Petition for Writ of Certiorari — Kane County, Utah, et al., Petitioners v. United States, et al.

App. 1

928 F.3d 877

United States Court of Appeals, Tenth Circuit.

KANE COUNTY, UTAH, Plaintiff-Appellee,

and

The State of Utah, Intervenor Plaintiff-Appellee,

v.

UNITED STATES of America, Defendant-Appellee.

Southern Utah Wilderness Alliance;

The Wilderness Society, Movants-Appellants.

No. 18-4122.

|

FILED June 25, 2019

Appeal from the United States District Court for

the District of Utah; (D.C. No. 2:08-CV-00315-CW).

Attorneys and Law Firms

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 MovantsAppellants.

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

App. 2

on the brief ), Salt Lake City, Utah, for PlaintiffAppellee 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

PHILLIPS, Circuit Judges.

Judge, EBEL, and

Opinion

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.

App. 3

BACKGROUND

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, 103 S.Ct. 1811, 75

L.Ed.2d 840 (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, 75 Utah

384, 285 P. 646, 648 (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, SUWA1 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

1

SUWA is a member-based nonprofit dedicated to preserving

the wilderness of the Colorado Plateau. The Wilderness Society

and the Sierra Club both joined SUWA’s motion to intervene.

App. 4

“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

App. 5

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

2

The district court allowed SUWA to participate as amicus

in a limited capacity. The court denied SUWA’s request to address

the court during trial, but did accept three of its post-trial briefs

(though it limited SUWA to those briefs). And in one of its posttrial memorandum decisions, the district court considered

SUWA’s jurisdictional arguments. See Kane Cty., Utah v. United

States, 934 F. Supp. 2d 1344, 1347, 1360–64 (D. Utah 2013), aff ’d

in part, rev’d in part and remanded, 772 F.3d 1205 (10th Cir.

2014).

App. 6

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-ofway in Utah may be widened “as necessary to meet the

3

Though not at issue here, we also reversed the district

court’s finding of subject-matter jurisdiction to resolve title over

six of the roads, id. at 1213–14; affirmed the district court’s

determination that the limitations period had not yet run on one

of the roads, id. at 1216–19; and reversed the district court’s

determination that one of the roads was “reserved for public use”

under R.S. 2477, id. at 1222.

App. 7

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 improve4

the right-of-way beyond what is reasonable and

4

We have distinguished between “routine maintenance,

which does not require consultation with the BLM,” and

“construction of improvements, which does.” S. Utah Wilderness

All. v. Bureau of Land Mgmt., 425 F.3d 735, 748–49 (10th Cir.

2005), as amended on denial of reh’g (Jan. 6, 2006). “Construction

of improvements” includes “the widening of the road, the

horizontal or vertical realignment of the road, the installation (as

distinguished from cleaning, repair, or replacement in kind) of

bridges, culverts and other drainage structures, as well as any

significant change in the surface composition of the road (e.g.,

going from dirt to gravel, from gravel to chipseal, from chipseal to

asphalt, etc.), or any improvement, betterment, or any other

change in the nature of the road that may significantly impact Park

lands, resources, or values. Id. (internal quotations omitted). In

contrast, “routine maintenance” “preserves the existing road,

including the physical upkeep or repair of wear or damage

whether from natural or other causes, maintaining the shape of

the road, grading it, making sure that the shape of the road

permits drainage, and keeping drainage features open and

operable—essentially preserving the status quo.” Id. (alterations

omitted). “Under this definition, grading or blading a road for the

first time would constitute ‘construction’ and would require

advance consultation, though grading or blading a road to

preserve the character of the road in accordance with prior

practice would not.” Id.

App. 8

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 rightof-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

5

Kane County and the State of Utah each unsuccessfully

petitioned the United States Supreme Court for a writ of

certiorari. Kane Cty., Utah v. United States, ___ U.S. ___, 136

S. Ct. 318, 193 L.Ed.2d 228 (2015); Kane Cty., Utah v. United

States, ___ U.S. ___, 136 S. Ct. 319, 193 L.Ed.2d 228 (2015).

App. 9

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

6

On January 2, 2018, the parties jointly requested and were

granted an additional stay of 31 days. The day the second stay

expired, Kane County filed a “Supplemental Brief and Request for

Further Findings of Fact and Conclusions of Law,” asking the

court to conduct an additional site inspection. The United States

responded, agreeing that further fact-finding was necessary, but

asserting that the existing record could be supplemented by lay

and expert testimony without a second site visit.

7

See Presidential Proclamation Modifying the Grand StaircaseEscalante National Monument, 2017 WL 5988612, https://www.

whitehouse.gov/presidential-actions/presidential-proclamationmodifying-grand-staircase-escalante-national-monument/. This

proclamation, along with a proclamation reducing Bears Ears

ational Monument from around 1,350,000 acres to about 200,000

acres, were the first diminishments of a national monument in

over half a century, and by far the largest in U.S. history. See

National Park Service, Monuments List, https://www.nps.

gov/archeology/sites/antiquities/monumentslist.htm (last visited

June 6, 2019).

App. 10

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

8

The Wilderness Society joined the second intervention

motion, but the Sierra Club did not.

App. 11

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.

DISCUSSION

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, 117 S.Ct. 1154, 137 L.Ed.2d 281 (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).

9

The Appellees make no prudential-standing arguments.

App. 12

In San Juan Cty., Utah v. United States, another

R.S. 2477 case involving SUWA, a majority10 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., ___ U.S. ___, 137 S. Ct. 1645,

1648, 198 L.Ed.2d 64 (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

10

Unless we indicate otherwise, every citation to San Juan

County refers to a portion of Judge Hartz’s lead opinion that

received seven votes.

11

The dissent cites Safe Streets Alliance v. Hickenlooper, 859

F.3d 865, 913 (10th Cir. 2017), for the proposition that “any party”

seeking to intervene must demonstrate its own independent

Article III standing. Dissenting Op. at 898–99. But language to

App. 13

Citing Town of Chester,12 Kane County argues that

SUWA cannot simply invoke the United States’ Article

that effect in Safe Streets is dicta. Safe Streets involved two States

(Nebraska and Oklahoma) seeking to intervene as plaintiffs in an

action against another State, Colorado. There, we held that we

were without subject matter jurisdiction to consider the State’s

intervention motion, because 28 U.S.C. § 1251(a) gave exclusive

subject-matter jurisdiction to the United States Supreme Court

to resolve disputes between two states. Id. at 877, 912. Furthermore, Safe Streets relied on Hollingsworth v. Perry, 570 U.S.

693, 708, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013), for this dicta

about constitutional standing, but Hollingsworth, in fact, applied

the piggyback standing rule. There, the intervenors had to demonstrate their own standing because they were the sole parties to

seek an appeal. Id. at 702, 708, 133 S.Ct. 2652. Here, the United

States remains a party. The dissent also cites United States v.

Colorado & Eastern Railroad Company, 882 F.3d 1264 (10th Cir.

2018). But again, that case is inapposite because there the wouldbe intervenor seeking to enforce a consent decree that it was not

a party to “could not ‘piggyback’ on the standing of one of the

described parties to the Consent Decree because there was no

current case or controversy pending before the court on the part

of those parties.” Id. at 1268. In contrast, there exists a live controversy between the United States and the plaintiffs in this case.

12

Town of Chester involved a plaintiff-side intervenor, but

we see no reason not to apply that rule to defendant-side

intervenors as well. See Pennsylvania v. President United States

of Am., 888 F.3d 52, 57 n.2 (3d Cir. 2018) (holding that a specialinterest group seeking to intervene as a defendant to defend a

challenged federal law did not need to demonstrate Article III

standing, because the group was seeking “the same relief as the

federal government,” namely, the upholding of the law). In the

action before us, the distinction between a plaintiff-side and

defendant-side intervenor is unimportant, considering how easily

a similar dispute could have been presented at the federal

government’s initiative as a plaintiff. See e.g., Kane Cty., 934

F. Supp. 2d at 1363 (noting that, before Kane County brought this

quiet-title action, the BLM had sued Kane County for trespass

regarding the same roads at issue here).

App. 14

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)

13

Contrary to the dissent’s view, see Dissenting Op. at 898,

the interests of the United States and SUWA are not necessarily

identical under Rule 24(a)(2) just because they pursue the same

form of relief for piggyback standing under Town of Chester. See

e.g., Coal. of Ariz./N.M. Ctys. for Stable Econ. Growth v. Dep’t of

Interior, 100 F.3d 837, 845 (10th Cir. 1996) (concluding that

interests were not identical even though both the government and

the intervenor sought to uphold the Mexican Spotted Owl’s

protection); Utah Ass’n of Ctys. v. Clinton, 255 F.3d 1246, 1256

(10th Cir. 2001) (concluding that interests were not identical even

though the government and the intervenor both sought to uphold

the proclamation creating a national monument). To hold otherwise would leave movants who pursued the same form of relief as

the representative party per se adequately represented under

Rule 24(a)(2) and thus denied intervention under Town of

Chester. See Pennsylvania v. President United States of Am., 888

F.3d 52, 57 n.2, 60–62 (3d Cir. 2018) (finding inadequate

representation where the intervenors pursued the same relief as

the party with standing under Town of Chester); Doe v. Zucker,

No. 117CV1005GTSCFH, 2019 WL 111020, at *10, *12 (N.D.N.Y.

Jan. 4, 2019) (same) (“Even though Respondents and IntervenerRespondents seek the same ultimate relief [under Town of Chester], their interests remain different enough that Respondents

might not adequately represent their unique interests.”).

App. 15

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, 120

S.Ct. 693, 145 L.Ed.2d 610 (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, 112 S.Ct. 2130, 119 L.Ed.2d 351

(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,

134 S.Ct. 2334, 189 L.Ed.2d 246 (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

App. 16

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

14

Though this portion of the opinion concerned the potential

impairment of SUWA’s interests under Rule 24(a)(2), other courts

have recognized that “any person who satisfies Rule 24(a) will

also meet Article III’s standing requirement.” Roeder v. Islamic

Republic of Iran, 333 F.3d 228, 233 (D.C. Cir. 2003); see also

Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 946 (7th Cir.

2000) (“Any interest of such magnitude as to support Rule 24(a)

intervention of right is sufficient to satisfy the Article III standing

requirement as well.”) (internal quotations and alterations

omitted).

App. 17

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, 120 S.Ct. 693.

II. Standard of Review

Under Rule 24(a)(2) of the Federal Rules of Civil

Procedure, a non-party 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).

App. 18

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.

15

Kane County represents that this is SUWA’s “fifth

attempt” to intervene in this case. See Kane Cty.’s Resp. Br. at 1.

To reach this figure, Kane County includes SUWA’s appeal of the

2008 denial, SUWA’s attempt to intervene in the Kane County II

appeal, and SUWA’s current appeal. We reject such a broad

characterization.

App. 19

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

16

We note that the dissent’s cited cases on this point, Abeyta

v. City of Albuquerque, 664 F.3d 792, 796 (10th Cir. 2011), and

Plain v. Murphy Family Farms, 296 F.3d 975, 978 975, 978 (10th

Cir. 2002), contain stray comments characterizing a successive

motion for intervention as a motion to reconsider. See Dissenting

Op. at 901–02. But neither case involved an appeal of the denial

of an intervention motion. Rather, both cases conclude that a

nonparty cannot appeal an adverse judgment unless “the nonparty has a unique interest in the litigation and becomes involved

in the resolution of that interest in a timely fashion both at the

district court level and on appeal.” Abeyta, 664 F.3d at 796 (citing

Plain, 296 F.3d at 978).

App. 20

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

17

We discuss these developments later in Part III.C addressing adequate representation. In short, we consider a district

court’s moving from the binary title question to the more nuanced

scope question as a qualifying development, as well as the change

in presidential administration and its recent efforts to settle. See

Zinke, 877 F.3d at 1169 (“[T]he change in the Administration

raises the possibility of divergence of interest or a shift during

litigation.”) (internal quotations omitted).

18

Indeed, during oral argument in Kane County I, the panel

explored whether SUWA’s interests might not arise until after

title had been decided in favor of Kane County or the State of

Utah.

App. 21

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, 87 S.Ct. 932, 17 L.Ed.2d 814 (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.

App. 22

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.

19

We review the timeliness prong de novo because the

district court made no timeliness findings. See Utah Ass’n of Ctys.,

255 F.3d at 1249.

App. 23

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

20

Though our court used to require an interest to be “direct,

substantial, and legally protectable,” we abandoned that test in

San Juan County, finding it “problematic.” 503 F.3d at 1192.

App. 24

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 rightof-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 widening these roads, we

conclude that SUWA has an interest that may be

impaired by the litigation. See id. at 1201; Coal. of

Ariz./N.M. Ctys., 100 F.3d at 838–41; Utah Ass’n of

Ctys., 255 F.3d at 1252.

App. 25

C. The United States may not adequately

represent SUWA’s interest.

Next, SUWA must show that existing parties may

not adequately represent its interest. This burden is

“minimal,” and “it is enough to show that the representation ‘may be’ inadequate.” Nat. Res. Def. Council

v. U.S. Nuclear Regulatory Comm’n, 578 F.2d 1341,

1345 (10th Cir. 1978) (quoting Trbovich v. United Mine

Wkers., 404 U.S. 528, 538 n.10, 92 S.Ct. 630, 30 L.Ed.2d

686 (1972)). “Of course, representation is not inadequate simply because the applicant and the representative disagree regarding the facts or law of the case.”

Sanguine, 736 F.2d at 1419. “Nor is representation

inadequate merely because the representative enters

into a [settlement], because any case, even the most

vigorously defended, may culminate in a [settlement].”

Id. (internal quotations omitted).

When a would-be intervenor’s and the representative party’s interests are “identical,” we presume

adequate representation. Bottoms v. Dresser Indus.,

Inc., 797 F.2d 869, 872 (10th Cir. 1986); see also Pub.

Serv. Co. of N.M. v. Barboan, 857 F.3d 1101, 1113–14

(10th Cir. 2017) (“When the applicant and an existing

party share an identical legal objective, we presume

that the party’s representation is adequate.”). But

where the purportedly adequate representative of the

proposed intervenor’s interest is a governmental

entity, “this presumption [can be] rebutted by the fact

that the public interest the government is obligated to

represent may differ from the would-be intervenor’s

App. 26

particular interest.” Utah Ass’n of Ctys., 255 F.3d at

1255.

Illustrative is WildEarth Guardians v. United

States Forest Service, a case in which we allowed a coal

company to intervene over an environmental group’s

opposition. 573 F.3d 992, 994–97 (10th Cir. 2009). The

environmental group had argued that the United

States and the coal company both advocated for

affirming an agency’s decision to allow venting of

methane gas from a mine. Id. at 994, 996. From this

shared objective, the environmental group argued that

the government adequately represented the company’s

interest. Id. We allowed intervention, noting that “the

government has multiple objectives and could well

decide to embrace some of the environmental goals”

that the company opposed. Id. at 997. Also illustrative

is Utah Association of Counties, where we allowed an

environmental group to intervene as of right in a suit

challenging the legality of the creation of the Grand

Staircase-Escalante National Monument. 255 F.3d at

1255–56. There, the Utah Association of Counties opposed intervention, arguing that the government and

the environmental group shared identical interests in

sustaining the monument. Id. We rejected this

argument, explaining that “[i]n litigating on behalf of

the general public, the government is obligated to

consider a broad spectrum of views, many of which

may conflict with the particular interest of the wouldbe intervenor.” Id. at 1256. The reasoning of these cases

supports SUWA’s intervention in the present case.

App. 27

Here, the parties agree that the only remaining

issue in the district court is the scope of three roads. In

deciding scope, the district court must determine

whether it is reasonable and necessary to widen the

roads to “meet the exigencies of increased travel . . . in

the light of traditional uses to which the right-of-way

was put.” Kane Cty. II, 772 F.3d at 1223 (emphasis

omitted) (quoting Hodel, 848 F.2d at 1083). SUWA

wants the narrowest roads allowed. We must decide

whether SUWA has met its minimal burden of

establishing that the United States may not

adequately represent this interest.

Relying on the above cases, SUWA first argues

that its interests are not identical to those of the

United States. In that circumstance, we do not apply a

presumption of adequate representation. More specifically, SUWA points to the broader interests the United

States must consider beyond seeking the narrowest

scope of the rights-of-way.

In addition, as it did in the district court, SUWA

argues that unlike a title determination, the scope

issues in the district court are not a binary choice.

Indeed, the title issues—Kane County’s and the State

of Utah’s rights-of-way—are now established, and not

contested on appeal. Instead, the intervenors seek to

participate in the limited issue on which we

remanded—the scope of the three remaining roads. In

contrast, the Appellees contend that the United States’

interests are identical to SUWA’s, arguing that this is

merely a “case about title,” and that the United States’

only interest is to advocate for the narrowest scope of

App. 28

the roads. United States’ Resp. Br. at 13–14, 17–19, 21,

31, 38; State of Utah’s Resp. Br. at 12–16. We agree

with SUWA.

In San Juan County, four judges expressly viewed

title and scope as separate determinations, observing

that the question of title is a “binary” determination,

while scope is much more “nuanced.” 503 F.3d at 1228

(Ebel, J., concurring in part, and dissenting in part).

We now adopt this reasoning. We read the lead opinion

the same way, as it noted that the United States’ single

objective was to defend “exclusive title."21 See id. at

1206 (Opinion of Hartz, J.); see also id. at 1228 (Ebel,

J., concurring in part, and dissenting in part) (quoting

lead opinion that “[s]hould it be determined that the

State or the County does hold a valid R.S. 2477 right

of way, the closure of Salt Creek Road to vehicular

traffic will be revisited to insure that it is consistent

with the rights associated with such a right-of-way”)

(alterations omitted) (emphasis in original).

We agree with the district court that “scope is

inherent in the quiet title process.” Kane Cty., 2018 WL

3999575, at *3. After all, a right-of-way must have a

scope. But the district court must determine title and

scope in separate steps. The district court itself

recognized this in its 2011 summary-judgment order

quieting title on many of the roads, while “reserv[ing]

for trial the scope of the rights-of-way.” See Kane Cty.,

2013 WL 1180764, at *3. Similarly, in Kane County II,

21

Neither Judge Kelly’s nor Judge McConnell’s concurrence

takes a position on the question of scope.

App. 29

we remanded for the district court to re-examine the

scope of three rights-of-way, leaving its title determination on those rights-of-way undisturbed. Kane

Cty. II, 772 F.3d at 1225. In other words, even upon

deciding the R.S. 2477 title issue on the rights-of-way,

the district court still needed to decide under Utah law

whether Kane County and the State of Utah were

entitled to widen the scope of the rights-of-way beyond

the beaten path existing before October 21, 1976, when

R.S. 2477 was repealed. See Hodel, 848 F.2d at 1083.

As more fully explained below, though SUWA and the

United States had identical interests in the title

determination, they do not on scope.

For a proposed intervenor to establish inadequate

representation by a representative party, “the possibility of divergence of interest need not be great,” Nat.

Res. Def. Council, 578 F.2d at 1346, and this showing

“is easily made” when the representative party is the

government, Utah Ass’n of Ctys., 255 F.3d at 1254.

SUWA’s goal is to limit as much as possible the number

of vehicles on the roads, but the United States’

objectives “involve a much broader range of interests,

including competing policy, economic, political, legal,

and environmental factors."22 See San Juan Cty., 503

22

The Appellees argue that SUWA waived this argument,

citing to our decision in Kane County I. But we merely deemed the

argument waived “for purposes of th[at] appeal.” Kane Cty. I, 597

F.3d at 1135. This is a new appeal. Scope was not yet at issue in

Kane County I, because title was yet to be decided. Moreover,

unlike nine years ago, when SUWA first raised scope “upon

questioning at oral argument,” see id., the Appellees have now

been afforded a full opportunity to brief the issue in this appeal.

App. 30

F.3d at 1229 (Ebel, J., concurring in part, and

dissenting in part) (citing 16 U.S.C. §§ 1, 1a-1, 271d).

The Appellees contend that this is merely a case about

property rights. But when that property is public land,

public interests are involved. See Block, 461 U.S. at

284–85, 290, 103 S.Ct. 1811 (noting that the Quiet Title

Act “was necessary for protection of national public

interests”). And “the government’s representation of

the public interest generally cannot be assumed to be

identical to the individual parochial interest of a

particular member of the public merely because both

entities occupy the same posture in the litigation.”

Utah Ass’n of Ctys., 255 F.3d at 1255–56. Indeed, “[w]e

have repeatedly pointed out that in such a situation

the government’s prospective task of protecting ‘not

only the interest of the public but also the private

interest of the petitioners in intervention’ is ‘on its face

impossible’ and creates the kind of conflict that

‘satisfies the minimal burden of showing inadequacy of

representation.’ ” Utahns for Better Transp. v. U.S.

Dep’t of Transp., 295 F.3d 1111, 1117 (10th Cir. 2002)

(quoting Nat’l Farm Lines v. I.C.C., 564 F.2d 381, 384

(10th Cir. 1977)).

SUWA is focused on pursuing the narrowest scope,

but many of the stakeholders involved may want wider

See Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d

814, 838 (10th Cir. 2014) (exercising our discretion to consider a

waived issue because the parties had an opportunity to brief the

issue and because it was “sufficiently substantial and important

to demand our attention”). We thus see no unfairness to the

Appellees in considering this “substantial and important” issue.

See id.

App. 31

roads. The United States represents these broadranging and competing interests, too. See San Juan

Cty., 503 F.3d at 1230 (Ebel, J., concurring in part, and

dissenting in part) (“[E]ven in this quiet title action,

the United States is representing multiple interests.”).

Indeed, even if the United States is advocating “as well

as can be expected” for the narrowest scope of the

roads, its conflicting interests render its representation inadequate. See Trbovich, 404 U.S. at 538–39, 92

S.Ct. 630 (finding the Secretary of Labor to be an

inadequate representative of a union member who

sought to set aside the results of a union-officer

election, because the Secretary had a statutory “duty

to serve two distinct interests, which are related, but

not identical”); see also Zinke, 877 F.3d at 1168 (“[T]he

government cannot adequately represent the interests

of a private intervenor and the interests of the public.”)

(emphasis in original); Coal. of Ariz./N.M. Ctys., 100

F.3d at 845 (“[The government] must represent the

public interest, which may differ from [the intervenor’s] particular interest.”); WildEarth Guardians,

573 F.3d at 997 (noting that the “government ha[d]

multiple objectives and could well decide to embrace”

some goals that the intervenor opposed).

In addition to the public interest, the United

States must consider internal interests, such as the

efficient administration of its own litigation resources.

When pressed at oral argument about whether it was

seeking a reviewable judicial order in this case, the

United States responded that it “ha[s] 12,000 of these

claims statewide” and is “interested in trying to resolve

App. 32

them as quickly and efficiently as [it] can,” see Oral

Argument at 24:30, an interest that SUWA certainly

doesn’t share.23 Moreover, the United States opposes

SUWA’s intervention motion—further indicating that

it may not adequately represent SUWA’s interests

here. See San Juan Cty., 503 F.3d at 1230 (Ebel, J.,

concurring in part, and dissenting in part) (“[T]he fact

that the United States has opposed SUWA’s

intervention in this action suggests that the United

States does not intend fully to represent SUWA’s

interests.”); cf. WildEarth Guardians, 573 F.3d at 997

(finding inadequate representation, in part, because

the representative party, while taking no position on

intervention, objected to the idea that it be required to

“coordinate filings with” the intervenor); Utah Ass’n of

Ctys., 255 F.3d at 1256 (“The government has taken no

position on the motion to intervene in this case. Its

silence on any intent to defend the intervenors’ special

interests is deafening.”) (internal quotations and

alterations omitted).

Given these conflicting interests, we conclude that

SUWA’s and the United States’ interests are not

identical. See Utah Ass’n of Ctys., 255 F.3d at 1255.

Therefore, no presumption of adequate representation

applies. See id.

Moreover, even if such a presumption were to

apply, we would conclude that SUWA has rebutted it.

23

An order approving a settlement agreement would be

reviewable only for an abuse of discretion. United States v.

Hardage, 982 F.2d 1491, 1495 (10th Cir. 1993).

App. 33

Our court has recognized that a “change in [presidential a]dministration raises ‘the possibility of divergence of interest’ or a ‘shift’ during litigation.” Zinke,

877 F.3d at 1169 (quoting WildEarth Guardians, 573

F.3d at 996–97). Here, the first significant docket

activity after the new administration came into office

was a motion in September 2017 to stay the case to

allow settlement discussions to resolve the remaining

issues. Though settlement negotiations, standing alone,

are not dispositive, see Sanguine, 736 F.2d at 1419, the

circumstances here suffice to satisfy the minimal

burden to show inadequate representation. We

rendered our decision in 2014 and issued the mandate

in February 2015, yet, the United States showed no

willingness to settle the case until two and half years

later, or six months after the new administration

inherited the litigation. See E.P.A. v. City of Green

Forest, Ark., 921 F.2d 1394, 1401 (8th Cir. 1990)

(reversing the denial of a second motion to intervene

because “[a]lthough the [movants] had expressed

concerns about possible settlement sixteen months

earlier, the settlement possibility [at that time] was

merely inchoate”). The United States points to its past

litigation conduct in this case, such as its successful

appeal in Kane County II, as evidence that it has no

intention of “capitulat[ing].” United States’ Resp. Br. at

9, 15, 24, 26–27, 32. But the Kane County II appeal was

litigated by the previous administration. See Utah

Ass’n of Ctys., 255 F.3d at 1256 (noting that “the

government’s past conduct” in litigation is not strong

evidence of adequacy because “it is not realistic to

assume that the agency’s programs will remain static

App. 34

or unaffected by unanticipated policy shifts”) (quoting

Kleissler v. U.S. Forest Serv., 157 F.3d 964, 974 (3d Cir.

1998)). Moreover, SUWA cites statements from parties

involved in the litigation that further support the

notion that the new administration may be more

inclined to settle.24

Significantly, although SUWA will not be entitled

to veto any settlement agreement between the United

States and the plaintiffs, see Local No. 93, Int’l Ass’n of

Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478

U.S. 501, 529, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986),

any settlement will require court approval. See Fed. R.

Civ. P. 41(a) (after an “opposing party serves either an

answer or a motion for summary judgment,” the action

may be dismissed “only by court order, on terms that

the court considers proper”); United States v. Colorado,

937 F.2d 505, 509 (10th Cir. 1991) (“[T]he district court

must ensure that the agreement is not illegal, a

product of collusion, or against the public interest.”).

24

SUWA cites a State of Utah attorney’s testimony before a

legislative committee in 2014, stating that “the federal government has taken the position that the only way we get an R.S.

2477 road is if a court orders it.” See Utah State Legislature,

Meeting of the Natural Resources, Agricultural, and Environmental Quality Appropriations Subcommittee, Public Lands

Office: RS 2477 Efforts and Results (Sept. 18, 2014), available at

http://utahlegislature.granicus.com/MediaPlayer.php?view_id=2&

clip_id=17764. Consistent with this testimony, SUWA also cites a

memo from a regional BLM director to the Acting BLM Solicitor,

which states that although settlement negotiations with the

previous administration had “broke[n] down,” the parties agreed

in April 2017 “to begin a dialogue to explore potential resolutions

to the R.S. 2477 issue[s in Utah] under th[e new] administration.”

Appellant’s App. vol. 1 at 133–34, 292–93.

App. 35

And SUWA will be “entitled to present evidence and

have its objections heard at the hearings on whether

to approve” such a settlement. See City of Cleveland,

478 U.S. at 529, 106 S.Ct. 3063. As an amicus, SUWA

would have no such rights.

In conclusion, given our court’s “relaxed” intervention requirements in “cases raising significant

public interests” such as this one, see San Juan Cty.,

503 F.3d at 1201, and our “liberal approach to

intervention,” see Zinke, 877 F.3d at 1164, we hold that

SUWA has satisfied its “minimal” burden of showing

that the United States may not adequately represent

its interests,25 see Nat. Res. Def. Council, 578 F.2d at

1345.

CONCLUSION

Consistent with this opinion, we reverse the

district court’s denial of SUWA’s motion to intervene.

25

SUWA also argues that the administration’s decision to

reduce by half the Grand Staircase-Escalante National Monument presents a basis to disbelieve that the United States will, in

fact, fight for the narrowest scope of the roads. As SUWA sees it,

if the administration is willing to rescind protections of a vast

expanse of land in the same area as the roads at issue, one could

reasonably infer that it may not vigorously fight for the smallest

scope of the roads. Because we find that SUWA has met its burden

without this evidence, we need not address this argument.

App. 36

TYMKOVICH, Chief Judge, dissenting.

Kane County and the State of Utah are engaged

in protracted litigation against the United States

under the Quiet Title Act. In 2008, the district court

denied the Southern Utah Wilderness Alliance’s first

attempt to intervene as of right under Federal Rule of

Civil Procedure 24(a), and this court affirmed that

judgment on appeal in 2010, finding the United States

adequately represented SUWA’s purported interest.

See Kane Cty. v. United States, 597 F.3d 1129 (10th Cir.

2010) (Kane Cty. I).

Today, however, this court reaches the opposite

conclusion. I respectfully dissent. In my view, SUWA

has not demonstrated a concrete injury giving it

standing to pursue a claim in federal court, nor can it

meet the requirements for mandatory intervention

under Rule 24.

I will first address our jurisdiction and explain

why I believe SUWA lacks standing to intervene, both

under Article III and under the third-party standing

doctrine. Then I will explain why, even if SUWA has

standing, the district court applied the correct

standard of review and did not err in denying

intervention.

A. Jurisdiction

“Standing is a threshold issue in every case before

a federal court.” Phila. Indem. Ins. Co. v. Lexington Ins.

Co., 845 F.3d 1330, 1334 (10th Cir. 2017). Our

App. 37

precedent is clear that a prospective intervenor must

possess Article III standing. United States v. Colo. & E.

R.R. Co., 882 F.3d 1264, 1269 (10th Cir. 2018); Safe

Streets All. v. Hickenlooper, 859 F.3d 865, 913 (10th Cir.

2017); see also Town of Chester v. Laroe Estates, Inc.,

___ U.S. ___, 137 S. Ct. 1645, 1651, 198 L.Ed.2d 64

(2017); Hollingsworth v. Perry, 570 U.S. 693, 704, 133

S.Ct. 2652, 186 L.Ed.2d 768 (2013).

Ensuring that every party before a federal court

possesses standing is essential because of the doctrine’s underpinnings in Article III of the Constitution,

which confines federal courts to adjudicating “cases”

and “controversies.” U.S. Const. art. III, § 2, cl. 1. The

doctrine also reflects “the separation-of-powers principles underlying that limitation.” Lexmark Int’l, Inc. v.

Static Control Components, Inc., 572 U.S. 118, 134

S. Ct. 1377, 1386, 188 L.Ed.2d 392 (2014). Entertaining parties that lack standing effectively disregards

the constitutional limits that circumscribe the power

of federal courts. This is because “an Article III case or

controversy joined by an intervenor who lacks standing ceases to be an Article III case or controversy.” See

N. Dakota ex rel. Stenehjem v. United States, 787 F.3d

918, 920 (8th Cir. 2015).

In prior cases involving SUWA, our circuit concluded that SUWA and other “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.” San Juan Cty. v. United

States, 503 F.3d 1163, 1172 (10th Cir. 2007) (en banc)

App. 38

(internal quotation marks omitted). But San Juan

County’s “piggyback standing” rule has since been

abrogated. In 2013, the Supreme Court held that “any

person invoking the power of a federal court must

demonstrate standing to do so,” Hollingsworth, 570

U.S. at 704, 133 S.Ct. 2652 (emphasis added), and

affirmed that a prerequisite to “intervene[ ] to defend”

one’s interest is “to assert an injury in fact of his own,”

id. at 708, 133 S.Ct. 2652. Three years later, the

Supreme Court unanimously affirmed “an intervenor

of right must have Article III standing in order to

pursue relief that is different from that which is sought

by a party with standing.” Town of Chester, 137 S. Ct.

at 1651.

The majority opinion here says SUWA seeks relief

identical to the United States because the government

has committed to “retention of the maximum amount

of property” and will argue for “the smallest widths [it]

can based on the historical evidence.” See op. at 887.

But this finding conflicts with the majority’s later

conclusion that the United States may not adequately

represent SUWA’s interests because “SUWA’s and the

United States’ interests are not identical,” id. at 895,

with respect to the scope of Kane County’s asserted

rights-of-way. See also id. at 895 (“SUWA is focused on

pursuing the narrowest scope [of road width], but

many of the stakeholders involved may want wider

roads. The Unites States represents these broadranging and competing interests, too.”). If SUWA seeks

identical relief to the United States—that is, federal

retention of the maximum amount of property—then

App. 39

the United States provides adequate representation of

SUWA’s interests, as we acknowledged in Kane County

I. If SUWA seeks relief different from the United

States—because the government does not, in fact, wish

to retain maximum property—then SUWA must

demonstrate that it possess standing according to

Town of Chester.1

This circuit has recognized the Supreme Court’s

abrogation of San Juan County’s piggyback rule for

intervenor standing in several published opinions,

regardless of whether the remedy sought is identical.

In Safe Streets Alliance, we affirmed that “Rule 24(a)’s

provisions cannot remove the Article III hurdle that

anyone faces when voluntarily seeking to enter a

federal court.” 859 F.3d at 912. We also recognized

“[t]he Supreme Court has held, moreover, that Article

III’s requirements apply to all intervenors, whether

they intervene to assert a claim or defend an interest.”

Id. (emphasis added). We reaffirmed that principle

again last year: “Any party, whether original or

intervening, that seeks relief from a federal court must

1

Perhaps the tension in the majority opinion might dissipate

if this were a case in which the government had to balance various

private and public interests. But because a Quiet Title Act suit is

not such a dispute, the situation here is unlike Pennsylvania v.

President United States of America, 888 F.3d 52, 59 (3d Cir. 2018),

or the other Administrative Procedure Act cases cited by the

majority. This is explained in greater detail in Section B.2. In fact,

the present suit resembles the case President distinguished, in

which the proposed intervenor “share[d] the same objective as the

United States” and “[a]ny differences” were “merely differences in

strategy.” United States v. Territory of the Virgin Islands, 748

F.3d 514, 522 (3d Cir. 2014).

App. 40

have standing to pursue its claims.” United States v.

Colo. & E. R.R. Co., 882 F.3d 1264, 1269 (10th Cir. 2018)

(quoting City of Colo. Springs v. Climax Molybdenum

Co., 587 F.3d 1071, 1078 (10th Cir. 2009)) (emphasis

added).

Despite SUWA’s assertions to the contrary, our

precedent shows SUWA must demonstrate it possesses

independent Article III standing to intervene in this

litigation. Nevertheless, the majority opines that

SUWA need not establish independent standing so

long as the United States remains a party. This

conclusion is, in my view, a return to the abrogated

reasoning of San Juan County in violation of clear,

binding precedent.

The majority goes on to say that, in any case,

SUWA has established standing. Our Article III and

third-party standing doctrines indicate otherwise.

1.

Constitutional Standing

To establish Article III standing, an intervenor

must first demonstrate “an ‘injury in fact’—an invasion

of a legally protected interest which is (a) concrete and

particularized, and (b) actual or imminent, not

conjectural or hypothetical.” Lujan v. Defs. of Wildlife,

504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351

(1992) (cleaned up). “Second, there must be a causal

connection between the injury and the conduct

complained of—the injury has to be fairly traceable to

the challenged action of the defendant, and not the

result of the independent action of some third party

App. 41

not before the court.” Id. (cleaned up). “Third, it must

be ‘likely,’ as opposed to merely ‘speculative,’ that the

injury will be redressed by a favorable decision.” Id. at

561, 112 S.Ct. 2130 (some internal quotation marks

omitted).

An organization such as SUWA may assert

associational standing if “(a) its members would

otherwise have standing to sue in their own right; (b)

the interests it seeks to protect are germane to the

organization’s purpose; and (c) neither the claim

asserted nor the relief requested requires the

participation of individual members in the lawsuit.”

Collins v. Daniels, 916 F.3d 1302, 1312 (10th Cir. 2019).

SUWA asserts its environmental concern is “a

legally protectable interest” for purposes of Article III

standing. San Juan Cty., 503 F.3d at 1199. SUWA

reasons that a wider right-of-way determination would

lead Kane County to permit greater vehicular traffic,

which in turn would cause a concrete and particularized injury to its environmental interests, and that

this injury could be redressed by a successful defense

limiting the length and width of the roads.

An injury-in-fact must be both concrete and

particularized and actual or imminent. The asserted

injury cannot merely be speculative, however. The

“threatened injury must be certainly impending to

constitute injury in fact” and “allegations of possible

future injury are not sufficient.” Clapper v. Amnesty

Int’l USA, 568 U.S. 398, 409, 133 S.Ct. 1138, 185

L.Ed.2d 264 (2013) (cleaned up); see also Summers v.

App. 42

Earth Island Inst., 555 U.S. 488, 499, 129 S.Ct. 1142,

173 L.Ed.2d 1 (2009).

SUWA is correct that environmental interests,

such as “the desire to use or observe an animal species,

even for purely esthetic purposes, is undeniably a

cognizable interest for purpose of standing.” Lujan, 504

U.S. at 562–63, 112 S.Ct. 2130; see also S. Utah

Wilderness All. v. Palma, 707 F.3d 1143, 1155–56 (10th

Cir. 2013) (holding SUWA’s environmental interests

sufficiently concrete and particularized to challenge

drilling leaseholds). But SUWA merely conjectures

that (1) the United States will not zealously defend its

title to the relevant roads, (2) the title adjudication will

thus lead to an appreciably different outcome

regarding pre-1976 uses, (3) this appreciable difference

will lead Kane County to open the relevant roads to

greater vehicular traffic than it would have otherwise,

and finally (4) the greater vehicular traffic will, at the

margin, cause aesthetic environmental injury to

SUWA members who may return to the particular

areas in the future.

As was the case in Clapper, the path leading to

SUWA’s asserted injury is too attenuated to establish

Article III standing. This chain of events relies on a

patchwork of assumptions and possibilities resulting

from the decisions of multiple actors, each with its own

interests and institutional checks. A proposed party

cannot rely on mere “speculation” that its members

who have visited the relevant environmental locale

“will find their recreation burdened” in the future due

to an uncertain chain of events. Earth Island, 555 U.S.

App. 43

at 499, 129 S.Ct. 1142. Similarly, in Palma we

dismissed SUWA’s administrative challenge to BLM

drilling permits as unripe for judicial review because

“[t]here [was] simply too much uncertainty as to when

and what type of drilling, if any, [would] occur on the

thirty-nine contested leases.” 707 F.3d at 1160.

For these reasons, I would find SUWA’s alleged

injury is not an imminent injury-in-fact for purposes of

Article III standing.

2. Third-Party Standing

Even if SUWA could assert constitutional

standing, it would lack standing under the third-party

standing doctrine. “[A] party generally must assert his

own legal rights and interests, and cannot rest his

claim to relief on the legal rights or interests of third

parties.” Kowalski v. Tesmer, 543 U.S. 125, 129, 125

S.Ct. 564, 160 L.Ed.2d 519 (2004) (internal quotation

marks omitted); see also Collins, 916 F.3d at 1312–13.

An exception to this rule may apply when “the

party asserting the right has a close relationship with

the person who possesses the right [and] there is a

hindrance to the possessor’s ability to protect his own

interests.” Sessions v. Morales-Santana, ___ U.S. ___,

137 S. Ct. 1678, 1689, 198 L.Ed.2d 150 (2017). That

exception does not apply here. SUWA has no special

relationship with the United States and there is no

barrier preventing the United States from asserting its

right to title.

App. 44

This court previously applied the third-party

standing rule to hold SUWA lacked prudential

standing “to vindicate the property rights of the federal

government” in a nearly identical quiet title action.

Wilderness Soc’y v. Kane Cty., 632 F.3d 1162, 1165

(10th Cir. 2011) (en banc). In that case, we found

SUWA improperly “rest[ed] its claims on the federal

government’s property rights” and failed to “assert a

valid right to relief of its own.” Id. at 1170. Even the

dissent recognized that, if the statutory cause of action

properly belonged to the United States, SUWA might

not have standing. See id. at 1189–90 (Lucero, J.,

dissenting) (emphasizing the claim-focused nature of

prudential standing and distinguishing Warth v.

Seldin, 422 U.S. 490, 509–10, 95 S.Ct. 2197, 45 L.Ed.2d

343 (1975)).2

After Wilderness Society, the Supreme Court

substantially narrowed the category of prudential

standing. See Lexmark, 572 U.S. 118, 134 S.Ct. 1377,

188 L.Ed.2d 392. The Court did not, however, revisit

the doctrine of third-party standing. See id. at 127 n.3,

134 S.Ct. 1377 (“This case does not present any issue

of third-party standing, and consideration of that

doctrine’s proper place in the standing firmament can

2

In Wilderness Society, SUWA relied on an implied cause of

action under the Supremacy Clause of the Constitution—a cause

of action which is no longer recognized, see Armstrong v.

Exceptional Child Ctr., Inc., ___ U.S. ___, 135 S. Ct. 1378, 1383–

84, 191 L.Ed.2d 471 (2015), but which at the time could be

asserted by anyone. This is unlike a cause of action under the

Quiet Title Act, which may be raised only by a party asserting

title or interest in federally claimed land.

App. 45

await another day.”). The Supreme Court noted the

third-party standing rule is “closely related to the

question whether a person in the litigant’s position will

have a right of action on the claim.” Id. (internal

quotation marks omitted).3

Because Lexmark did not eliminate the thirdparty standing rule, our determination in Wilderness

Society remains sound. Indeed, in light of Lexmark, its

logic appears even stronger in this case. The only issue

on remand from the 2014 appeal is the length and

width of Kane County’s easements. An organization in

SUWA’s position does not possess a cause of action

under the Quiet Title Act because it does not assert

title to the roads. See 28 U.S.C. § 2409a(a), (d). The

cause of action properly belongs to Kane County and

Utah, because they do assert title. Even if we assume

SUWA will certainly suffer environmental injury, “that

doesn’t necessarily demonstrate that [it] has prudential standing to bring its . . . claims.” VR Acquisitions,

LLC v. Wasatch Cty., 853 F.3d 1142, 1147 (10th Cir.

2017); see also Hornish v. King Cty., 899 F.3d 680, 692

3

Third-party standing has been traditionally considered as

falling within the realm of “prudential standing.” See Elk Grove

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12, 124 S.Ct. 2301, 159

L.Ed.2d 98 (2004). But Lexmark casts doubt on this categorization

and suggests the notion of “prudential standing” is in “tension”

with the “virtually unflagging” duty of federal courts to “hear and

decide cases within its jurisdiction,” id. at 126, 134 S. Ct. 1377,

1386 (internal quotation marks omitted). It may be that the thirdparty standing rule, with its close connection to a party’s right of

action on a claim, should be considered as an aspect of Article III

standing or as a merits ruling concerning the scope of the

substantive right asserted.

App. 46

(9th Cir. 2018) (finding a party that possesses “no

property interests” in disputed land “cannot allege any

injury to such interests, and therefore lack[s] standing”

in a quiet title action).

Because SUWA’s claim to relief rests “on the legal

rights or interests of third parties,” Kowalski, 543 U.S.

at 129, 125 S.Ct. 564, I would also find SUWA lacks

standing under the third-party standing doctrine.

B. Intervention

Even if SUWA possessed standing to intervene,

the district court did not abuse its discretion in

determining SUWA fails to satisfy the Rule 24

requirements. Under Rule 24, an applicant may timely

intervene as of right if it

claims an interest relating to the property or

transaction that is the subject of the action,

and is so situated that disposing of the action

may as a practical matter impair or impede

the movant’s ability to protect its interest,

unless existing parties adequately represent

that interest.

Fed. R. Civ. P. 24(a)(2). SUWA alleges it has an interest

related to the property that may be impaired in the

litigation and the United States may not adequately

represent its interest.

App. 47

1. Standard of Review

“We review the district court’s denial of a motion

for reconsideration for abuse of discretion.” United

States v. Randall, 666 F.3d 1238, 1241 (10th Cir. 2011).

“Grounds warranting a motion to reconsider include

(1) an intervening change in the controlling law, (2)

new evidence previously unavailable, and (3) the need

to correct clear error or prevent manifest injustice.”

Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th

Cir. 2000). “It is not appropriate to revisit issues

already addressed or advance arguments that could

have been raised in prior briefing.” Id.

SUWA argues the district court improperly

characterized its filing as a motion to reconsider, and

that we should treat its motion as one to intervene. The

majority agrees and proceeds to analyze the Rule 24

requirements of interest, impairment, and adequate

representation de novo, relying on City of Colorado

Springs v. Climax Molybdenum, Co., 587 F.3d 1071,

1078 (10th Cir. 2009). But Climax does not analyze

why the standard of review should be de novo in such

a case—though presumably it was because the issue

was not raised or even considered by the court. In any

event, its statement that the standard of review would

be de novo is pure dicta because the court never

reached the merits. And this court’s assurances in San

Juan County and Kane County I that SUWA could

always renew its motion to intervene at a later date

said nothing about what the proper standard of review

would be in such an instance.

App. 48

On the contrary, successive motions for intervention in the same case are frequently treated as

motions to reconsider. See, e.g., Abeyta v. City of

Albuquerque, 664 F.3d 792, 796 (10th Cir. 2011) (a

second motion to intervene is, in effect, a motion to

reconsider); Plain v. Murphy Family Farms, 296 F.3d

975, 978 (10th Cir. 2002) (same); see also Whitewood v.

Sec’y Pa. Dep’t of Health, 621 F. App’x 141, 144 (3d Cir.

2015) (unpublished) (finding a successive motion for

intervention was properly treated as a motion for

reconsideration); Calvert Fire Ins. Co. v. Environs Dev.

Corp., 601 F.2d 851, 857 (5th Cir. 1979) (same).

This result is rooted in the law-of-the-case doctrine and the mandate rule. See Huffman v. Saul

Holdings Ltd. P’ship, 262 F.3d 1128, 1132–33 (10th Cir.

2001); see also Ransmeier v. Mariani, 486 F. App’x 890,

892 (2d Cir. 2012) (treating a successive motion to

intervene as foreclosed by the law of the case). This is

because once “a case is appealed and remanded, the

decision of the appellate court establishes the law of

the case and ordinarily will be followed by both the

trial court on remand and the appellate court in any

subsequent appeal.” Huffman, 262 F.3d at 1132. A

district court may deviate from the law-of-the-case

doctrine and mandate rule when one of the Paraclete

circumstances is present: (1) a dramatic change in

legal authority, (2) significant new evidence unobtainable earlier, or (3) blatant error resulting in manifest

injustice. See id at 1133. And of course, such

circumstances are the same as those justifying a

App. 49

motion to reconsider, which is reviewed for abuse of

discretion.

Furthermore, as the majority acknowledges,

SUWA based its renewed motion for intervention on

changed circumstances—namely a new legal and

political landscape. See App. 119. SUWA’s reliance on

an intervening change of law or fact tracks the test for

a motion to reconsider, not a motion to intervene. See

Paraclete, 204 F.3d at 1012; see also F.W. Kerr Chem.

Co. v. Crandall Assoc., Inc., 815 F.2d 426, 428 (6th Cir.

1987) (“[A] successive motion [must] state new facts

warranting reconsideration of the prior decision.”).

In summary, I would apply the abuse of discretion

standard to evaluate whether the district court

properly denied SUWA’s successive motion to

intervene. That standard is more consistent with the

law-of-the-case doctrine and more suitable to SUWA’s

changed-circumstance arguments.

2. Impaired Interest

SUWA argues intervention is proper because it

has an environmental interest relating to wilderness

lands and resources that are crossed by or adjacent to

the three disputed roads. It asserts the district court

erred in finding no changed circumstances under

which the court should revisit its prior ruling on

SUWA’s impaired interest related to the roads.

This court applies a fact-specific inquiry to

determine whether a proposed intervenor possesses an

App. 50

interest satisfying the requirements of Rule 24(a)(2)

and (3). San Juan Cty., 503 F.3d at 1199. The district

court employed this method when it ruled on SUWA’s

first motion to intervene. See Kane Cty. v. United

States, No. 2:08-CV-315, 2009 WL 959804 (D. Utah Apr.

6, 2009). There, the district court noted the “factual

underpinnings of continuing controversy” that existed

in San Juan County did not exist in the instant case.

Id. at *2. It also observed title was the only issue in

dispute, not the management of adjacent lands or

whether the roads would be open to the public once

title is ascertained. Id. On appeal in 2010, we declined

to decide whether “SUWA has an interest in the quiet

title proceedings at issue.” Kane Cty. I, 597 F.3d at

1133.

We have previously said “Rule 24(a)(2) does not

speak of ‘an interest in the property’; rather, it requires

only that the applicant for intervention ‘claim[ ] an

interest relating to the property or transaction which

is the subject of the action.” San Juan Cty., 503 F.3d at

1200 (quoting Fed. R. Civ. P. 24(a)(2) (emphasis added).

Indeed, in San Juan County, we applied a fact-specific

inquiry to conclude “SUWA’s environmental concern

[was] a legally protectable interest” related to the

specific lands at issue in that case. Id. at 1199.3 In Kane

3

Six judges disagreed. They explained in two separate

concurrences that there “can be no logical or causal connection

between the interest in land use asserted by SUWA and the

dispute over land ownership in this case; a mere change in

ownership will have no practical effect on the land’s use, just as a

change in the land’s use would not affect the ownership” of the

roads. San Juan Cty., 503 F.3d at 1208 (Kelly, J., concurring in

App. 51

County I, however, we acknowledged “San Juan

County does not mandate a particular outcome in this

case,” given the fact-dependent nature of the inquiry.

597 F.3d at 1134.

Now that the issue is before us once again, I would

conclude the district court reasonably determined the

applicable law and issues on partial remand were the

same as they were when the district court rendered its

initial decision on SUWA’s motion to intervene. Thus,

in my view, the district court did not abuse its

discretion in denying SUWA’s motion to reconsider.

SUWA relies on Utah Association of Counties v.

Clinton, 255 F.3d 1246 (10th Cir. 2001), to argue that

anything but the narrowest title determination will

impair its environmental interest, and the court

appears to adopt this reasoning, see op. at 891–92. But

unlike Utah Association of Counties, which involved

the designation of a national monument and necessarily required balancing competing perspectives of

the public interest, see 255 F.3d at 1248, this action

simply addresses title. Quieting title does not bring

any new rights into existence or require evaluation of

the public interest, it merely clarifies already existing

the judgment) (internal quotation marks omitted). In short, “it is

hard to see how SUWA . . . can be considered a party to the

question of what real property the United States owns, or

whether the United States granted an easement to [the County]

decades ago.” Id. at 1210 (McConnell, J., concurring in the

judgment).

App. 52

property rights based on historical uses.4 See Stenehjem,

787 F.3d at 921. The district court’s final determination

of title does not change land management or status.

More importantly, the question on partial remand is

even narrower than it was the last time the district

court denied intervention: title to the easements has

been ascertained and only the length and width of

those easements is now in question. That inquiry turns

only on pre-1976 use and does not require evaluation

of competing public interests.

Because no intervening change of fact or law with

respect to SUWA’s alleged interest compels a different

result, the district court did not abuse its discretion in

declining to reconsider SUWA’s motion for intervention. The district court’s decision does not prevent

SUWA from presenting its environmental concerns as

amicus, nor does it preclude SUWA from asserting its

alleged interests through other lawsuits or administrative challenges to federal use or management of

lands adjoining the road easements.

3. Adequate Representation

We presume adequate representation “when the

objective of the applicant for intervention is identical

to that of one of the parties.” San Juan Cty., 503 F.3d

4

By statute, national monuments and wilderness study

areas are expressly “subject to valid existing rights.” Pub. L. No.

94–579, § 701(h), 90 Stat. 2743, 2786; accord 43 U.S.C. § 1782(c)

(providing the Secretary must manage wilderness study areas

“subject . . . to the continuation of existing . . . uses”).

App. 53

at 1204. This presumption applies “when the government is a party pursuing a single objective.” Id. The

majority opines that, like WildEarth Guardians v.

United States Forest Service, 573 F.3d 992, 994–97

(10th Cir. 2009), and Utah Association of Counties, the

presumption of adequate representation does not

apply because the government has multiple objectives

and must consider a broad spectrum of views. But as I

have already noted, this action simply addresses title.

Although a shift in government policy may be enough

to upset the presumption of adequate representation

in an Administrative Procedure Act challenge, such as

in WildEarth or Utah Association of Counties, it is

difficult to see how it could be enough in a Quiet Title

Act action that turns solely on pre-1976 use and does

not involve any question of land-use or management

policy. WildEarth itself said as much when it distinguished San Juan County: “We were not informed of

any potential federal policy that could be advanced by

the government’s relinquishing its claim of title to the

road.” 573 F.3d at 997.

The last time this court considered SUWA’s

motion to intervene in this litigation, it held SUWA

had failed to carry its minimal burden of demonstrating inadequate representation. We observed that

“SUWA’s disagreement with the United States’ land

management decisions in the past does not

demonstrate that the United States is an inadequate

representative in this title dispute, which is ultimately

grounded in non-federal activities that predate those

management decisions.” Kane Cty. I, 597 F.3d at 1135.

App. 54

Furthermore, we noted SUWA had waived the

argument “that SUWA and the United States might

disagree as to the potential scope of Kane County’s

purported rights-of-way.” Id. Today, the majority resurrects an argument we ruled dead-on-arrival in Kane

County I and essentially offers SUWA a second chance

to cure its waiver.

SUWA emphasizes two circumstances it says have

changed since the courts last considered its motion to

intervene: (1) the change in presidential administration, and (2) the length and width of the three

rights-of-way is now squarely presented to the district

court and may be settled by the parties.

With respect to the first circumstance, SUWA

extensively relates how the current presidential

administration and BLM’s approach to wilderness

protection differs from that of their predecessors and

explains the adversarial relations between itself and

the new administration. This argument is nearly identical, as the government points out, to the argument

SUWA raised and we rejected in the previous appeal—

namely, that SUWA’s “history of adversarial relations

between itself and [federal defendants]” is inconsistent

with adequate representation. Id. at 1134.

Moreover, SUWA’s perceived disagreements with

the current presidential administration or BLM over

land-management policy bears little relation to how

the United States will defend title to the roads

App. 55

themselves.5 In some cases—such as an APA suit

against federal land-management policy, in which the

government has multiple objectives and must balance

a variety of public and private interests—a change of

presidential administration can constitute a change in

circumstance justifying reconsideration of adequate

representation. See W. Energy All. v. Zinke, 877 F.3d

1157, 1169 (10th Cir. 2017). Indeed, all the cases the

majority cites are APA challenges of this sort. But a

change in presidential administration is not the sort of

relevant change that affects adjudication of title in a

Quiet Title Act action. Our decision in Zinke drew this

very distinction: “[T]he only issue in [Kane County is]

whether the defendant federal government or the

plaintiff county [holds] title to rights of way over

federal land, and [SUWA does] not claim to have

unique knowledge or experience that would assist the

BLM in defense of its title.” Id.

With respect to the second circumstance, we

recognized in Kane County I that SUWA waived the

5

Insofar as the administration’s land-management policies

have excluded parts of the relevant roads from the Grand

Staircase-Escalante National Monument, those policies can be

and have been challenged through the APA See, e.g., City of

Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1166

(9th Cir. 1997) (holding executive orders on land-use subject to

judicial review under the APA); Complaint for Declaratory and

Injunctive Relief, Grand Staircase Escalante Partners v. Trump,

No. 17–2591 (D.D.C. Dec. 4, 2017), 2017 WL 6033875. Such

policies cannot properly be challenged through intervention in a

Quiet Title Act action because reversing the United States’

decision to relinquish parts of the Monument is not a possible

remedy.

App. 56

argument that it might disagree with the United

States about the length or width of Kane County’s

rights-of-way. 597 F.3d at 1135. Even if we accepted

that argument, as the majority does, SUWA presents

no sufficient reason to doubt the United States will

continue to defend its title, apart from speculation

about settlement negotiations between the parties

that it would still be powerless to stop as an intervenor.

The only issue on remand turns exclusively “on the

historic use of these roads by the public for the period

required under Utah law prior to 1976.” Kane Cty., No.

2:08-CV-315, 2009 WL 959804, at *3. And that is not

an issue on which SUWA has “special expertise,

experience, or knowledge” that “would not be available

to the United States” in defending the scope of its title.

Id. Nor does SUWA provide persuasive argument that

the interests of the United States and SUWA, which

are presumed to align, diverge on answering that

historically bound question.

SUWA’s speculation that the United States will be

less than zealous to defend its title cannot explain (1)

why the United States has not settled this case two

years into the new presidential administration, (2)

why the parties did not request further stays to

continue negotiation after the stay expired last year, or

(3) why extensive discovery and depositions have

continued in other pending road disputes between the

parties. Nor can the majority opinion explain these

present circumstances.

In my view, the district court did not abuse its

discretion in concluding that SUWA’s position was

App. 57

based on speculation and “unsupported by any

evidence other than statements by the parties [in

2017] that settlement might be possible.” Kane Cty. v.

United States, No. 2:08-CV-315-CW, 2018 WL 3999575,

at *3 (D. Utah Aug. 21, 2018).

****

Because I believe SUWA lacks standing to

intervene and because the district court did not abuse

its discretion in denying SUWA’s motion to intervene

under Rule 24(a), I respectfully DISSENT.

App. 58

2018 WL 3999575

Only the Westlaw citation is currently available.

United States District Court, D. Utah.

KANE COUNTY, UTAH; and State of Utah, Plaintiff,

v.

UNITED STATES OF AMERICA, Defendant.

Case No. 2:08-cv-315-CW

|

Signed 08/21/2018

Attorneys and Law Firms

Chelsea J. Davis, Shawn T. Welch, Holland & Hart LLP,

Elizabeth B. Harris, Kathy A. F. Davis, Utah Attorney

Generals Office, Tamara L. Kapaloski, Dorsey & Whitney LLP, Salt Lake City, UT, Ryan R. Jibson, Browning,

Morgan, UT, William L. Bernard, Pueblo, CO, for

Plaintiff.

Anna K. Stimmel, US Department of Justice, San

Francisco, CA, John K. Mangum, US Attorney’s Office,

Salt Lake City, UT, Romney S. Philpott, Pro Hac Vice,

US Department of Justice, Denver, CO, Joanna K.

Brinkman, Pro Hac Vice, Joseph Hosu Kim, US Department of Justice, Washington, DC, for Defendant.

MEMORANDUM DECISION & ORDER

Clark Waddoups, United States District Judge

Before the court is movant Southern Utah Wilderness Alliance’s Motion to Intervene (ECF No. 298) and

Motion to Supplement Factual Record in Pending

Motion to Intervene as Defendants (ECF No. 320). The

App. 59

Motion to Intervene is fully briefed, the time to respond to the Motion to Supplement has passed without

response, and the parties have not requested oral

argument. Kane County, the State of Utah, and the

United States oppose intervention by SUWA. Having

considered the briefs, the Motion to Supplement, and

otherwise being fully informed, the court DENIES

SUWA’s Motion to Intervene for the reasons set forth

herein.

Background

SUWA first moved to intervene as a matter of

right in this action on November 26, 2008. (ECF No.

28.) After considering full briefing and oral argument,

the court denied that motion because “SUWA ha[d] not

established the element of having an impaired interest

in the litigation” and because SUWA “ha[d] failed to

show that its interest in this case are not adequately

represented by the United States.” (Intervention Order

4, ECF No. 71.) SUWA sought interlocutory appeal of

that decision (ECF No. 75), and the Tenth Circuit

affirmed this court’s denial of SUWA’s motion (Mandate of USCA, ECF No. 118). Without considering

“whether SUWA has an interest relating to the quiet

title claims alleged in Kane County’s first amended

complaint that may, as a practical matter, be impaired

or impeded by the disposition of the litigation,” the

Tenth Circuit concluded that “even assuming SUWA

has an interest, . . . SUWA has failed to establish that

the United States may not adequately represent

SUWA’s interest.” Kane County v. United States, 597

App. 60

F.3d 1129, 1133 (10th Cir. 2010). Therefore, the court

concluded SUWA was not entitled to intervene as of

right and affirmed this court. Id. at 1135-36.

After the Tenth Circuit ruled on intervention, this

court held a thirteen-day bench trial and issued

findings of fact and conclusions of law. (Final Order,

ECF No. 247.) This court quieted title to some, but not

all, of the roads Kane County had alleged. (Id.) The

parties appealed to the Tenth Circuit, which affirmed

in part and reversed in part and remanded for this

court to reconsider the scope of three roads. Kane

County v. United States of America, 772 F.3d 1205

(10th Cir. 2014). This court then ordered the parties to

file a status report informing the court whether further

fact finding is needed. (Status Order, ECF No. 293.)

The parties instead sought to stay the court’s order

because they were working toward resolution. (Motion

for Stay, ECF No. 294.) The parties eventually filed

separate status reports notifying the court that further

fact finding is necessary. (Kane’s Supplemental Brief

and Request for Further Findings of Fact and Conclusions of Law, ECF No. 315; United States of

America’s Response, ECF No. 318.) No one has since

filed anything with the court suggesting settlement is

likely. While the parties were discussing settlement

and filing their status reports, SUWA filed the instant

motions.

SUWA now argues it is entitled to intervene as a

matter of right because “the nature of this proceeding,

as well as the United States’ litigation position, have

both changed” since the previous intervention

App. 61

decisions by this court and the Tenth Circuit. (Motion

to Intervene 2, ECF No. 298.) Specifically, SUWA

contends “[t]he landscape has . . . changed significantly

since [it] last moved to intervene,” as a result of “the

recent change in administration and the fact that the

United States has entered into active settlement

discussions in this case” without including SUWA in

those discussions. (Motion to Intervene 1, ECF No. 22.)

SUWA also argues that the court should reconsider its

conclusion that SUWA has no impaired interest. (Id. at

2.) Each of the three parties to this litigation object to

SUWA’s Motion to Intervene.

Analysis

“Rule 24(a)(2) provides for intervention as of right

by anyone who in a timely motion ‘claims an interest

relating to the property or transaction that is the

subject of the action, and is so situated that disposing

of the action may as a practical matter impair or

impede the movant’s ability to protect its interest,

unless existing parties adequately represent that

interest.’ ” WildEarth Guardians v. U.S. Forest Serv.,

573 F.3d 992, 995 (10th Cir. 2009) (quoting Fed. R. Civ.

P. 24(a)(2)). Assuming without deciding that SUWA

timely filed its Motion to Intervene, the court denies

the Motion because SUWA has not presented

circumstances under which this court, exercising its

discretion, is compelled to revisit its prior ruling and

disregard the ruling of the Tenth Circuit.

App. 62

The district court has “general discretionary authority to review and revise [its] interlocutory rulings

prior to entry of final judgment.” Wagoner v. Wagoner,

938 F.2d 1120 n. (10th Cir. 1991); see also Fed. R. Civ.

P. 54(b). But because of the need for judicial economy,

the court need not reconsider every interlocutory

decision a party sees fit to challenge. Typically,

“ ‘[g]rounds warranting a motion to reconsider include

(1) an intervening change in the controlling law, (2)

new evidence previously unavailable, and (3) the need

to correct clear error or prevent manifest injustice.’ ”

Anderson Living Trust v. WPX Energy Prod., LLC, 308

F.R.D. 410, 427 (D. N.M. 2015) (quoting Servants of

Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)).

And of course, barring a showing of an exception to the

mandate rule, this court will follow the direction of the

Tenth Circuit. See Huffman v. Saul Holdings Ltd.

P’ship, 262 F.3d 1128, 1132-33 (10th Cir. 2001). SUWA’s

Motion to Intervene does not directly speak to this

court’s authority or discretion to revisit previously

decided matters. But in response to Kane County’s

opposition, which emphasizes SUWA’s repeated failed

efforts to intervene, SUWA points this court to San

Juan County in which the court contemplated that an

initial decision denying intervention “does not forever

foreclose . . . intervention” and invited SUWA, as the

would-be intervenor, to readdress the issue with the

court “[i]f developments after the original application

for intervention undermine the presumption that the

Federal Defendants will adequately represent [their]

interests.” 503 F.3d 1163, 1207 (10th Cir. 2007) (en

banc). (SUWA’s Reply 8, ECF No. 316.) Regardless,

App. 63

SUWA has not shown a change in circumstances that

would alter this court’s denial of intervention.

SUWA alleges that intervention is now proper

because it has an interest that could be impaired and

because the United States no longer represents its

interests. First, SUWA alleges intervention is now

proper despite the court’s prior order because under

San Juan County SUWA has an interest that may be

impaired by this litigation and because SUWA’s

interest in preserving the wilderness characteristic of

the lands surrounding the rights of way could be

impaired by “[a]ny scope settlement that is not tightly

correlated with reliable evidence as to pre-1976 uses

and widths.” (Motion to Intervene 8-10, ECF No. 298.)

Whether an interest that would satisfy the requirements of Rule 24(a)(2) and (3) exists is a fact specific

inquiry, see San Juan County, 503 F.3d at 1199, and

this court has previously distinguished the facts of the

relevant roads in Kane County from the road at issue

in San Juan County. On appeal, the Tenth Circuit did

not reach the impaired interest issue and instead

“[p]roceed[ed] directly to” the fourth element of Rule

24(a) and “conclude[d] that, even assuming SUWA has

an interest in the quiet title proceedings at issue” that

SUWA should not be permitted to intervene. Kane

County, 597 F.3d at 1133. This is hardly a decision on

the merits that should prompt this court to revisit its

prior decision.

And SUWA’s argument that the issue of scope is

distinct from the issue of title is unavailing. While a

minority of the en banc court in San Juan County

App. 64

indicated that, under the circumstances of that case,

scope may be viewed different than title for purposes

of the impaired interest analysis, the Tenth Circuit

made clear in its intervention decision in this case that

“San Juan County does not mandate a particular

outcome in this case.” 597 F.3d at 1134. In fact, scope

is inherent in the quiet title process because as a

practical matter the court cannot quiet title to an

undefined property. As such, this court decided issues

of scope in its quiet title decision. Therefore, where the

issues before the court and the applicable law are the

same as they were when the initial decision was

rendered, the court declines to revisit the question of

impaired interest. SUWA has not met its burden and

for this reason is not entitled to intervention as of

right.

Second, SUWA claims that the United States no

longer adequately represents its interests because the

issue in this litigation is no longer a binary question of

title but a multifaceted question of scope and because

the new administration has expressed willingness to

engage in settlement negotiations in this and other

R.S. 2477 cases. The court is unpersuaded by these

arguments. As discussed, scope is inherent in the issue

of quiet title and San Juan County does not mandate

the outcome of this case. Further, while scope can be

defined in multiple ways, there is no reason on this

record to believe the United States would advocate for

anything other than retention of the maximum

amount of property. In Western Energy Alliance v.

Zinke, 877 F.3d 1157 (10th Cir. 2017), upon which

App. 65

SUWA relies for the proposition that a change in

administration may justify intervention, the court

determined the United States did not represent the

interests of the environmental groups seeking to

intervene. But the Western Energy Alliance court

distinguished the Kane County intervention decision

from cases in which “the government has multiple

objectives.” Id. at 1169. Whereas the cases Western

Energy Alliance relies on involve government regulations issued for resource management purposes where

the relevant agency was acting under a multiple-use

mandate, id., here the question is title to real property

and the scope of that property for purposes of quieting

title. Unlike in Western Energy Alliance, SUWA has not

set forth any actual competing interests or motivations

that would cause the United States to take a position

other than advocating for the narrowest possible right

of way.

And the allegation that the United States has

softened its litigation position as a result of the change

in administration is unsupported by any evidence

other than statements by the parties that settlement

may be possible. Where the terms of any proposed

settlement are unknown, the mere possibility of

settlement cannot support a conclusion that one of the

parties has abdicated its positions.1 And even though

1

The court also concludes that the possibility of settlement

cannot alone be a basis for permitting intervention because the

Tenth Circuit has made clear an intervenor cannot veto a

settlement agreement reached by the parties. San Juan County,

503 F.3d at 1189 (“In particular, we should mention again that an

intervenor has no power to veto a settlement by other parties.”).

App. 66

there may have been efforts to settle this dispute, the

record does not support SUWA’s claims. Despite the

parties’ previous statements that a settlement may be

possible, they later filed status reports in which they

represented that further fact finding is necessary for

the resolution of the matter. (Kane’s Supplemental

Brief and Request for Further Findings of Fact and

Conclusions of Law, ECF No. 315; United States of

America’s Response, ECF No. 318.) This indicates to

the court that a settlement is not as likely as SUWA

suggests. Further, SUWA references the other R.S.

2477 litigation as evidence of possible settlement, but

in those cases the United States continues to actively

litigate and is currently engaged in the discovery

process. Without a showing that the United States has

an incentive to advocate for less than its full rights to

the real property at issue or a showing that, regardless

of incentives, it has abandoned that position, the court

cannot on speculation alone conclude that the United

States is no longer adequately representing SUWA’s

interests in limiting each right of way. Given the

presumption that the United States will represent the

good of the public, the court cannot conclude on this

record that the United States will do anything other

than continue to fully litigate this action.

For these reasons, the court is not persuaded that

there has been a change in circumstances justifying a

Therefore, to conclude that the possibility of settlement requires

that SUWA should be permitted to participate in litigation is

unworkable because, regardless of its intervention status, SUWA

would have no recourse to avoid the settlement.

App. 67

change in the court’s prior intervention decision.

Therefore, SUWA’s Motion to Intervene is DENIED.

App. 68

United States District Court,

D. Utah,

Central Division.

KANE COUNTY, UTAH,

a Utah political subdivision, Plaintiff,

v.

UNITED STATES of America, Defendant.

No. 2:08-CV-315.

April 6, 2009.

Elizabeth B. Harris, Shawn T. Welch, Kendra L. Shirey,

Holme Roberts & Owen LLP, Salt Lake City, UT,

William L. Bernard, Kanab, UT, for Plaintiff.

John K. Mangum, U.S. Attorney’s Office, Salt Lake

City, UT, Romney S. Philpott, U.S. Department of

Justice (ENR-663) Environmental & Natural Resources

Division, Washington, DC, for Defendant.

MEMORANDUM DECISION AND ORDER

CLARK WADDOUPS, District Judge.

Kane County, Utah, filed this action against the

United States under the Quiet Title Act, 28 U.S.C.

§ 2409A, seeking to quiet title to fifteen roads and

rights-of-way in Kane County, Utah. Kane County

claims that under 43 U.S.C. § 932, the roads at issue

were established as public rights-of-way prior to the

Act being repealed in 1976. Such roads are commonly

referred to as R.S. 2477 roads. The Southern Utah

Wilderness Alliance, the Wilderness Society and the

Sierra Club (collectively “SUWA”) have moved to

intervene in the action both as of right under Rule

App. 69

24(a)(2) of the Federal Rules of Civil Procedure and, in

the alternative, for permissive intervention under Rule

24(b). SUWA argues that it is seeking to intervene to

defend claims set forth in the Complaint by Kane

County against the United States. Both Kane County

and the United States oppose the intervention by

SUWA.

INTERVENTION AS A MATTER OF RIGHT

Under Rule 24(a)(2), an applicant for intervention

should be permitted to intervene if the following

elements are satisfied:

(1) the application is “timely”; (2) “the applicant claims an interest relating to the property or transaction which is the subject of the

action”; (3) the applicant’s interest “may as a

practical matter” be “impair[ed] or impede[d]”;

and (4) “the applicant’s interest is [not] adequately represented by existing parties.”1

Of the elements required to establish intervention,

Kane County and the United States raise only the

issues of whether SUWA, as a practical matter, has an

interest that may be impaired or impeded and whether

SUWA’s interest is adequately represented by the

existing parties. The issues raised in this motion have

previously been addressed in similar or nearly similar

1

Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. Dep’t of the Interior, 100 F.3d 837, 840 (10th Cir.

1996); Fed.R.Civ.P. 24(a)(2).

App. 70

cases, both in this court and in the Tenth Circuit.2 The

factors to be considered in the analysis and the

applicable principles have been set forth extensively in

those cases, particularly in San Juan County, and will

not be repeated here.

In this case, as it did in the previous cases, SUWA

argues that it has an interest that may be impaired by

the pending litigation because of its long and extensive

role in protecting wilderness lands in Southern Utah,

including Kane County. SUWA argues that even

though the only issue in this litigation is who holds

title to the roads at issue, the wilderness characteristics of the area and how the lands adjacent to the

roads are managed may be affected by who holds title.

It argues that Kane County has been insensitive to

protecting the wilderness characteristics of the lands

and SUWA should therefore be allowed to intervene on

behalf of its constituents to argue vigorously that title

should be held by the United States. In San Juan

County, seven of the thirteen judges addressing the

“interest” issue found that SUWA, in that case, had

sufficiently established an interest in the litigation to

meet that element of Rule 24(a)(2).3 SUWA argues that

2

See, e.g., San Juan County v. United States, 503 F.3d 1163

(10th Cir. 2007) (en banc) (hereinafter “San Juan County”); Utah

(Emery County) v. United States, No. 2:05-cv-540, 2008 WL

4571787 (D.Utah Oct. 8, 2008) (hereinafter “Emery County”);

Utah (Juab County) v. United States, No. 2:05-cv-714, 2008 WL

4170017 (D.Utah Sept. 3, 2008) (hereinafter “Juab County”).

3

San Juan County, 503 F.3d at 1199-1200.

App. 71

the same facts that led to this conclusion in San Juan

County compel the same finding in this case.

The United States and Kane County argue to the

contrary that the determination of whether the

applicant has a sufficient interest to intervene is

highly fact specific. They argue that, unlike the roads

at issue in San Juan County, the roads at issue here

have been open to the public for many years and thus,

compel a different conclusion as to whether SUWA has

a sufficiently impaired interest to meet the requirements of the rule. SUWA counters that while twelve of

the roads have been open to the public for many years,

three of the roads are closed and a finding of title in

favor of Kane County would risk these roads being

opened to the public. SUWA argues that, at least as to

these three roads, under San Juan County, it has met

the requirement to show an impaired interest.

As is evident from the Complaint, the only issue in

this case is whether Kane County can establish that it

holds title to the roads at issue. How the lands adjacent

to the roads will be managed and whether the roads

themselves will be open to the public once title is

determined are not issues that are relevant to the

determination of the quiet title action. In this case, it

is evident that SUWA does not have a “legal interest”

in the usual understanding of that word in a title

context. While SUWA obviously has an interest in the

sense that it cares deeply about the outcome of the

decision, it does not claim title to the roads at issue.

This conclusion was evident by SUWA’s concession at

oral argument that, were the United States and Kane

App. 72

County to resolve all of the title issues as to the roads

without SUWA’s consent or participation, SUWA

would have no right to continue with the action and

the action would be dismissed.

Based on the specific facts in this case and the

differences between the issues raised by Kane County

and those in San Juan County, the court finds that

SUWA has not established the element of having an

impaired interest in the litigation. The issues raised in

this case do not include the same factual underpinnings of continuing controversy over roads into

areas that have been protected by the National Park

Service as did the roads at issue in San Juan County.

Nevertheless, were the court to conclude that San

Juan County requires a different conclusion, SUWA

would still not meet the requirements for intervention

because it has failed to show that its interests in this

case are not adequately represented by the United

States.

ADEQUATE REPRESENTATION

SUWA argues that the United States will not

adequately represent its interests in the quiet title

action. SUWA supports this argument by setting forth

a history of adversarial relationships between SUWA

and the Bureau of Land Management (“BLM”), and

facts that it indicates support a conclusion that the

United States has been unwilling to defend vigorously

SUWA’s interests. SUWA has presented facts from

which one could conclude that it has, on occasion,

App. 73

disagreed with the BLM on how the lands adjacent to

the roads at issue should be managed. It also has

presented facts to show that SUWA takes a more

aggressive stance to preserving the wilderness characteristics of these lands than it contends has been taken

by the BLM in the management of the lands adjacent

to the roads at issue. Nevertheless, the management of

the lands has no bearing on the issue raised by the

Complaint.

The only issue to be resolved, as SUWA conceded

at oral argument, is whether the United States or

Kane County holds title. Whether Kane County can

establish the requirements to show that it holds title

to the roads based on R.S. 2477 will turn entirely on

the historic use of these roads by the public for the

period required under Utah law prior to 1976. In

neither its briefing nor at a oral argument was SUWA

able to proffer any evidence to which it would have

access about the historical use of the roads that is not

available to the United States. Moreover, SUWA does

not present evidence that it has any special expertise,

experience or knowledge with respect to the historic

use of the roads that would not be available to the

United States.

Indeed, the primary focus of SUWA’s briefing in

support of its motion is its long history of advocating

to preserve the wilderness characteristics of the lands

and the risks that opening the roads to the public may

have on preserving such wilderness areas. None of

these facts is relevant to the determination of whether

Kane County holds title. In Emery County, the court

App. 74

reached the same conclusion.4 In San Juan County, the

court reminded that “nothing we have said would

contravene the holding that Rule 24(a)(2) does not

require intervention as of right for the purpose of

presenting only irrelevant argument or evidence.”5 The

only arguments that SUWA appears to be prepared to

make in this case that would not be made by the

United States are those relating to the management of

the land, which would be irrelevant and not admissible

in evidence.

The United States argues that it has been and will

be vigorous in defending its claim to legitimate title to

the roads. The record does not compel a different

conclusion. Absent evidence showing that the United

States will not vigorously defend this position, there is

no basis to allow intervention by SUWA.

PERMISSIVE INTERVENTION

SUWA argues that even if the court concludes that

it does not meet the requirements for intervention as

a matter of right, it should be allowed to intervene

permissively under Rule 24(b). Rule 24(b) provides

that the court may permit intervention to an applicant

who

(A) is given a conditional right to intervene by

a federal statute; or

4

5

Emery County, 2008 WL 4571787, at *9.

San Juan County, 503 F.3d at 1203.

App. 75

(B) has a claim or defense that shares with

the main action a common question of law or

fact.6

SUWA does not claim that it has a conditional

right to intervene pursuant to any federal statute.

SUWA does argue, however, that “conservation groups

seeking to intervene on behalf of the government

[should be allowed to intervene where they] assert

defenses that are ‘directly responsive to the claims . . .

asserted by plaintiffs.’ ”7 SUWA maintains that it does

intend to assert claims that are common with those

that are at the center of this action.

To support its proposition, SUWA cites to Kootenai

Tribe. In that case, however, the court found that the

government had declined to defend fully and that the

intervenors would assist in a resolution of the issues

which would impact varied interests. Under those

circumstances, the court found it was not an abuse of

discretion to allow intervention. In this case, the

United States has not declined to defend. Instead, it

asserts its intent to fully defend.

Further, Kane County and the United States

respond that SUWA’s intervention in the case will not

add any additional insight to the arguments that will

be presented by the parties. As noted, the only issue in

this case is whether Kane County or the United States

6

Fed.R.Civ.P. 24(b).

SUWA’s Memo. in Supp. of Mot. to Intervene, at 32 (quoting

Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1110 (9th Cir.

2002)).

7

App. 76

owns title to the fifteen roads at issue. In Emery

County, the court concluded: “Resolution of this issue

will not involve any ‘claims’ or ‘defenses’ in common

with SUWA’s asserted conservation interest. Rather, it

is limited to the question of title, an issue the court has

already found is adequately represented by the United

States.”8 The court finds that the conclusion reached by

the court in Emery County is equally applicable to this

case. There is nothing in the briefing nor the arguments to suggest that SUWA would offer any additional defenses or claims relevant to the issue to be

decided that would not already be fully and completely

advocated by the United States. Indeed, SUWA does

not share any claim or defense in this action that is

different from any other member of the public who

cares deeply about the outcome of this litigation. To

allow SUWA to intervene in this action under Rule

24(b) would be an invitation to any member of the

public who holds strong views about the outcome to

seek to intervene. The court finds that intervention is

not appropriate under these circumstances.

The motion is DENIED.9

8

9

Emery County, 2008 WL 4571787, at 9.

Docket No. 28.

App. 77

United States Court of Appeals,

Tenth Circuit.

KANE COUNTY, UTAH, a political subdivision,

Plaintiff-Appellee,

v.

UNITED STATES of America,

Defendant-Appellee.

Southern Utah Wilderness Alliance,

Wilderness Society, Sierra Club, Movants-Appellants.

No. 09-4087,

March 8, 2010.

Heidi J. McIntosh, Southern Utah Wilderness Alliance,

Salt Lake City, UT (Steven H.M. Bloch, Southern Utah

Wilderness Alliance, Salt Lake City, UT; Edward B. Zukoski and Andrea Zaccardi, Earthjustice, Denver, CO,

with her on the briefs), for Movants to Intervene-Appellants Southern Utah Wilderness Alliance, Wilderness Society, and Sierra Club.

Shawn T. Welch (Kendra L. Shirey and Janna B. Custer

with him on the brief ), of Holme, Roberts & Owen LLP,

Salt Lake City, UT, for Plaintiff-Appellee Kane County,

Utah.

Aaron P. Avila, Attorney, Environment & Natural Resources Division, United States Department of Justice,

Washington, DC (John C. Cruden, Acting Assistant Attorney General; Brett L. Tolman, United States Attorney; John K. Mangum, Assistant United States

Attorney; James E. Karkut, Office of the Regional Solicitor Department of the Interior, Salt Lake City, UT;

Romney S. Philpott, Attorney, Environment & Natural

App. 78

Resources Division, United States Department of Justice, Washington, DC, with him on the brief ), for Defendant-Appellee United States.

Before KELLY, EBEL, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Southern Utah Wilderness Alliance, The Wilderness Society and the Sierra Club (collectively SUWA)

appeal from the district court’s denial of their motion

to intervene in this action brought by Kane County,

Utah, to quiet title to several purported rights-of-way

across federal public lands within Kane County. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

Kane County encompasses approximately 1.6 million acres of federal public land, nearly 1.3 million

acres of which lie within the Grand StaircaseEscalante National Monument (Monument). The nonMonument federal public land that lies within Kane

County includes wilderness study areas, as well as portions of land that SUWA is advocating for protection

under its long-proposed America’s Red Rock Wilderness Act (a piece of legislation that has been repeatedly

introduced, but never adopted by Congress). Historically, Kane County officials have maintained public

transportation routes that pass through or abut these

areas of federal public land.

App. 79

On April 25, 2008, Kane County initiated this action by filing a complaint against the United States under the Quiet Title Act, 28 U.S.C. § 2409a, seeking to

quiet title to two roads, Mill Creek Road and Bald

Knoll Road, both of which are located in western Kane

County, approximately 20 miles northeast of Kanab,

Utah, and cross portions of federal public land.1 The

complaint alleged that under a Reconstruction-era law

known as Revised Statute 2477 (R.S. 2477)2, Kane

County had “accepted R.S. 2477 rights-of-way for”

these two roads “on public lands not reserved for public

uses.” App. at 19. More specifically, the complaint alleged that Kane County had designated both roads “as

public highways and [had] expend[ed] public funds to

construct and maintain these roads prior to [the] October 21, 1976” repeal of R.S. 2477. Id. In addition, the

complaint alleged that both roads had been “continuous[ly] use[d] as public thoroughfares for a period in

excess of ten years prior” to the repeal of R.S. 2477. Id.

at 20. The first claim alleged in the complaint sought

1

The two roads actually encompass five segments of Kane

County routes: Mill Creek Road includes segments of three different Kane County route numbers (K4400, K4410, and K4405) and

Bald Knoll Road includes segments of two different Kane County

route numbers (K3930A and K3935).

2

“R.S. 2477 was repealed by the Federal Land Policy and

Management Act of 1976, Pub.L. No. 94-579, § 706(a), 90 Stat.

2743, 2793. But that Act explicitly protect[ed] R.S. 2477 rights-ofway in existence at the time of its enactment. Because such a

right-of-way could have come into existence without any judicial

or other governmental declaration, much litigation continues over

whether rights-of-way were in fact created on public land.” San

Juan County v. United States, 503 F.3d 1163, 1168 (10th

Cir.2007) (internal quotation marks and citations omitted).

App. 80

to quiet title to Kane County’s purported “R.S. 2477

public highway right-of-way for the Mill Creek [R]oad,”

“includ[ing] a right-of-way width of 66 feet. . . .” Id. at

35. The second claim alleged in the complaint sought,

in similar fashion, to quiet title to Kane County’s purported R.S. 2477 public highway right-of-way for Bald

Knoll Road, “includ[ing] a right-of-way width of 66

feet. . . .” Id. at 36.

On July 14, 2008, the United States filed an answer asserting six specific defenses to the two claims

alleged in Kane County’s complaint: (1) the district

court “lack[ed] jurisdiction over the subject matter of

th[e] action due to [Kane County]’s failure to satisfy

the ‘particularity’ requirement of the Quiet Title Act

and thereby invoke a waiver of the United States’ sovereign immunity under the Act,” id. at 61; (2) the district court “lack[ed] jurisdiction over the subject

matter of th[e] action due to [Kane County]’s failure to

allege facts sufficient to show that it c[ould] satisfy the

statute of limitations set forth in the Quiet Title Act,”

id.; (3) the district court “lack[ed] jurisdiction over the

subject matter of th[e] action due to [Kane County]’s

failure to allege a justiciable case or controversy between the parties,” id.; (4) Kane County “failed to state

a claim upon which relief c [ould] be granted,” id.; (5)

Kane County “failed to join indispensable parties under Rule 19 of the Federal Rules of Civil Procedure

with respect to the claimed rights-of-way that cross[ ]

private land,” id. at 62; and (6) Kane County’s “claims

are barred by the statute of limitations in the Quiet

Title Act.” Id.

App. 81

On September 24, 2008, Kane County moved for

leave to file an amended complaint. Attached to the

motion was a proposed amended complaint asserting

seven additional claims to quiet title to ten additional

roads: Skutumpah, Swallow Park/Park Wash, North

Swag and Nipple Lake Roads in western Kane County;

and Sand Dune, Hancock, and four Cave Lakes Roads

in southwestern Kane County. Id. at 98-129. The

United States did not oppose the motion. On October

30, 2008, the district court granted Kane County’s motion. Id. at 143. Kane County’s amended complaint was

subsequently filed on November 10, 2008.

On November 26, 2008, SUWA moved for leave to

intervene as of right “as a defendant in th[e] action

pursuant to Fed.R.Civ.P. 24(a)(2).” Id. at 210. “In the

alternative, SUWA request[ed] leave to permissively

intervene pursuant to Fed.R.Civ.P. 24(b).” Id. Both

Kane County and the United States opposed SUWA’s

motion to intervene.

On April 6, 2009, the district court issued a memorandum decision and order denying SUWA’s motion

to intervene. After outlining the requirements for intervention as of right under Rule 24(a)(2), the district

court noted that Kane County and the United States

disputed “only the issues of whether SUWA, as a practical matter, ha[d] an interest that m[ight] be impaired

or impeded and whether SUWA’s interest [wa]s adequately represented by the existing parties.” Id. at 772.

With respect to the first of these issues, the district

court concluded:

App. 82

As is evident from the Complaint, the

only issue in this case is whether Kane

County can establish that it holds title to the

roads at issue. How the lands adjacent to the

roads will be managed and whether the roads

themselves will be open to the public once title

is determined are not issues that are relevant

to the determination of the quiet title action.

In this case, it is evident that SUWA does not

have a “legal interest” in the usual understanding of that word in a title context. While

SUWA obviously has an interest in the sense

that it cares deeply about the outcome of the

decision, it does not claim title to the roads at

issue. This conclusion was evident by SUWA’s

concession at oral argument that, were the

United States and Kane County to resolve all

of the title issues as to the roads without

SUWA’s consent or participation, SUWA

would have no right to continue with the action and the action would be dismissed.

Based on the specific facts in this case

and the differences between the issues raised

by Kane County and those in San Juan

County, the court finds that SUWA has not established the element of having an impaired

interest in the litigation. The issues raised in

this case do not include the same factual underpinnings of continuing controversy over

roads into areas that have been protected by

the National Park Service as did the roads at

issue in San Juan County.

Id. at 773-74 (emphasis added). The district court

further concluded that SUWA had “failed to show that

App. 83

its interests in th[e] case [we]re not adequately represented by the United States,” id. at 774:

The only issue to be resolved, as SUWA

conceded at oral argument, is whether the

United States or Kane County holds title.

Whether Kane County can establish the requirements to show that it holds title to the

roads based on R.S. 2477 will turn entirely on

the historic use of these roads by the public

for the period required under Utah law prior

to 1976. In neither its briefing nor at a[sic]

oral argument was SUWA able to proffer any

evidence to which it would have access about

the historical use of the roads that is not available to the United States. Moreover, SUWA

does not present evidence that it has any special expertise, experience or knowledge with

respect to the historic use of the roads that

would not be available to the United States.

Indeed, the primary focus of SUWA’s

briefing in support of its motion is its long history of advocating to preserve the wilderness

characteristics of the lands and the risks that

opening the roads to the public may have on

preserving such wilderness areas. None of

these facts is relevant to the determination of

whether Kane County holds title. * * * In San

Juan County, the court reminded that “nothing we have said would contravene the holding that Rule 24(a)(2) does not require

intervention as of right for the purpose of presenting only irrelevant argument or evidence.” The only arguments that SUWA

appears to be prepared to make in this case

App. 84

would not be made by the United States are

those relating to the management of the land,

which would be irrelevant and not admissible

in evidence.

The United States argues that it has been

and will be vigorous in defending its claim to

legitimate title to the roads. The record does

not compel a different conclusion. Absent evidence showing that the United States will not

vigorously defend this position, there is no basis to allow intervention by SUWA.

Id. at 775-76 (emphasis added). Lastly, the district

court rejected SUWA’s request for permissive intervention, concluding “there [wa]s nothing in the briefing

nor the arguments to suggest that SUWA would offer

any additional defenses or claims relevant to the issues

to be decided that would not already be fully and completely advocated by the United States,” and that

“SUWA d[id] not share any claim or defense . . . that

[wa]s different from any other member of the public

who cares deeply about the outcome of th[e] litigation.”

Id. at 777.

II

In this appeal, SUWA challenges both the district

court’s denial of its motion to intervene as of right under Rule 24(a)(2), and the district court’s denial of its

motion for permissive intervention under Rule 24(b).

We review de novo a district court’s ruling on a motion

to intervene as of right under Federal Rule of Civil Procedure 24(a)(2). Coal. of Ariz./N.M. Counties For Stable

App. 85

Econ. Growth v. Dep’t of the Interior, 100 F.3d 837, 840

(10th Cir.1996). We review rulings on permissive intervention under Rule 24(b) for abuse of discretion. Alameda Water & Sanitation Dist. v. Browner, 9 F.3d 88,

89-90 (10th Cir.1993).

I. Intervention as of right

“Rule 24(a)(2) provides for intervention as of right

by anyone who in a timely motion ‘claims an interest

relating to the property or transaction that is the subject of the action, and is so situated that disposing of

the action may as a practical matter impair or impede

the movant’s ability to protect its interest, unless existing parties adequately represent that interest.’ ”

WildEarth Guardians v. U.S. Forest Serv., 573 F.3d 992,

995 (10th Cir.2009) (quoting Fed.R.Civ.P. 24(a)(2)). It is

undisputed in this case that SUWA timely moved to

intervene. Thus, the propriety of SUWA’s motion to intervene as of right hinges on: (1) whether SUWA has

an interest relating to the quiet title claims alleged in

Kane County’s first amended complaint that may, as a

practical matter, be impaired or impeded by the disposition of the litigation; and (2) whether the United

States, in defending against Kane County’s quiet title

claims, will adequately represent SUWA’s interest.

Proceeding directly to the latter of these inquiries, we

conclude 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. Consequently, we agree

App. 86

with the district court that SUWA was not entitled to

intervene as of right under Rule 24(a)(2).

a) Adequacy of the United States’ representation of

SUWA’s interests

“Even if an applicant satisfies the other requirements of Rule 24(a)(2), it is not entitled to intervene if

its ‘interest is adequately represented by existing parties.’ ” San Juan County, 503 F.3d at 1203 (quoting

Fed.R.Civ.P. 24(a)(2)).

In San Juan County, this court, sitting en banc,

was presented with a nearly identical “adequacy of

representation” question, but was unable to reach a

consensus in resolving that question. To begin with,

only seven of the thirteen members of the en banc court

concluded that SUWA had a legally protectable interest in the quiet title action, and thus only those seven

members reached the merits of the “adequacy of representation” question.3 The lead opinion in San Juan

County concluded, in a section garnering the votes of

only three of those seven members, that a presumption

of adequate representation applied because the government and SUWA shared the “single objective” of defending exclusive title to the roads at issue. Id. at 1204

3

The remaining six members of the en banc court concluded

that intervention by SUWA was improper both because SUWA

lacked a legally protectable interest in the quiet title action, and

because, in any event, intervention was barred by sovereign immunity. Those six judges, together with the three judges who

joined the lead opinion, comprised a majority that effectively affirmed the district court’s denial of intervention.

App. 87

(opinion of Hartz, J.). In that same section, the lead

opinion further concluded that SUWA could not overcome this presumption because it provided “no reason

to believe that the [government] ha[d] any interest in

relinquishing . . . any part of the federal title to the

road” at issue. Id. at 1207.

In contrast, four of the seven members concluded

that “SUWA [had] satisfied its minimal burden of

showing that the [government might not] adequately

represent SUWA’s interests in th[e] litigation.” Id. at

1227 (Ebel, J., concurring in part, dissenting in part).

This conclusion was based, in pertinent part, on the

notion that the quiet title action at issue would not “require[ ] a simple binary determination” of whether

“San Juan County ha[d] a right-of-way easement or

not,” but instead would involve a “more nuanced” determination that included “not only whether there

[wa]s any right-of-way, but also the nature and scope

of that right-of-way if it d[id] exist.” Id. at 1228.

Although San Juan County does not mandate a

particular outcome in this case, we are persuaded,

based upon comparing the arguments made by SUWA

in this case regarding the adequacy of representation

question with the rationales adopted by the two competing contingents in San Juan County, that SUWA

has failed to establish that its interest in the instant

case will not be adequately represented by the federal

government. As noted, the four members of the en banc

court who concluded that intervention should have

been granted in San Juan County emphasized that the

quiet title action at issue there would involve a

App. 88

“nuanced” determination encompassing “not only

whether there [wa]s any right-of-way, but also the nature and scope of that right-of-way if it d[id] exist.” Id.

at 1228 (Ebel, J., concurring in part, dissenting in

part). In seeking to intervene in this case, however,

SUWA made no such assertion regarding the quiet title claims alleged by Kane County. Instead, SUWA argued below only that (1) the history of adversarial

relations between itself and the Bureau of Land Management (BLM) demonstrated that the United States

might not adequately represent SUWA’s interests, and

(2) “BLM ha[d] not shown a willingness to defend federal control of its routes in the face of [prior] County

claims and actions.” App. at 244. Moreover, SUWA conceded at the hearing on its motion before the district

court that “[t]he only issue to be resolved . . . [wa]s

whether the United States or Kane County h[eld] title”

to the roads at issue. Id. at 775. To be sure, SUWA’s

counsel attempted, upon questioning at oral argument

before this court, to argue that SUWA and the United

States might disagree as to the potential scope of Kane

County’s purported rights-of-way. But any argument in

that regard has, for purposes of this appeal, been

waived. See Singleton v. Wulff, 428 U.S. 106, 120, 96

S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“[A] federal appellate court does not consider an issue not passed upon

below.”); Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136,

1143 (10th Cir.2009) (“Absent extraordinary circumstances, we will not consider arguments raised for the

first time on appeal.”). Further, SUWA has not challenged on appeal the district court’s findings that

SUWA failed to (a) “proffer any evidence to which it

App. 89

would have access about the historical use of the roads

that [wa]s not available to the United States,” or (b)

“present evidence that it ha[d] any special expertise,

experience or knowledge with respect to the historic

use of the roads that would not be available to the

United States.” App. at 775.

As for the two arguments actually asserted below

by SUWA, we are not persuaded they are sufficient, either alone or together, to establish that the federal government will fail to adequately represent SUWA’s

interests. Indeed, we agree with the federal government that those arguments “rel[y] on inapplicable

cases involving intervention in challenges to administrative action as well as irrelevant speculation about

and critiques of potential litigation strategies by the”

federal government, and “SUWA’s disagreement with

the United States’ land management decisions in the

past does not demonstrate that the United States is an

inadequate representative in this title dispute, which

is ultimately grounded in non-federal activities that

predate those management decisions.” Gov’t Br. at 20.

Moreover, we note that, as was the case in San Juan

County, the federal government “ha[s] displayed no reluctance [in these proceedings], at least so far as the

record before us shows, to claim full title to” the roads

at issue, and “SUWA has provided no basis to predict

that the [federal government] will fail to present . . . an

argument on the merits that SUWA would make.” 503

F.3d at 1206 (opinion of Hartz, J.).

App. 90

b) Conclusion

For the reasons outlined above, we conclude the

district court did not err in rejecting SUWA’s motion to

intervene as a matter of right under Rule 24(a). Assuming, for purposes of argument, that SUWA has a

valid interest in these quiet title proceedings, it has

failed to establish, at this stage of the litigation, that

the federal government will not adequately protect its

interest.

II. Permissive Intervention

Federal Rule of Civil Procedure 24(b) governs permissive intervention. Subsection (b)(1)(B) thereof requires the potential intervenor to show that it “has a

claim or defense that shares with the main action a

common question of law or fact.” Further, Rule 24(b)(3)

states that “[i]n exercising its discretion, the court

must consider whether the intervention will unduly

delay or prejudice the adjudication of the original parties’ rights.” The grant of permissive intervention lies

within the discretion of the district court. City of Stilwell v. Ozarks Rural Elec. Coop., 79 F.3d 1038, 1043

(10th Cir.1996).

In its motion to intervene, SUWA argued, in addressing the possibility of permissive intervention,

that it “intend[ed] to assert claims and defenses that

[we]re in common with those that [we]re at the center

of th[e] action: whether the facts and circumstances of

th[e] case support[ed] a finding that Kane County

h[eld] a valid [right-of-way] under R.S. 2477 to” the

App. 91

routes at issue. App. at 247. SUWA also noted that “in

its proposed answer [it] raise[d] a number of defenses

concerning whether Kane County c[ould] maintain its

action under the Quiet Title Act.” Id. Lastly, SUWA asserted that its “presence in the litigation w[ould] not

cause ‘undue delay or prejudice’ “ because “[t]he parties

[we]re at the very beginning of the case, and SUWA

agree [d] to abide by the schedules set by the [district

court].” Id. at 248.

The district court, in denying SUWA’s request for

permissive intervention, first noted that unlike the situation in Kootenai Tribe of Idaho v. Veneman, 313 F.3d

1094 (9th Cir.2002), the sole case relied upon by SUWA

in support of permissive intervention, the United

States in this case had “assert[ed] its intent to fully defend” against Kane County’s quiet title claims. Id. at

777. Continuing, the district court concluded that resolution of Kane County’s quiet title claims would not

involve any claims or defenses in common “with

SUWA’s asserted conservation interest.” Id. Rather,

the district court concluded, the claims were “limited

to the question of title, an issue . . . adequately represented by the United States.” Id. Further, the district

court noted “[t]here [wa]s nothing in the briefing nor

the arguments to suggest that SUWA would offer any

additional defenses or claims relevant to the issue to

be decided that would not already be fully and completely advocated by the United States.” Id. Finally, the

district court concluded that because “SUWA d[id] not

share any claim or defense in th[e] action that [wa]s

different from any other member of the public who

App. 92

cares deeply about the outcome of th[e] litigation,” “allow[ing] SUWA to intervene . . . under Rule 24(b)

would be an invitation to any member of the public

who holds strong views about the outcome to seek to

intervene.” Id.

On appeal, SUWA challenges the district court’s

ruling, but only very briefly. SUWA asserts that “the

district court abused its discretion because it erroneously held that SUWA [wa]s obligated to offer ‘additional defenses or claims relevant to the issue to be

decided’ from those offered by the United States.” Aplt.

Br. at 50. SUWA argues “[t]his is clear legal error that

warrants reversal” because “Rule 24(b) contains no requirement that intervenors offer a separate or additional claim or defense.” Id. (emphasis in original).

Although SUWA is correct in noting that Rule

24(b) does not require a permissive intervenor to assert a separate or additional claim or defense, nothing

in the Rule necessarily prohibits a district court, in exercising its discretion under Rule 24, from taking that

fact into consideration (and SUWA has cited no cases

holding that that is an improper consideration under

Rule 24(b)). Moreover, even assuming, for purposes of

argument, that the district court erred in relying on

this factor, SUWA has not challenged the three other

rationales offered by the district court for denying

SUWA’s request for permissive intervention. Thus,

SUWA has not established that the district court’s

decision was “an arbitrary, capricious, whimsical, or

App. 93

manifestly unreasonable judgment.” See Nalder v. West

Park Hosp., 254 F.3d 1168, 1174 (10th Cir.2001) (defining abuse of discretion review) (internal quotations

omitted).

AFFIRMED.

App. 94

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

-----------------------------------------------------------------------------------------------------------------------

KANE COUNTY, UTAH,

a Utah political subdivision,

Plaintiff - Appellant/

Cross-Appellee,

and

THE STATE OF UTAH,

Intervenor Plaintiff Appellant/Cross-Appellee,

v.

UNITED STATES

OF AMERICA,

Defendant - Appellee/

Cross-Appellant.

----------------------------SOUTHERN UTAH WILDERNESS ALLIANCE, et al.,

Movants.

----------------------------SIERRA CLUB, et al.,

Amici Curiae.

Nos. 13-4108,

13-4109 & 13-4110

(D.C. No. 2:08-CV00315-CW)

App. 95

-----------------------------------------------------------------------------------------------------------------------

ORDER

-----------------------------------------------------------------------------------------------------------------------

(Filed Sep. 2, 2014)

At the specific direction of the panel assigned to

hear these cases at oral argument on September 29,

2014, these matters are before the court on the motion

of the Southern Utah Wilderness Alliance and The Wilderness Society to intervene in the appeals. We also

have responses in opposition to the motion, as well as

a reply.

On November 13, 2013, the motion to intervene

was granted provisionally, but the order also noted

that provisional ruling would be “subject to reconsideration by the panel of judges that [would] be assigned

later.” The panel has now considered the motion, the

responses and reply, as well as all the briefing in these

matters. Upon consideration, and at the direction of

that panel, the motion to intervene is denied.

Entered for the Court

/s/ Elisabeth A. Shumaker

ELISABETH A. SHUMAKER, Clerk

App. 96

950 F.3d 1323

United States Court of Appeals, Tenth Circuit.

KANE COUNTY, UTAH, Plaintiff-Appellee,

and

The State of Utah, Intervenor Plaintiff-Appellee,

v.

UNITED STATES of America, Defendant-Appellee.

Southern Utah Wilderness Alliance; The

Wilderness Society, Movants-Appellants.

No. 18-4122

FILED February 27, 2020

(D.C. No. 2:08-CV-00315-CW), (D. Utah)

Before TYMKOVICH, Chief Judge, BRISCOE,

LUCERO, HARTZ, HOLMES, BACHARACH, PHILLIPS, MORITZ, EID, and CARSON, Circuit Judges.*

ORDER

This matter is before the court on the Petition by

United States of America for Rehearing En Banc, and

Appellees Kane County, Utah and State of Utah’s Petition for Panel Rehearing and Request for En Banc Rehearing. Appellants have filed a consolidated response

to both petitions.

* The Honorable Scott M. Matheson and the Honorable Carolyn B. McHugh are recused and did not participate in the consideration of the rehearing petitions.

App. 97

The Utah Appellees’ request for panel rehearing is

denied by a majority of the original panel members.

Chief Judge Tymkovich would grant panel rehearing.

Both petitions and the response were transmitted

to all non-recused judges of the court who are in regular active service, and a poll was called. Because an

equal number of participating judges voted against rehearing as voted for it, the requests for en banc rehearing are denied. See Fed. R. App. P. 35(a) (“[a] majority

of the circuit judges who are in regular active service”

may order en banc rehearing).

Chief Judge Tymkovich, as well as Judges Hartz,

Holmes, Eid and Carson would grant en banc rehearing. Judge Phillips has filed a separate concurrence in

the denial of en banc rehearing, which Judge Briscoe

joins. Chief Judge Tymkovich has written separately

in dissent. Judges Hartz and Holmes join in Part II of

the dissent, and Judges Eid and Carson join the dissent in full.

PHILLIPS, Circuit Judge, joined by BRISCOE,

Circuit Judge, concurring in the denial of rehearing en

banc.

This case fails the standard governing en banc

consideration. See Fed. R. App. P. 35(a)(1) and 10th Cir.

R. 35.1(A). Our local rule directs us that “[a] request

for en banc consideration is disfavored[,]” and that

“[e]n banc review is an extraordinary procedure intended to focus the entire court on an issue of exceptional public importance or on a panel decision that

App. 98

conflicts with a decision of the United States Supreme

Court or of this court.” 10th Cir. R. 35.1(A).

In this case, the en banc dissent contends that the

panel decision conflicts with controlling precedent. Obviously, this requires a greater showing than that the

en banc dissenters would have ruled differently than

did the panel.1 With this in mind, I will discuss how the

panel-majority’s opinion fits well within controlling

precedents. In fact, as will be seen, much of the panelmajority’s opinion is compelled by binding precedent,

and the remainder properly rested with the panel to

decide.

I.

Panel Rulings Alleged to Contravene Supreme Court and Tenth Circuit Precedents

A. Standing

In Kane County v. United States (Kane III), 928

F.3d 877 (10th Cir. 2019), the case now before us, the

panel majority concluded that the Southern Utah Wilderness Association (SUWA) had established standing

to seek intervention as of right under Fed. R. Civ. P.

24(a)(2). The panel ruled that SUWA had met the

standing requirement in two separate ways—piggyback standing and Article III standing. Either suffices.

1

In this regard, we must be mindful to filter out any attempts to reargue our earlier precedents. Here, that is particularly important to remember when encountering the en banc

dissent’s discussion of San Juan County v. United States, 503

F.3d 1163 (10th Cir. 2007) (en banc).

App. 99

1.

Piggyback Standing

Applying the rule announced in Town of Chester v.

Laroe Estates, Inc., ___ U.S. ___, 137 S. Ct. 1645, 198

L.Ed.2d 64 (2017), the panel majority first ruled that

SUWA had established piggyback standing2 to proceed

with its motion to intervene. Kane III, 928 F.3d at 886–

87. The panel acknowledged that the availability of

piggyback standing had narrowed from when we applied that doctrine in San Juan County v. United

States, 503 F.3d 1163, 1172 (10th Cir. 2007) (en banc).

Specifically, the panel majority addressed that point as

follows:

But ten years later [after San Juan County],

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, . . . 137 S. Ct at 1648[.] 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

2

This term refers to the situation in which a proposed intervenor relies on the Article III standing of a party to a lawsuit. See

United States v. Colo. & E. R.R. Co., 882 F.3d 1264, 1268 (10th

Cir. 2018) (“NDSC could not ‘piggyback’ on the standing of one of

the described parties to the Consent Decree because there was no

current case or controversy pending before the court on the part

of those parties[.]”).

App. 100

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.

Citing Town of Chester, 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. See

United States’ Resp. Br. at 22, 32; Oral Arg.,

at 18:30.

Kane III, 928 F.3d at 886–87 (second, third, and

fourth alterations in original) (footnotes omitted). As

seen, the Kane III panel majority applied piggyback

standing in accordance with Town of Chester. Piggyback standing was available because the United States

and SUWA seek the same relief.

The en banc dissent disputes the panel-majority’s

ruling that SUWA satisfied piggyback standing under

Town of Chester. First, the en banc dissent asserts that

the panel majority “held that SUWA was excused from

establishing standing, or, in the alternative, that it had

adequately done so.” En banc dissent at 1331 (citing

Kane III, 928 F.3d at 886–89). Certainly, the panel majority ruled that SUWA could piggyback the United

States’ Article III standing. But the panel majority correctly applied the Town of Chester standard in doing

App. 101

so. Second, the en banc dissent correctly asserts that

under Town of Chester, “where an intervenor pursues

separate relief from a party, it must establish standing

under Article III.” Id. at 1331 (citing Town of Chester,

137 S. Ct at 1648) (emphasis removed). But the en banc

dissent wrongly ascribes to the panel majority a position it never took, saying that “[a]ccording to the majority, SUWA’s interests are thus similar enough to the

United States’ to avoid having to establish its own

standing under Town of Chester.” Id. at 1332. In fact,

the block quote above shows that the panel majority

disagreed with Kane County’s argument that “SUWA

and the United States are pursuing different relief.”

Kane III, 928 F.3d at 887. After reciting how the United

States characterized its own interest, the panel majority concluded that the United States was seeking “the

same relief that SUWA seeks.” Id. (emphasis added).

This being so, the panel majority allowed SUWA to piggyback on the United States’ Article III standing. Id.

The en banc dissent errs in saying that the panel majority read Town of Chester as approving piggyback

standing when an intervenor’s and party’s interests

are “similar enough.” See en banc dissent at 1332.

Third, the en banc dissent claims that the majority

read Town of Chester as embracing a “more expansive

point"3 than permitted by Hollingsworth v. Perry, 570

3

Immediately before this statement, the en banc dissent

cites Town of Chester as “holding merely that ‘at the least, an intervenor of right must demonstrate Article III standing when it

seeks additional relief beyond which the plaintiff requests.’ ” En

banc dissent at 1332. The Court’s point preceding these quoted

words was that just as with plaintiffs and multiple plaintiffs, “[a]t

App. 102

U.S. 693, 704, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013),

and two of this court’s decisions4 “establishing that any

person seeking relief from a federal court must demonstrate standing to do so.” En banc dissent at 1332 (next

quoting Hollingsworth in a parenthetical for the

least one plaintiff must have standing to seek each form of relief

requested in the complaint.” Town of Chester, 137 S. Ct. at 1651.

The Court next simply states that “[t]he same principle applies to

intervenors of right.” Id. That gives the en banc dissent no basis

to say that the Kane III panel majority reads Town of Chester expansively.

4

In particular, the en banc dissent cites two Tenth Circuit

cases. First, it cites Colorado & Eastern Railroad, 882 F.3d at

1269. En banc dissent at 1332. Unlike Hollingsworth at least, Colorado & Eastern was decided after Town of Chester, in fact by

eight months. But Colorado & Eastern had no reason to address

Town of Chester, because Colorado & Eastern raised no piggyback-standing issue. Colo. & E. R.R., 882 F.3d at 1269. Instead,

the intervenor-appellant there asserted standing solely under Article III. Id. Facing that issue, we ruled that the intervenor-appellant had failed to establish Article III standing, reasoning that

“the record conclusively establishes that the relief requested by

NDSC will not redress any assumed injury to it caused by C &

E[.]” Id. Second, it cites Safe Streets Alliance v. Hickenlooper, 859

F.3d 865, 912 (10th Cir. 2017). En banc dissent at 1332. That case

came two days after Town of Chester and did not cite it. Instead,

Safe Streets Alliance cited Hollingsworth as abrogating San Juan

County’s expansive piggyback-standing rule. Safe Streets All., 859

F.3d at 912; Cf. San Juan Cty., 503 F.3d at 1172 (holding “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’ ”). The panel majority acknowledged the demise of San

Juan County’s broad piggyback standing rule and turned to Town

of Chester. See Kane III, 928 F.3d at 887. But just as Safe Streets

Alliance needed to acknowledge and apply Hollingsworth, so too

did the panel majority here need to acknowledge and apply Town

of Chester.

App. 103

proposition that “[o]ne essential aspect of [the powers

conferred by Art. III] is that any person invoking the

power of a federal court must demonstrate standing to

do so”). But Hollingsworth must be read in accordance

with Town of Chester, which was decided four years

later. Fourth, the en banc dissent mixes into its Article

III standing analysis its Rule 24(a)(2) adequacy-of-representation analysis. Id. at 1332–33. The two analyses

do not mix this way. For piggyback standing, Town of

Chester tells us exactly what to consider here—that is,

whether the intervenor is seeking the same relief as a

party is. 137 S. Ct. at 1651. By contrast, the Rule

24(a)(2) adequacy-of-representation analysis looks not

only to the degree of similarity of the sought interests

but to the degree the party will assert them. See San

Juan Cty., 503 F.3d at 1206. The panel majority applied

the piggyback-standing requirements in accordance

with Town of Chester, and in doing so it contravened

neither Supreme Court nor Tenth Circuit law.

2.

Article III Standing

Separate and apart from piggyback standing, the

majority panel ruled that SUWA had shown its own

standing under Article III. In this regard, the majority

recognized that SUWA needed 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.” Kane III, 928 F.3d at 888 (citing Friends

of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

App. 104

528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610

(2000)).

In concluding that SUWA had met these requirements, the panel majority turned to the primary case

the en banc dissent claims the majority’s decision contravenes—San Juan County. The panel majority noted

that “[h]ere, as in San Juan County, it is ‘indisputable

that SUWA’s environmental concern is a legally protectable interest.’ ” Kane III, 928 F.3d at 888 (citing San

Juan Cty., 503 F.3d at 1199).5 We noted that “[i]n 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.’ ” Id. (citing San Juan Cty., 503 F.3d at 1200). We explained that

in San Juan County we had seen “nothing speculative

about the impact on SUWA’s interests if the County

prevails in its quiet-title action” and further noted that

San Juan County had stated that the opening of roads

was the whole point of the lawsuit. Kane III, 928 F.3d

at 888 (quoting San Juan Cty., 503 F.3d at 1201–02)

(internal quotation marks omitted). And we

“acknowledge[d] that San Juan County involved the

5

In a footnote, the panel majority stated that “[t]hough this

portion of the opinion concerned the potential impairment of

SUWA’s interests under Rule 24(a)(2), other courts have recognized that ‘any person who satisfies Rule 24(a) will also meet Article III’s standing requirement.’ Roeder v. Islamic Republic of

Iran, 333 F.3d 228, 233 (D.C. Cir. 2003); see also Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 946 (7th Cir. 2000) (‘Any

interest of such magnitude as to support Rule 24(a) intervention

of right is sufficient to satisfy the Article III standing requirement

as well.’) (internal quotations and alterations omitted).” Kane III,

928 F.3d at 888 n.14.

App. 105

possibility of reopening closed roads, as opposed to widening already-opened roads, as here—but we view both

as sufficient degrees of impact.” Kane III, 928 F.3d at

888–89. On this point, we observed that “[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).” Id. at 889.

In my view, the en banc dissent does not fully

credit that the seven-judge majority in San Juan

County ruled that SUWA had established a protectible

interest under Fed. R. Civ. P. 24(a)(2). The Kane III

panel majority merely followed in its wake.

B. Right to Intervene Under Fed. R. Civ. P. 24(a)(2)

1.

Title or Property-Rights Dispute

The en banc dissent describes the underlying suit

as one solely involving property law, an ownership dispute between the governmental parties. En banc dissent at 1330–31, 1333, 1334. From this, it concludes

that “[a]s a quiet title action, this dispute focuses solely

on the various ownership rights the parties have in the

disputed rights-of-way. SUWA has no role in such litigation because it lacks any independent ownership

claim in the disputed property.” Id. at 1334. From this,

I gather that the dissent concludes that environmental

groups (or any others lacking an ownership claim) can

never intervene in R.S. 2477 suits. See id. (saying that

“[t]he nature of the suit [described as a property dispute] further compels this result”—that SUWA cannot

App. 106

show standing under Article III). This ignores the San

Juan County’s seven-judge majority’s two-sentence

statement that “[w]e recognize that SUWA does not

claim that it has title to Salt Creek Road, even though

this is a quiet-title suit. But Rule 24(a)(2) does not

speak of ‘an interest in the property’; rather, it 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 (quoting

Fed. R. Civ. P. 24(a)(2)) (alterations in original).

In addition, as mentioned, the seven-judge majority in San Juan County agreed that SUWA had satisfied the first portion of Fed. R. Civ. P. 24(a)(2)—namely,

that in that R.S. 2477 suit involving the Salt Creek

Road, SUWA had “claim[e

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