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Kane County v. United States

United States District Court, D. Utah

September 5, 2019

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,



         Now 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"[2] 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.

         In 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.[3] 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 discretionary authority.


         This 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.[4] 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.


         Understanding 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.

         I. WHY HAVE A ROAD?

         After 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.

         From 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, 2786 (1976)).

         The 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.[5] 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.


         Because 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.

         For a 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.

         To 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.

         In 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.



         "One 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 (citations omitted).

         At a 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).

         With 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).

         In 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.[6] 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.

         A. Injury in Fact

         In 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 society." Id.

         Notably, 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.

         The 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.[7]

         In more 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 managed.

         Notably, 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 legitimate interest.

         When 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 rights.

Wilderness Soc'y v. Kane County, 632 F.3d 1162, 1166 (10th Cir. 2011) (en banc) (quoting Monument's Management Plan) (alterations in original).

         When FLPMA was passed, it directed the Secretary of the Interior to inventory federal lands to determine areas that were roadless and had wilderness characteristics.[8] 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. § 1782(c)).

         As 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)).

         Moreover, "[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.

         The 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.[9] The Grand-Staircase-Escalante National Monument likewise did not exist at the time.[10] Indeed, SUWA did not exist at the time.[11] 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).

         Given 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.

         The 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.

         Under 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 standing.

         B. Other Prongs of Article III Standing

         Having 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 grant.

         Just 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.

         To 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.

         Because 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.


          I. ELEMENTS

         Rule 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, ...

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