a
'road' under R.S. 2477." Id.
"[T]he BLM Director of Utah issued" the following
clarification: "The wilderness inventory process uses a
definition of a road that is distinct from the definition
of' public' road contemplated by R.S. 2477 (43 U.S.C.
§ 932) and is a definition for inventory purposes only,
not for establishing rights of counties, etc. . . ."
Id. (quoting Instruction Memorandum No. UT
'80-240 (Mar. 6, 1980)).
"[a] subsequent nationwide BLM memorandum stated that
where WSAs overlap with R.S. 2477 rights-of-way, 'the
WSA/wilderness designation is subject to the terms
and conditions of the pre-existing R/W grant.'"
Id. at 1216-17 (quoting Instructional Memorandum No.
90-589 (Aug. 15, 1990) (emphasis added)). The Secretary of
the Interior then further explained "that valid existing
rights, including rights-of-way, were excepted from the non-
impairment requirements of 43 U.S.C. § 1782(c)."
Id. at 1217 (citing United States Dep't of the
Interior Solicitor's Opinion M-36910, 88 Id.
909, 1981 WL 29226 (Oct. 5, 1981)). Thus, wilderness study
areas can, and do, exist with roads in them.
wilderness study areas that the BLM now manages in Kane
County did not exist at the time the R.S. 2477 roads were
being established. The Grand-Staircase-Escalante National
Monument likewise did not exist at the time. Indeed, SUWA
did not exist at the time. And no other
defendant-intervenor in this action ever litigated the status
of any road in Kane County or the State of Utah before 1976,
as to whether a road should be opened, closed, or otherwise.
This is not surprising because "the federal
government's pre-1976 policy of opening and developing
the public lands" meant "parties rarely had an
incentive to raise or resolve potential R.S. 2477 issues
while the statute was in effect," and to the extent they
did, it involved private land. S. Utah Wilderness All. v.
BLM, 425 F.3d 735, 741 (10th Cir. 2005).
these circumstances, the court states again that whatever
protectable interest SUWA has, it was taken subj ect to the
title holder's interests that arose before SUWA's,
and SUWA cannot encroach upon them. SUWA is not facing an
"invasion of [its] legally protectable interest"
because it can have no "concrete and particularized
injury" by yielding that which it never legally had.
court offers the following example to illustrate this point.
A property owner owns a large parcel of pristine land. It has
a main access road across it, but the land is largely
undisturbed. The property owner believes in conserving land.
He therefore enters into an agreement with a land trust
company to put a conservation easement on his property. One
of the terms of the agreement is that there can be no public
roads across the land. The property owner puts a gate across
the road and posts a "No Trespassing" sign to
ensure the public does not drive on the road. The problem,
however, is that both the property owner and the land trust
company knew at the time of entering the agreement the road
may be a public way.
such a circumstance, the agreement and subsequent actions by
the property owner cannot alter the status of the road. Nor
can a person enter into an agreement, knowing the agreement
may be contrary to someone else's rights, and then claim
standing because its interests in the agreement are being
injured. If this were so, anyone could write his or her way
into any lawsuit. Such is not the concrete and particularized
injury that is actual, as required by Article III
Other Prongs of Article III Standing
failed to satisfy the first prong for standing, SUWA cannot
satisfy the remaining prongs because they both derive from an
injury in fact. The court will note, however, that this
litigation is not like many other forms of litigation. It
does not involve a wrong committed by one person to the
detriment of another. Instead, the question is whether
Plaintiffs accepted a grant from the United States during a
period of time when the United States freely offered that
because SUWA "has taken sides in what is essentially a
property dispute between two landowners," Wilderness
Soc'y, 632 F.3d at 1171, does not mean it has an
injury supporting standing, much less that it is traceable to
Plaintiffs' conduct. Rather, if Plaintiffs prevail, then
it is SUWA's interests that encroached upon
Plaintiffs' rights, not vice versa. If the United States
prevails, SUWA suffers no injury. Either way, there is no
injury to SUWA fairly traceable to Plaintiffs' conduct
that is at issue.
satisfy the requirement for redressability, a party must show
a "likelihood that the requested relief will redress the
alleged injury." Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 103 (1998) (citations omitted).
But in the context of Article III standing, the injury at
play is that which "it takes to make a justiciable
case." Id. at 102 (citation omitted). SUWA does
not have a justiciable injury in an R.S. 2477 context. It
certainly wants the United States to prevail so it can
continue its land use objectives without Plaintiffs'
involvement, but land use issues are for another day and in
another arena. A quiet title action is not one of them.
SUWA has shown no justiciable injury in this case, there is
nothing to redress. The court therefore concludes that SUWA
has no Article III standing to the extent it seeks additional
relief beyond that which the United States requests.
AS OF RIGHT
24(a) of the Federal Rules of Civil Procedure set forth the
conditions for intervention as of right. SUWA must (1)
"claim an interest relating to the property or
transaction that is the subject of the action," and (2)
be "so situated that disposing of the action may as a
practical matter impair or impede the movant's ability to
protect its interest, ...