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

Supreme Court briefJul 24, 2020

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No. -20XXXX

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

KANE COUNTY, UTAH, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

(VOLUME 1)

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

EDWIN S. KNEEDLER

Deputy Solicitor General

JONATHAN D. BRIGHTBILL

ERIC GRANT

Deputy Assistant Attorneys

General

ANTHONY A. YANG

Assistant to the Solicitor

General

WILLIAM B. LAZARUS

ANDREW C. MERGEN

JAMES A. MAYSONETT

SOMMER ENGELS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

TABLE OF CONTENTS

Page

Volume 1

Appendix A – Court of appeals opinion

(June 25, 2019) ............................................ 1a

Appendix B – District court order (Aug. 21, 2018) ...... 52a

Appendix C – Court of appeals opinion

(Dec. 2, 2014) ........................................ 61a

Appendix D – Court of appeals opinion

(Mar. 8, 2010) ............................................ 96a

Appendix E – Memorandum decision and order

(Apr. 6, 2009) .......................................... 111a

Appendix F – Court of appeals order denying

rehearing (Feb. 27, 2020) ...................... 119a

Volume 2

Appendix G – Kane County’s First Amended

Complaint (Feb. 20, 2009) ..................... 149a

Appendix H – United States’ Answer

(Nov. 13, 2009) ........................................ 229a

Appendix I – State of Utah’s Complaint in

Intervention (Apr. 29, 2010) ................. 311a

Appendix J – United States’ Answer to Complaint

in Intervention (Aug. 16, 2010) ............ 374a

Appendix K – Southern Utah Wilderness Association Motion to Intervene (Dec. 27,

2017) ......................................................... 432a

Exhibit A – Proposed Answer to First

Amended Complaint ............................ 453a

Exhibit B – Proposed Answer to Complaint in

Intervention .......................................... 477a

Exhibit C – Declaration of Ray Bloxham

(dated Dec. 21, 2017) ............................ 497a

(I)

Exhibit D – Declaration of Kay Marienfeld

(dated Dec. 20, 2017) ............................ 508a

Exhibit F – Letter (dated Nov. 30, 2017) ............... 513a

Exhibit H – Draft Letter (dated Apr. 2017)........... 517a

Appendix L – Statutory provisions and rules ............. 524a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 18-4122

KANE COUNTY, UTAH, PLAINTIFF-APPELLEE

AND

THE STATE OF UTAH,

INTERVENOR PLAINTIFF-APPELLEE

UNITED STATES OF AMERICA, DEFENDANT-APPELLEE

SOUTHERN UTAH WILDERNESS ALLIANCE;

THE WILDERNESS SOCIETY, MOVANTS-APPELLANTS

[Filed:

June 25, 2019]

Appeal from the United States District Court

for the District of Utah

(D.C. No. 2:08-CV-00315-CW)

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

PHILLIPS, Circuit Judge.

This case comes to us for a third time. This time, we

review SUWA’s challenge to the district court’s denial

of its second motion to intervene. SUWA filed this second motion after we reversed the district court’s deter-

(1a)

minations 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.

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 (1983). Kane County alleged that it

held title to fifteen rights-of-way under Section 8 of the

Mining Act of 1866, more commonly known as “Revised

Statute (R.S.) 2477.” In enacting R.S. 2477, Congress

codified “a standing offer of a free right of way over the

public domain,” allowing the construction of highways

over public lands not already “reserved for public uses.”

Lindsay Land & Live Stock Co. v. Churnos, 285 P. 646,

648 (Utah 1929) (internal quotations omitted). In 1976,

Congress enacted the Federal Land Policy and Management Act, which repealed R.S. 2477, but preserved

already-existing rights-of-way. 43 U.S.C. § 1769(a).

Seven months after Kane County filed its complaint,

SUWA 1 moved to intervene as of right under Rule

24(a)(2) of the Federal Rules of Civil Procedure. Both

Kane County and the United States opposed the motion.

After a hearing, the district court denied SUWA’s motion, concluding that SUWA had no legal interest in the

asserted rights-of-way, because “the only issue in this

case is whether Kane County can establish that it holds

title to the roads at issue” and SUWA “does not claim

title to th[ese] roads.” Kane Cty., Utah v. United

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

Apr. 6, 2009). The court further concluded that even if

SUWA did have an interest, it had failed to show that

the United States would not adequately represent that

interest or that it possessed “any special expertise, experience, or knowledge with respect to the historic use

of the roads that would not be available to the United

States.” Id. at *2-3.

In 2009, SUWA appealed, and in March 2010 we affirmed, concluding that “even assuming SUWA has an

interest in the quiet title proceedings at issue, SUWA

has failed to establish that the United States may not

adequately represent SUWA’s interest.” Kane Cty.,

Utah v. United States, 597 F.3d 1129, 1133 (10th Cir.

2010) (“Kane County I”). Specifically, we rejected

SUWA’s argument that it had shown the United States

would not adequately represent SUWA’s interest in litigating title, despite SUWA’s reliance on its history of

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.

adversarial relations with the Bureau of Land Management (BLM) and on the BLM’s alleged unwillingness to

defend federal control. Id. at 1134-35.

We raised the possibility of looking beyond the binary title determination to address the “potential scope

of Kane County’s purported rights-of-way.” Id. at

1135. But we ultimately declined to do so after noting

that SUWA had not argued in the district court that

scope was part of the title determination. Id. Further, we noted that SUWA hadn’t even raised the issue

on appeal until questioned about it during oral argument. Id. Accordingly, we deemed the scope argument

waived “for purposes of this appeal.” Id. We affirmed

on grounds that SUWA had “failed to establish, at this

stage of the litigation, that the federal government will

not adequately protect its interest.” Id.

In March 2010, soon after we decided Kane County

I, the district court granted the State of Utah’s motion

to intervene as of right as a plaintiff. Then, in August

2011, after having “traveled all of the roads at issue with

counsel and representatives of the parties during a twoday 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

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

that (1) it had subject-matter jurisdiction under the

Quiet Title Act over all the disputed roads, and that (2)

Kane County and the State of Utah had proved R.S.

2477 rights-of-way on twelve of the fifteen roads or road

segments. Id. The court also decided the scope—i.e.,

the reasonable and necessary width based on the pre1976 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

it limited SUWA to those briefs). And in one of its post-trial 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).

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 121619; and reversed the district court’s determination that one of the

roads was “reserved for public use” under R.S. 2477, id. at 1222.

Ranchos De Albuquerque v. Marsh, 956 F.2d 970 (10th

Cir. 1992). In other words, an R.S. 2477 right-of-way

in Utah may be widened “as necessary to meet the exigencies of increased travel, at least to the extent of a

two-lane road.” Id. at 1083. This analysis requires

the district court to proceed in three steps. First, the

court must make the binary determination of whether a

right-of-way exists at all. Id. Second, the court must

determine the pre-1976 uses of the right-of-way. Id.

And third, the court must decide whether, based on the

pre-1976 use, the right-of-way should be widened to

meet the exigencies of increased travel. Id. To the

extent that the right-of-way holder wishes to improve 4

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.

the right-of-way beyond what is reasonable and necessary, however, it must first consult with the BLM. Id.

at 1084-85.

In its memorandum decision, the district court had

concluded that Kane County and the State of Utah had

proved 24-foot rights-of-way on Swallow Park and North

Swag roads (five-mile stretches of dirt road with a current travel surface of between 10 and 12 feet), and a 66foot right-of-way on Skutumpah Road (a “major twolane thoroughfare” stretching thirty three miles with a

current travel surface of between 24 and 28 feet).

Kane Cty. II, 772 F.3d at 1223; Kane Cty., 2013 WL

1180764, at *9. But because the district court had

failed to consider the pre-1976 uses of these roads, we

remanded for it to redetermine the width of the roadways. Kane Cty. II, 772 F.3d at 1223. Specifically, we

recognized that while a “road can be ‘widened [beyond

its pre-1976 boundaries] to meet the exigencies of increased travel,’ including where necessary to ensure

safety,” the reasonableness and necessity of any expansion beyond the pre-1976 right-of-way must be read “ ‘in

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

was put.’ ” Id. (emphasis in original) (quoting Hodel,

848 F.2d at 1083). 5

After remand, the case slowed until September 2017,

when the district court entered an order directing the

parties to file briefs on the effect of our ruling. Ten

days later, the parties jointly moved for a four-month

stay, stating that they had begun settlement discussions

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, 136 S. Ct. 318 (2015); Kane Cty.,

Utah v. United States, 136 S. Ct. 319 (2015).

and were “optimistic” that they could “reach agreement

regarding the effect of [our] decision” and resolve the

remaining issues.

Appellant’s App. at 38, 110-11.

Three days later, the district court granted the motion. 6

About two months after that, SUWA sent a letter to the

parties requesting “reasonable advance notice” of any

settlement discussions and “an opportunity to attend

and participate in such discussions,” but received no

response. Id. at 125, 262-63. About three months

after the joint motion was filed, the President of the

United States considerably reduced the size of the

Grand-Staircase-Escalante National Monument from

about 1,700,000 acres to about 838,000 acres. 7 Relevant here, SUWA represented at oral argument that

Swallow Park Road and North Swag Road both lie

within the de-established portions of the monument,

though the United States asserted that only Swallow

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 factfinding was necessary, but asserting that the existing record could be supplemented by lay and

expert testimony without a second site visit.

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

whitehouse.gov/presidential-actions/presidential-proclamation-modifyinggrand-staircase-escalante-national-monument/. This proclamation,

along with a proclamation reducing Bears Ears National 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).

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-ofway. 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-CV315, 2018 WL 3999575, at *3 (D. Utah Aug. 21, 2018).

Second, the court rejected SUWA’s argument that the

United States was necessarily representing competing

interests, reasoning that unlike cases involving environmental regulations or resource management, the United

States’ sole interest here lay in seeking the narrowest

width of the roadways. Id. Third, the court ruled

that the “mere possibility of settlement” did not mean

that “the United States would advocate for anything

The Wilderness Society joined the second intervention motion,

but the Sierra Club did not.

10a

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

Standing

To seek relief in federal court, a party must show constitutional standing. Bennett v. Spear, 520 U.S. 154, 162

(1997). To make this showing, a party must “demonstrate that he has suffered injury in fact, that the injury

is fairly traceable to the [challenged conduct], and that

the injury will likely be redressed by a favorable decision.” Id. (internal quotations omitted).

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

R.S. 2477 case involving SUWA, a majority 10 of our en

banc court held that “parties seeking to intervene under

Rule 24(a) or (b) need not establish Article III standing

‘so long as another party with constitutional standing on

the same side as the intervenor remains in the case.’ ”

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

quotations omitted).

The Appellees make no prudential-standing arguments.

Unless we indicate otherwise, every citation to San Juan County

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

votes.

11a

But ten years later, the Supreme Court modified our

“piggyback standing” rule, holding that an intervenor as

of right must “meet the requirements of Article III if

the intervenor wishes to pursue relief not requested” by

an existing party. Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1648 (2017). In that case,

the record was ambiguous whether the intervening

plaintiff was seeking a different form of relief from the

existing plaintiff: a separate award of money damages

against the same defendant in its own name. Id. at

1651-52. Because “[a]t least one [litigant] must have

standing to seek each form of relief requested,” the

Court remanded for the circuit court to determine

whether the intervenor, in fact, sought “additional relief

beyond” what the plaintiff requested. Id. at 1651. 11

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 4-5. But language to 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 (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. 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 would-be 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

12a

Citing Town of Chester, 12 Kane County argues that

SUWA cannot simply invoke the United States’ Article

III standing, contending that SUWA and the United

States are pursuing different relief. We disagree with

that view. After all, the United States has informed us

that it seeks “retention of the maximum amount of property” and will argue for “the smallest widths [it] can

based on the historical evidence,” the same relief that

SUWA seeks. 13 See United States’ Resp. Br. at 22, 32;

Oral Arg., at 18:30.

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.

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 special-interest 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).

Contrary to the dissent’s view, see Dissenting Op. at 3-4, 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.

13a

Moreover, even if SUWA needed to establish its own

independent standing, it has done so. Article III standing requires a litigant to show: (1) an injury in fact that

is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is

fairly traceable to the challenged conduct; and (3) the

injury can likely be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 180-81 (2000).

Here, as in San Juan County, it is “indisputable that

SUWA’s environmental concern is a legally protectable

interest.” See 503 F.3d at 1199. To prove an injury in

fact, SUWA must establish an actual or imminent impairment of that interest. Imminence is “a somewhat

elastic concept,” Lujan v. Defs. of Wildlife, 504 U.S. 555,

564 (1992), and “[a]n allegation of future injury may suffice if the threatened injury is certainly impending, or

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.”).

14a

there is a substantial risk that the harm will occur,” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158

(2014) (internal quotations omitted).

Under this standard, we conclude that SUWA has established an imminent injury. Kane County and the

State of Utah seek to double the width of Swallow Park

and North Swag roads, which are both dirt roads, and to

more than double the width of Skutumpah Road. Wider

roads will likely require realignments or improvements,

such as grading or paving. See generally, Hodel, 848

F.2d at 1084-86; Kane Cty., 2013 WL 1180764. Such

widening and improvement of the roads in a scenic area

would almost inevitably increase traffic, diminishing the

enjoyment of the nearby natural wilderness. See Hodel, 848 F.2d at 1092 (noting that a project involving “realignments, widening, . . . [and] a significant improvement in the quality of the road surface” would accommodate “large increases in future traffic” on the

road); S. Utah Wilderness All., 425 F.3d at 748 (noting

that improvements may “change the character of the

roadway”).

Nor is such an injury speculative. An injury may be

imminent even though contingent upon an unfavorable

outcome in litigation. See Protocols, LLC v. Leavitt,

549 F.3d 1294, 1299 (10th Cir. 2008) (concluding that

“[t]he consequences of a contingent liability

. . .

may well be actual or imminent” even though “by definition [such liability] may not arise for a considerable

time, if ever”). In San Juan County, we recognized

that “if the County prevails, it will then pursue opening

the road to vehicular traffic that SUWA has been trying

to prevent.” 503 F.3d at 1200. For that reason, we

saw “nothing speculative about the impact on SUWA’s

15a

interests if the County prevails in its quiet-title action,”

noting that “the whole point of ” Kane County’s suit was

to increase traffic on the roads. 14 Id. at 1201-02. We

acknowledge that San Juan County involved the possibility of reopening closed roads, as opposed to widening

already-opened roads, as here—but we view both as sufficient degrees of impact. A 24-foot road allows more

traffic than a 10- or 12-foot road (in the case of North

Swag and Swallow Park roads), and a 66-foot road allows more traffic than a 24- to 28-foot road (in the case

of Skutumpah Road). And the more traffic, the more

of an impact on the natural wilderness. Therefore,

even assuming SUWA were required to establish its

own Article III standing, we conclude that it has done

so. See Laidlaw, 528 U.S. at 180-81.

II. Standard of Review

Under Rule 24(a)(2) of the Federal Rules of Civil Procedure, a nonparty seeking to intervene as of right must

establish (1) timeliness, (2) an interest relating to the

property or transaction that is the subject of the action,

(3) the potential impairment of that interest, and (4) inadequate representation by existing parties. W. Energy All. v. Zinke, 877 F.3d 1157, 1164 (10th Cir. 2017).

We review a district court’s timeliness ruling for an

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).

16a

abuse of discretion, unless the district court makes no

findings on timeliness; in that case, we review de novo.

Utah Ass’n of Ctys. v. Clinton, 255 F.3d 1246, 1249 (10th

Cir. 2001). And, at least for initial motions to intervene, we review the district court’s rulings on the other

three prongs de novo. Coal. of Ariz./N.M. Ctys. for

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

840 (10th Cir. 1996).

SUWA filed its second motion to intervene nine years

after filing its first. 15 SUWA argues that the district

court erred in treating its second motion as one for reconsideration of its denial of the first motion to intervene. Instead, SUWA says, we should review de novo,

because it did “not ask the Court to second guess its

prior ruling or review previously existing but newly discovered facts,” but rather to consider “a new political

and legal landscape that did not exist when SUWA

moved to intervene a decade ago.” SUWA’s Opening

Br. at 12 n.47. In contrast, the Appellees argue that

this court should treat SUWA’s second motion as a mere

request to reconsider the denial of its 2008 motion to intervene. From this, they argue that the proper standard of review is for an abuse of discretion. See United

States v. Huff, 782 F.3d 1221, 1224 (10th Cir. 2015) (“We

review a district court’s decision whether to reconsider

a prior ruling for abuse of discretion.”).

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.

17a

We agree with SUWA. Though our court has never

determined what standard of review applies to a successive motion to intervene, we conclude that de novo review is more appropriate when, as here, a proposed intervenor shows that circumstances have changed between the two motions to intervene.

In City of Colorado Springs v. Climax Molybdenum

Co., a movant had filed three motions to intervene over

a nearly-fifty-year span. 587 F.3d 1071, 1077 (10th Cir.

2009). Though we ultimately decided the case on standing grounds, we stated that “[i]f we reach the merits of

Climax’s appeal, our review of the district court’s denial

of the motion to intervene as of right will be de novo.”

Id. at 1078. 16

In addition, other cases in our circuit point us to de

novo review here. In San Juan County, seven judges

acknowledged that case developments can alter the intervention calculus. In the lead opinion, Judge Hartz,

joined by two other judges, stated that the “denial [of a

motion to intervene] does not forever foreclose” intervention and that “the matter may be revisited” if “developments after the original application for intervention

undermine” the basis for the initial denial. San Juan

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 (10th Cir. 2002), contain

stray comments characterizing a successive motion for intervention

as a motion to reconsider. See Dissenting Op. at 12. 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).

18a

Cty., 503 F.3d at 1207 (opinion of Hartz, J.). In addition, Judge Ebel, joined by three other judges, stated “I

recognize, and appreciate the [lead opinion’s] recognition that SUWA may renew its motion to intervene at a

later date if it can demonstrate more clearly a conflict

between its interests and the conduct of the United

States in this or subsequent litigation.” Id. at 1227

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

By emphasizing the possibility of changed circumstances,

we view the seven judges as recognizing the importance

of another round of review. We see no sense in blocking ourselves from the same de novo review we give the

initial motion to intervene—when things have so

changed. 17 Significantly, our statement in Kane County

I also emphasizes a need to reevaluate intervention

when circumstances change. 18 See Kane Cty. I, 597 F.3d

at 1135 (“[SUWA] has failed to establish, at this stage of

the litigation, that the federal government will not adequately protect its interest.”) (emphasis added).

III. SUWA is entitled to intervene as of right.

As previously noted, to intervene as of right SUWA

must establish that (1) the application is timely; (2) it

claims an interest relating to the property or transaction

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).

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.

19a

which is the subject of the action; (3) the interest may as

a practical matter be impaired or impeded; and (4) the

interest may not be adequately represented by existing

parties. Zinke, 877 F.3d at 1164. “This court has historically taken a liberal approach to intervention and

thus favors the granting of motions to intervene.” Id.

(internal quotations omitted). In addition, “the requirements for intervention may be relaxed in cases raising significant public interests.” San Juan Cty., 503 F.3d at

1201 (citing Cascade Nat. Gas Corp. v. El Paso Nat. Gas

Co., 386 U.S. 129, 136 (1967)). We now consider each

prong in turn.

SUWA’s motion is timely.

Kane County argues that SUWA’s motion is untimely.

“The timeliness of a motion to intervene is assessed ‘in

light of all the circumstances, including the length of

time since the applicant knew of his interest in the case,

prejudice to the existing parties, prejudice to the applicant, and the existence of any unusual circumstances.’ ”

Utah Ass’n of Ctys., 255 F.3d at 1250 (quoting Sanguine,

Ltd. v. U.S. Dep’t of Interior, 736 F.2d 1416, 1418 (10th

Cir. 1984)). “[D]elay in itself does not make a request

for intervention untimely.” Oklahoma ex rel. Edmondson v. Tyson Foods, Inc., 619 F.3d 1223, 1235 (10th Cir.

2010). “The other factors in the test for untimeliness

must also be considered.” Id.

Reviewing de novo, 19 we conclude that SUWA’s motion

is timely. First, SUWA filed the motion three months after the parties’ joint motion to stay. See Zinke, 877 F.3d

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.

20a

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.

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

21a

the strength of the interest and the potential risk of injury to that interest justify intervention.” 20 Id. Establishing the potential impairment of such an interest

“presents a minimal burden,” WildEarth Guardians v.

Nat’l Park Serv., 604 F.3d 1192, 1199 (10th Cir. 2010),

and such an impairment may be “contingent upon the

outcome of [] litigation,” San Juan Cty., 503 F.3d at 1203

(quoting United States v. Union Elec. Co., 64 F.3d 1152,

1162 (8th Cir. 1995)). For example, we have concluded

that a commercial wildlife photographer who had “photographed and studied the [Mexican Spotted] Owl in the

wild” and had been instrumental in the decision to list

the Owl under the Endangered Species Act possessed a

legal interest in defending against a lawsuit to rescind

that protection. Coal. of Ariz./N.M. Ctys., 100 F.3d at

839-43.

In San Juan County, we concluded that it was “indisputable that SUWA’s environmental concern is a legally

protectable interest.” 503 F.3d at 1199. But in the present case, the district court declined to revisit its 2009 ruling that SUWA possesses no legal interest in the case.

In that decision, the district court had reasoned that (1)

“unlike the roads at issue in San Juan County, the roads

at issue here have been open to the public for many

years,” and (2) “the only issue in this case is whether

Kane County can establish that it holds title to the roads

at issue.” Kane Cty., 2009 WL 959804, at *2. These rationales are not persuasive.

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.

22a

First, as mentioned previously, we view the difference in impacts between opening closed roads and widening already-opened roads as one of degree. Wider

roads attract more traffic, which would impair SUWA’s

interest in preservation and enjoyment of the surrounding land. Second, a majority of our court recognized in

San Juan County that although “SUWA d[id] not claim

that it ha[d] title” to the disputed right-of-way, Rule

24(a)(2) “requires only that the applicant for intervention ‘claim an interest relating to the property or transaction which is the subject of the action.’ ” 503 F.3d at

1200 (alteration omitted) (emphasis in original) (quoting

Fed. R. Civ. P. 24(a)(2)). Given SUWA’s decades-long

history of advocating for the protection of these federal

public lands, and the plaintiffs’ stated objective of 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.

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 (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,

23a

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 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

24a

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

would-be intervenor.” Id. at 1256. The reasoning of

these cases supports SUWA’s intervention in the present

case.

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,

25a

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 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

Neither Judge Kelly’s nor Judge McConnell’s concurrence takes

a position on the question of scope.

26a

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, we

remanded for the district court to reexamine 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 F.3d at 1229

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

27a

(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 (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

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. 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.

28a

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 (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 them

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

at 24:30, an interest that SUWA certainly doesn’t

29a

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. 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

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).

30a

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 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

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

31a

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 (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.”). 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. 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

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, 29293.

32a

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.

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.

33a

18-4122, Kane County v. United States

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.

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 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., 137

34a

S. Ct. 1645, 1651 (2017); Hollingsworth v. Perry, 570

U.S. 693, 704 (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., 134 S. Ct. 1377, 1386 (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) (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 (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. Three years later, the Supreme Court unan-

35a

imously 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 slip op. at 12.

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 28, with

respect to the scope of Kane County’s asserted rightsof-way. See also id. at 26 (“SUWA is focused on pursuing the narrowest scope [of road width], but many of the

stakeholders involved may want wider roads. The United

States represents these broad-ranging and competing

interests, too.”). If SUWA seeks identical relief to the

United States—that is, federal retention of the maximum amount of property—then 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

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.

36a

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 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.

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).

37a

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

has established standing. Our Article III and thirdparty standing doctrines indicate otherwise.

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 (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 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 (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

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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 (2013) (cleaned up); see also Summers v. Earth

Island Inst., 555 U.S. 488, 499 (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; 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

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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. at 499.

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.

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 (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, 137 S. Ct. 1678, 1689 (2017).

That exception does not apply here. SUWA has no

special relationship with the United States and there is

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no barrier preventing the United States from asserting

its right to title.

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 (1975)). 2

After Wilderness Society, the Supreme Court substantially narrowed the category of prudential standing.

See Lexmark, 572 U.S. 118. The Court did not, however, revisit the doctrine of third-party standing. See

id. at 127 n.3 (“This case does not present any issue of

third-party standing, and consideration of that doctrine’s proper place in the standing firmament can await

another day.”). The Supreme Court noted the thirdparty standing rule is “closely related to the question

whether a person in the litigant’s position will have a

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., 135 S. Ct. 1378, 1383-84 (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.

41a

right of action on the claim.”

marks omitted). 3

Id. (internal quotation

Because Lexmark did not eliminate the third-party

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 (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).

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 (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 (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.

42a

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

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

at 129, I would also find SUWA lacks standing under the

third-party standing doctrine.

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.

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.

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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.

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

44a

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 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.

45a

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 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

46a

[was] a legally protectable interest” related to the specific lands at issue in that case. Id. at 1199.3 4 In Kane

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. 2011), to argue that

anything but the narrowest title determination will impair its environmental interest, and the court appears to

adopt this reasoning, see slip op. at 20-21. 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.

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 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).

47a

Quieting title does not bring any new rights into existence or require evaluation of the public interest, it merely

clarifies already existing property rights based on historical uses.4 5 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 at

1204. This presumption applies “when the government

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”).

48a

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. 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-

49a

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-ofway 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 landmanagement policy bears little relation to how the United

States will defend title to the roads themselves.5 6 In

Insofar as the administration’s land-management policies have

excluded parts of the relevant roads from the Grand StaircaseEscalante 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

50a

some cases—such as an APA suit against federal landmanagement 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 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

States’ decision to relinquish parts of the Monument is not a possible

remedy.

51a

“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 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.

52a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

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

KANE COUNTY, UTAH; AND STATE OF UTAH,

PLAINTIFF

UNITED STATES OF AMERICA, DEFENDANT

Filed:

Aug. 21, 2018

MEMORANDUM DECISION & ORDER

District Judge CLARK WADDOUPS

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

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.

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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 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

54a

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 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.

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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.

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

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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, 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,

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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 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.

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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 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

59a

support a conclusion that one of the parties has abdicated its positions. 1 And even though 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

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.”). 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.

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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

change in the court’s prior intervention decision. Therefore, SUWA’s Motion to Intervene is DENIED.

DATED this 21st day of Aug., 2018.

BY THE COURT:

/s/ CLARK WADDOUPS

CLARK WADDOUPS

United States District Judge

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Nos. 13-4108, 13-4109 & 13-4110

KANE COUNTY, UTAH, A UTAH POLITICAL

SUBDIVISION, PLAINTIFF-APPELLANT/CROSS-APPELLEE

AND

THE STATE OF UTAH,

INTERVENOR PLAINTIFF-APPELLANT/CROSS-APPELLEE

UNITED STATES OF AMERICA,

DEFENDANT-APPELLEE/CROSS-APPELLANT

SIERRA CLUB; GRAND CANYON TRUST; NATIONAL

PARKS CONSERVATION ASSOCIATION; SOUTHERN UTAH

WILDERNESS ALLIANCE; THE WILDERNESS SOCIETY,

AMICI CURIAE

[Filed:

Dec. 2, 2014]

Appeal from the United States District Court

for the District of Utah

(D.C. No. 2:08-CV-00315-CW)

Before KELLY, BACHARACH, and PHILLIPS, Circuit

Judges.

KELLY, Circuit Judge.

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This case involves a dispute between Kane County,

Utah ( joined by the State of Utah as intervenors) and

the United States over the existence and breadth of the

County’s rights-of-way on federally owned land in

Southern Utah. We previously affirmed the denial of

intervention to the Southern Utah Wilderness Alliance,

the Wilderness Society and the Sierra Club. Kane

Cnty. v. United States, 597 F.3d 1129 (10th Cir. 2010).

On March 20, 2013, the district court issued two final orders, see Kane Cnty. v. United States, 934 F. Supp. 2d

1344 (D. Utah 2013) [hereinafter Kane I]; Kane Cnty. v.

United States, No. 2:08-cv-00315, 2013 WL 1180764

(D. Utah Mar. 20, 2013) [hereinafter Kane II], both of

which are challenged in this appeal and cross-appeal.

Our jurisdiction arises pursuant to 28 U.S.C. § 1291.

We consider five issues involving the application of the

Quiet Title Act, 28 U.S.C. § 2409a, and Section 8 of the

Mining Act of 1866, more commonly known as “Revised

Statute (R.S.) 2477.” We affirm in part, reverse in

part, and remand.

Background

In April of 2008, Kane County brought an action under the Quiet Title Act (QTA), 28 U.S.C. § 2409a, to quiet

title to five roads or road segments. It later amended

its complaint to cover a total of fifteen roads or road segments. The QTA supplies a limited waiver of sovereign

immunity for the settlement of property claims against

the United States.

Kane County asserts rights-of-way over these roads

pursuant to R.S. 2477, which states that “the right of

way for the construction of highways over public lands,

not reserved for public uses, is hereby granted.” An

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Act granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes, ch.

262, § 8, 14 Stat. 251, 253 (1866) (codified at 43 U.S.C.

§ 932), repealed by Federal Land Policy and Management Act of 1976 (FLPMA), Pub. L. No. 94-579, § 706(a),

90 Stat. 2743, 2793. R.S. 2477 was “a standing offer of

a free right of way over the public domain.” San Juan

Cnty. v. United States, 754 F.3d 787, 791 (10th Cir. 2014)

(quoting S. Utah Wilderness Alliance (SUWA) v. Bureau

of Land Mgmt., 425 F.3d 735, 741 (10th Cir. 2005)).

Though R.S. 2477 was repealed in 1976 by the FLPMA,

it preserved existing rights-of-way. 43 U.S.C. 1769(a).

On February 26, 2010, the State of Utah filed a motion to intervene as co-plaintiff and the motion was

granted. In August 2011, the district court held a nineday bench trial that included the testimony of 26 witnesses and over 160 exhibits. On March 20, 2013, the

district court issued two orders. In the first order, the

district court held it had subject matter jurisdiction under the QTA over each of the fifteen roads at issue. See

Kane I, 934 F. Supp. 2d 1344. In the second order, the

district court made findings of fact and addressed the

merits of Kane County and Utah’s claims, finding they

had proven R.S. 2477 rights-of-way on twelve of the fifteen roads at issue and setting proper widths for the

rights-of-way. See Kane II, 2013 WL 1180764. Both

orders are challenged in this appeal.

Plaintiffs-Appellants and Cross-Appellees Kane

County and Utah challenge two of the district court’s determinations. First, they argue the district court erred

in finding that Public Water Reserve 107 reserved

from the operation of R.S. 2477 two parcels of lands

crossed by Swallow Park/Park Wash Road (“Swallow

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Park Road”). Second, they contend the district court

erred in requiring that R.S. 2477 rights-of-way be proven

against the United States by clear and convincing evidence.

Defendant-Appellee and Cross-Appellant United States

also raises two issues. First, it contends the district

court lacked jurisdiction over Kane County’s claims regarding the Sand Dunes, Hancock and four Cave Lakes

roads because of the absence of a “disputed title to real

property in which the United States claims an interest,”

28 U.S.C. § 2409a(a), a prerequisite to federal court jurisdiction under the QTA. Second, the United States

contends the district court erred in determining the

widths of Plaintiffs’ rights-of-way on Swallow Park

Road, North Swag Road, and Skutumpah Road.

Additionally, amici Southern Utah Wilderness Alliance (SUWA), the Wilderness Society and the Sierra

Club (collectively “amici”) contend the district court

lacked jurisdiction over Kane County’s R.S. 2477 claim

to North Swag Road because the QTA’s limitations period had already run. This issue pertains to subject matter jurisdiction, a matter “essential to this court’s review,”

which we would address “without regard to whether the

parties dispute its existence.” Elliot Indus. Ltd. P’ship

v. BP Am. Prod. Co., 407 F.3d 1091, 1104 (10th Cir.

2005). Accordingly, we address it alongside the jurisdictional arguments raised by the United States.

The issues before this court thus implicate nine roads:

Sand Dunes Road, Hancock Road, the four Cave Lakes

roads (denominated as K1070, K1075, K1087 and K1088),

Swallow Park Road, North Swag Road and a portion of

Skutumpah Road. The facts regarding these roads are

discussed as they are pertinent to each issue.

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Discussion

A. Quiet Title Act Jurisdiction

The United States and amici contend the district

court lacked subject matter jurisdiction over certain of

the QTA claims. The United States contends Kane

County brought claims to roads on which no “disputed

title” existed and amici contend Kane County brought

claims to roads on which the QTA limitations period had

run. The district court rejected these arguments, and

we review its determinations de novo. See Rio Grande

Silvery Minnow v. Bureau of Reclamation, 599 F.3d

1165, 1175 (10th Cir. 2010).

The United States cannot be sued absent a waiver of

sovereign immunity. See Block v. North Dakota ex rel.

Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280 (1983). A

waiver of sovereign immunity “cannot be implied but

must be unequivocally expressed.” United States v.

King, 395 U.S. 1, 4 (1969). The QTA provides such a

waiver:

The United States may be named as a party defendant in a civil action under this section to adjudicate a

disputed title to real property in which the United

States claims an interest.

28 U.S.C. 2409a(a) (emphasis added). The QTA provides the “exclusive means by which adverse claimants

[can] challenge the United States’ title to real property.”

Block, 461 U.S. at 286. District courts are granted jurisdiction over § 2409a suits under 28 U.S.C. § 1346(f ).

Thus, for a court to have jurisdiction over a QTA

claim, the plaintiff must establish that: (1) the United

States “claims an interest” in the property at issue; and

(2) title to the property is “disputed.” See Leisnoi, Inc.

66a

v. United States (Leisnoi II), 267 F.3d 1019, 1023 (9th

Cir. 2001). 1 The district court found these two elements

satisfied as to each of the fifteen roads at issue. The

United States argues that the grounds on which the

court found “disputed title” to Sand Dunes, Hancock

and the four Cave Lakes roads were insufficient under

§ 2409a(a).

The issue of what is required to satisfy the QTA’s

“disputed title” requirement is one of first impression in

this circuit. In interpreting § 2409a(a), we begin with

the established principle that waivers of sovereign immunity are to be read narrowly and conditions on the

waiver are to be “strictly observed.” Block, 461 U.S. at

287; see also Mills v. United States, 742 F.3d 400, 405

(9th Cir. 2014) (“In construing the scope of the QTA’s

waiver, we have read narrowly the requirement that the

title at issue be ‘disputed.’ ”).

The parties rely on a pair of Ninth Circuit cases analyzing the scope of § 2409a(a)’s waiver of sovereign immunity. In Alaska v. United States, Alaska’s title to

the Kandik, Nation and Black rivers depended upon

whether the rivers were navigable at the date Alaska obtained statehood. 201 F.3d 1154, 1156-57 (9th Cir. 2000).

QTA jurisdiction thus hinged on whether the United

Though some courts appear to combine the two QTA elements

into one, see, e.g., Alaska v. United States, 201 F.3d 1154, 1160 (9th

Cir. 2000) (analyzing the issue as whether the United States

“claim[ed] an interest”); Mills v. United States, 742 F.3d 400, 405

(9th Cir. 2014) (relying on Alaska but analyzing the issue simply as

whether a “disputed title” exists), most courts appear to follow

Leisnoi II and analyze the elements separately, as did the district

court. See, e.g., Mich. Prop. Ventures, LLC v. United States, No.

14-10215, 2014 WL 2895485, at *4-6 (E.D. Mich. June 26, 2014).

67a

States had claimed an interest in the rivers by asserting

they were not navigable at the time of statehood. Before the district court, the United States refused to admit or deny Alaska’s allegations that the rivers were

navigable at statehood. Despite the United States’

failure to formally claim an interest in the case at hand,

the Ninth Circuit found it had claimed an interest in the

Kandik and Nation rivers. The court relied upon the

Unites States’ previous assertion before an administrative law judge that the rivers were not navigable at

statehood, explaining that this past assertion created a

“present cloud on the state’s title.” Id. The court expressed a preference against allowing potential federal

claims to “lurk over the shoulder of state officials as they

try to implement a coherent management plan” for the

state’s waterways. Id. at 1161. However, the court

found no QTA jurisdiction over the Black River because

the United States never “expressly asserted a claim” to

it. Id. at 1164.

Though Alaska dealt with whether the United States

“claimed an interest” in the rivers, other Ninth Circuit

cases have applied this “cloud on title” standard to the

“disputed title” element of § 2409a(a). See Leisnoi II,

267 F.3d at 1024 (holding the “disputed title” requirement of the QTA can be satisfied by a third-party’s assertion of an interest of the United States that “clouds

the plaintiff ’s title”); Leisnoi, Inc. v. United States

(Leisnoi I), 170 F.3d 1188, 1192 (9th Cir. 1999). However, more recently in Mills, the Ninth Circuit did not

reference the “cloud on title” standard and emphasized

that the “disputed title” requirement must be “read narrowly.” 742 F.3d at 405. In Mills, a miner sought access to a mine site over an R.S. 2477 right-of-way and

brought suit under the QTA. Id. at 403-05. The court

68a

found no “disputed title” where land management agency

officials had previously denied the plaintiff ’s petitions

for a right-of-way on the grounds that they lacked the

legal authority to grant the petition. Id. at 405-06.

The court explained that the United States had not “expressly dispute[d]” the plaintiff ’s title, nor had it “taken

an action that implicitly disputes” the title. Id.

To the extent the Ninth Circuit still utilizes a “cloud

on title” standard, we would reject it as incompatible

with the rule that conditions on a waiver of sovereign

immunity are to be specifically observed. See Block,

461 U.S. at 287. The “cloud on title” standard provides

little guidance to parties as to what constitutes a title

dispute and could lead federal courts to issue advisory

opinions. Instead, we hold that to satisfy the “disputed

title” element of the QTA, a plaintiff must show that the

United States has either expressly disputed title or

taken action that implicitly disputes it.

Under this standard, a plaintiff need not show the

United States took direct action to close or deny access

to a road—indirect action or assertions that actually conflict with a plaintiff ’s title will suffice. Nor is the United

States shielded by sovereign immunity where it previously disputed a plaintiff ’s title but does not do so presently. Cf. Alaska, 201 F.3d at 1162. Thus, concerns

about potential claims “lurk[ing] over the shoulder of

state officials” are ameliorated. Id. at 1161. However, actions of the United States that merely produce

some ambiguity regarding a plaintiff ’s title are insufficient to constitute “disputed title.” This accords with

both the purpose of the QTA—allowing parties to settle

disputes with the United States over land—and the

69a

principle that waivers of sovereign immunity are construed narrowly.

We now turn to each of the roads at issue in this appeal.

Sand Dunes and Hancock Roads

Sand Dunes Road is a 20-mile road running from the

Utah-Arizona border to Utah State Highway 89. Near

Sand Dunes is Hancock Road, a paved, two-lane road

roughly ten miles in length. Both roads fall within the

land administered by the Kanab Field Office, a branch

of the Bureau of Land Management (BLM).

On October 31, 2008, the Kanab Field Office released

the Kanab Field Office Management Plan (“the Plan”).

Kane I, 934 F. Supp. 2d at 1353. The Plan provides

guidance for the management of roughly 554,000 acres

of land administered by the BLM and was based on “a

complete route inventory in 2005 and 2006.” Id. It

specifies that “[n]atural and cultural resource protection is

. . .

accomplished by limiting motorized

travel to the routes designated.” Id. However, the

Plan explicitly states it “does not affect valid existing

rights” and “does not adjudicate . . . or otherwise

determine the validity of claimed rights-of- way.” Id.

(emphasis added).

Map 9 of the Plan identifies areas that are open to

cross-country, motorized vehicle use, closed to such use,

or open only on designated routes. Hancock and Sand

Dunes roads fall in an area where off-highway vehicle

use is “Limited to Designated Open Roads and Trails.”

Id. Map 10 of the Plan shows which routes in the designated area are open, closed, or limited for motor vehi-

70a

cle use. Hancock and Sand Dunes roads are not identified in Map 10. On January 30, 2009, after Kane County

filed its amended complaint to include these roads, BLM

published additional maps on its website identifying

Hancock and Sand Dunes roads as “Class 3 primary

roads,” a term used to denote major thoroughfares.

The changes to the maps were not the product of a formal amendment process. Id.

The district court found that the Plan’s omission of

Hancock and Sand Dunes roads from the initial maps

had the practical effect of closing the roads. Id. at

1357. Because the republished maps were not the product of a formal amendment process, the court held that

an “ambiguity” existed as to the legal status of the roads,

creating a “cloud on title” sufficient for jurisdiction under § 2409a(a). Id. at 1354, 1358. We disagree.

The effect of the Plan’s omission of Sand Dunes and

Hancock roads is at best ambiguous and insufficient to

create a disputed title under § 2409a(a). The Plan explicitly declared it did not adjudicate or affect rights-ofway. Further, though the Plan marked certain roads

as closed, Hancock and Sand Dunes were not marked as

closed; they simply were not marked at all. Though a

provision of the Plan suggested travel was limited to

designated routes, the effect of this provision is unclear,

as the United States took no action to limit travel to such

routes. Regardless of whether the United States was

entitled to clarify the original maps with additional maps

online, see id. at 1357-58, the original maps did not amount

to a disputed title. The district court was correct in

concluding an “ambiguity exist[ed] regarding the legal

status of the roads,” id. at 1354; however, this ambiguity

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is insufficient to constitute a “disputed title” under

§ 2409a(a).

Kane County relies upon several other grounds for

finding a “disputed title” to the Sand Dunes, Hancock

and four Cave Lakes roads that were not addressed by

the district court. Kane Reply Br. 9-17. The County

does not explain how any of these grounds create a “disputed title” to Sand Dunes, Hancock or the Cave Lakes

roads specifically, and so we find its argument without

merit. Thus, we reverse the district court and find it

had no jurisdiction over the QTA claims to Sand Dunes

and Hancock roads.

The Four Cave Lakes Roads

The United States’ Answer

The Cave Lakes roads (denominated as K1070,

K1075, K1087 and K1088) are four short roads in southwestern Kane County crossing BLM-administered land.

All four were designated as “open” under the Kanab

Field Plan. Kane I, 934 F. Supp. 2d at 1354. Paragraph 29 of Kane County’s amended complaint stated:

“After 1866 and prior to the repeal of R.S. 2477 on October 21, 1976, Kane County, by and on behalf of the public, accepted R.S. 2477 rights-of-way for . . . the

Cave Lakes roads.” JT App. 41. The United States’

answer as to this paragraph stated: “The allegations

. . . are legal conclusions to which no responsive pleading is required. To the extent a responsive pleading is

required, the United States lacks sufficient information

to form a belief as to the truth of the allegations.” Id.

at 113. Under Fed. R. Civ. P. 8(b)(5), this response is

treated as a denial. The district court found this denial

of the allegations created a “disputed title” sufficient for

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jurisdiction under the QTA.

1358. We disagree.

Kane I, 934 F. Supp. 2d at

The district court likened the United States’ answer

to Alaska, where the Ninth Circuit held that a past claim

of interest before an administrative law judge as to the

Nation and Kandik Rivers amounted to a present

201 F.3d at 1162.

“cloud” on the plaintiff ’s title.

However, Alaska itself found no jurisdiction over the

QTA claim to the Black River where, as here, the United

States refused to admit or deny allegations of the river’s

navigability at the pleading stage because the allegations “consist[ed] of conclusions of law not requiring an

answer.” Id. at 1163-65. Alaska thus suggests that a

failure to admit allegations cannot alone suffice to show

a “disputed title” under § 2409a(a). Though a disclaimer

of title by the United States does operate to remove the

jurisdiction of the court under the QTA, see 28 U.S.C.

§ 2409a(e), a disclaimer is not necessary for the United

States to challenge jurisdiction under § 2409a(a). See

Leisnoi I, 170 F.3d at 1192 (“Subsection (a) is the one

that confers jurisdiction. . . . Nothing in subsection

(e) qualifies those requirements.”). Moreover, as a

practical matter, requiring the United States to either

admit allegations or waive sovereign immunity under

§ 2409a(a) would place a tremendous and unfair burden

upon it at the pleading stage. Thus, we conclude the

United States’ answer is insufficient to constitute a “disputed title” under § 2409a(a).

The United States’ Grant of Title V Permits

As to three of the Cave Lakes roads (K1070, K1075

and K1087), the district court found that the BLM’s

grant of Title V permits to private entities provided an

additional ground for “disputed title” under § 2409a(a).

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On July 25, 2008, the BLM issued Title V permits to a

private entity to use these three roads. Supp. App.

337-55. The Title V permits grant the right to “construct, operate, maintain, and terminate an access road

for the purpose of accessing private property on public

lands.” Id. at 337. The permits state that roads must

be “surfaced to specifications set by Kane County for a

subdivision road and to Kane County standards for subdivision roads with a travel surface of 28 feet.” Id. at

338. The permits are “not intended to extinguish or

limit any R.S. 2477 right-of-way,” and if an R.S. 2477

right-of-way was found by a court or the Secretary of

the Interior, the permit “would be superseded thereby.”

Id. The district court held these permits “conflict[ed]

with Kane County’s ability to manage its alleged rightsof-way” and thus amounted to a dispute of title under

2409a(a). Kane I, 934 F. Supp. 2d at 1358. We disagree.

Nothing about the grant of Title V permits to third

parties expressly or implicitly disputes Kane County’s

right-of-way. “Easements and servient estates can (and

usually do) peaceably coexist.” George v. United States,

672 F.3d 942, 947 (10th Cir. 2012). Here, the permits

require that the roads be maintained in accordance with

Kane County standards. Further, like the Kanab Field

Plan, the Title V permits state they do not affect R.S.

2477 rights-of-way; even more, they explicitly state they

are “superseded” by any R.S. 2477 rights-of-way. The

permits, if anything, seem a deliberate attempt not to

dispute Kane County’s title.

To be sure, “owners of the dominant and servient estates ‘must exercise [their] rights so as not unreasonably to interfere with the other.’ ” S. Utah Wilderness

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Alliance (SUWA) v. Bureau of Land Mgmt., 425 F.3d

735, 746 (10th Cir. 2005) (quoting Big Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148, 158 (Utah 1946)).

But, Kane County has produced no evidence as to how

the permits interfered with any development plans.

Absent such evidence, we must conclude that the Title V

permits do not create a “disputed title” under § 2409a(a).

Thus, as to all four of the Cave Lakes Roads (K1070,

K1075, K1087 and K1088) we reverse the district court’s

finding of jurisdiction under the QTA.

North Swag Road - QTA Limitations Period

Amici contend that the district court lacked jurisdiction over Plaintiffs’ R.S. 2477 claim to North Swag Road

because the QTA’s limitations period had already run.

The district court found that the limitations periods had

not run, Kane I, 934 F. Supp. 2d at 1360-64, and the

United States has not challenged this finding on appeal.

At an earlier stage of litigation, the United States in fact

conceded the QTA limitations period had not run. See

Kane Cnty. v. United States, No. 2:08-CV-00315, 2011

WL 2489819, at *7 (D. Utah June 21, 2011). Nevertheless, the QTA’s limitations period is a jurisdictional bar,

see Rio Grande Silvery Minnow, 599 F.3d at 1175-76,

and thus we address it.

As discussed above, the QTA provides the exclusive

means by which claimants can challenge the United

States’ title to real property. But, “what the QTA gives

it often proceeds to take away.” George, 672 F.3d at

944. The QTA provides two limitations provisions, one

for non-states and one for states. Section 2409a(g), applicable to non-states including counties, provides:

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Any civil action under this section, except for an action brought by a State, shall be barred unless it is

commenced within twelve years of the date upon

which it accrued. Such action shall be deemed to

have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the

claim of the United States.

28 U.S.C. § 2409a(g). Thus, the twelve-year limitations

period for non-states is triggered when a party knows or

should know of a claim of the United States.

As to states, the QTA provides that for land on which

the United States has made “substantial improvements”

or has “conducted substantial activities pursuant to a

management plan,” actions are barred unless commenced

“within twelve years after the date the State received

notice of the Federal claims to the lands.” Id. § 2409a(i).

“Notice” for states must be either by public communications “sufficiently specific as to be reasonably calculated

to put the claimant on notice of the Federal claim to the

lands” or “by the use, occupancy, or improvement of the

claimed lands which, in the circumstances, is open and

notorious.” Id. § 2409a(k)(1)-(2). Both the 2409a(g)

and 2409a(i) standards are relevant here, as amici argue

the limitations periods ran on both Kane County and

Utah’s QTA claims.

In interpreting the QTA’s limitations provisions, we

begin again with the familiar proposition that waivers of

sovereign immunity are construed narrowly and conditions upon the waiver strictly observed. Block, 461

U.S. at 287. This court has held that the trigger for

starting the QTA limitations period is an “exceedingly

light one.” George, 672 F.3d at 944. A “range war” is

not required, and plaintiffs cannot wait until the United

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States’ claims to title “crystallize into well-defined and

open disagreements.”

Id. at 946-47 (quoting Rio

Grande Silvery Minnow, 599 F.3d at 1188). Concrete

action by the United States is not required; “[a]ll that is

necessary is a reasonable awareness that the Government claims some interest adverse to the plaintiff ’s.”

Knapp v. United States, 636 F.2d 279, 283 (10th Cir.

1980). Thus, though “[k]nowledge of the claim’s full

contours” is unnecessary, id., the plaintiff must be on

notice of an adverse interest asserted by the government. George, 672 F.3d at 946.

This court recently explained in San Juan County v.

United States that in order to trigger the QTA limitations period against a party claiming an R.S. 2477 rightof-way, the United States must claim “exclusive control”

of a road. 754 F.3d 787, 793 (10th Cir. 2014); see also

McFarland v. Norton, 425 F.3d 724, 727 (9th Cir. 2005)

(requiring an exclusive claim to trigger the QTA limitations period against a party claiming a right-of-way);

Michel v. United States, 65 F.3d 130, 132 (9th Cir. 1995)

(same). As a public right-of-way can generally “peaceably coexist” with an underlying ownership interest, see

George, 672 F.3d at 947, the United States must provide

a county or state with “sufficient notice of the United

States’ claim of a right to exclude the public.” San

Juan Cnty., 754 F.3d at 794.

Amici contend that two events triggered the QTA

limitations periods: (1) the BLM’s 1980 designation of

the Paria-Hackberry Wilderness Study Area and publication of this designation in the Federal Register; and

(2) a 1991 meeting of the Kane County Commissioner

with BLM representatives to discuss the procedures

necessary for obtaining recognition of R.S. 2477 rights-

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of-way. The district court found these events insufficient to trigger the QTA limitations period, and we review its determinations de novo. See Rio Grande Silvery Minnow, 599 F.3d at 1175.

a. The 1980 Designation of the Paria-Hackberry

WSA

In 1976, as part of a “statutory sea change,” Congress

passed the Federal Land Policy and Management Act

(FLPMA), initiating a “conservation and preservation”

approach to federal land management. SUWA, 425

F.3d at 741. Pursuant to the FLPMA, the Secretary of

the Interior was directed to conduct an inventory of

“those roadless areas of five thousand acres or more” to

determine which areas had wilderness characteristics as

defined by the Wilderness Act. 43 U.S.C. § 1782(a).

An area of wilderness was defined to mean “an area of

undeveloped Federal land retaining its primeval character and influence, without permanent improvements or

human habitation.” 16 U.S.C. § 1131(c).

On November 14, 1980, the BLM published its Final

Intensive Inventory Decision for Utah in the Federal

inventory designated Paria-Hackberry, which encompassed North Swag Road, as a Wilderness Study Area

(WSA). Upon designation of land as a WSA, the Secretary of the Interior is directed to manage such lands

“in a manner so as not to impair the suitability of such

areas for preservation as wilderness” and to “take any

action required to prevent unnecessary or undue degradation of the lands and their resources.” 43 U.S.C.

§ 1782(c). This standard requires the BLM to “ensure

that an area’s existing wilderness values are not de-

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graded” in a manner that might threaten the WSA’s designation as protected wilderness. Interim Management Policy and Guidelines for Land Under Wilderness

Review (IMP), 44 Fed. Reg. 72,014 (Dec. 12, 1979).

Though the FLPMA applies to “roadless” areas, a

“road” for purposes of the Wilderness Act is not coterminous with a “road” under R.S. 2477. The same year

the BLM designated the Paria-Hackberry WSA, the

BLM Director for Utah issued a memorandum stating

the following:

The wilderness inventory process uses a definition of

a road that is distinct from the definition of “public”

road contemplated by R.S. 2477 (43 USC 932) and is

a definition for inventory purposes only, not for establishing rights of counties, etc. A determination

that an area should not be excluded from wilderness

review because the area does not have any “roads” as

defined in the Bluebook is not a determination that a

road is or is not a “public” road. This is a factual determination that does not relate to wilderness. . . .

Instruction Memorandum No. UT ‘80-240 (Mar. 6, 1980),

JT App. 2300-01. A subsequent nationwide BLM memorandum stated that where WSAs overlap with R.S.

2477 rights-of-way, “the WSA/wilderness designation is

subject to the terms and conditions of the pre-existing

R/W grant.” Instructional Memorandum No. 90-589

(Aug. 15, 1990), JT App. 2295; see also id. at 2296 (noting

that R.S. 2477 rights-of-way “may in fact exist within a

WSA”); IMP, 44 Fed. Reg. 72,015 (WSAs “shall be subject to valid existing rights”). Moreover, an opinion

from the Secretary of the Interior shortly after the

Paria-Hackberry WSA designation explained that valid

existing rights, including rights-of-way, were excepted

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from the non-impairment requirements of 43 U.S.C.

§ 1782(c). See United States Dep’t of the Interior Solicitor’s Opinion M-36910, 88 I.D. 909, 1981 WL 29226

(Oct. 5, 1981). In light of this evidence, the district court

found that the Paria-Hackberry designation did not constitute an adverse claim to North Swag and was thus insufficient to trigger the QTA limitations period.

Amici argue the designation of Paria-Hackberry as a

WSA and publication of this designation were sufficient

to give Kane County and Utah notice of the claim of the

United States. They contend this claim was adverse to

the rights of Kane County and Utah because the WSA

designation meant that the land was to remain “roadless” and imposed upon the BLM a duty to manage the

roads on a non-impairment standard that conflicted with

any claimed R.S. 2477 rights-of-way. SUWA Br. 22-31.

Amici are correct that publishing an interest in the

Federal Register is sufficient to give notice to affected

parties. See George, 672 F.3d at 944 (quoting 44 U.S.C.

§ 1507). However, as the district court recognized, publication in the Federal Register is sufficient notice to

trigger the limitations period only where the published

notice conflicts with a plaintiff ’s interest. Kane I, 934

F. Supp. 2d at 1362. Thus, if the published interest does

not amount to a claim that a plaintiff lacks R.S. 2477

rights-of-way within a WSA, the limitations period is not

triggered. As San Juan County explained, in the context of R.S. 2477 claims, a published claim by the United

States must amount to a claim of “exclusive control” to

trigger the QTA limitations period. 754 F.3d at 794.

Thus, the determinative issue is whether the PariaHackberry designation amounted to a claim of exclusive

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control or whether it permitted the United States’ ownership interest and the Plaintiffs’ right-of-way to “peaceably coexist.” George, 672 F.3d at 947.

We conclude the Paria-Hackberry designation was

insufficient to trigger QTA limitations periods against

Kane County and Utah. The fact that the Wilderness

Act covers “roadless” areas is inapposite, as the definitions for roads under the Wilderness Act and R.S. 2477

are not the same. Nor is the non-impairment standard

by which the BLM was to manage the WSA sufficient to

amount to a claim to North Swag road. As a preliminary matter, the Department of the Interior itself did

not believe the non-impairment standard served to limit

valid existing rights, including rights-of-way. See Solicitor’s Opinion M-36910, supra. Even if the nonimpairment standard did apply to R.S. 2477 rights-ofway, amici have not shown how this would amount to a

claim by the United States of “exclusive control” over

North Swag.

Several other BLM memoranda, both contemporaneous with and subsequent to the 1980 wilderness designation, strongly suggest that wilderness designations do

not preclude the recognition of R.S. 2477 rights-of-way.

The 1980 Instruction Memorandum issued by the Utah

BLM Director, which preceded the Paria-Hackberry

wilderness designation, establishes that the BLM did

not believe wilderness designations rendered an area

“roadless” for R.S. 2477 purposes. The 1990 BLM Memorandum stated with even greater clarity that wilderness designations are “subject to the terms and conditions” of pre-existing rights-of-way. JT App. 2295.

Amici cast these BLM documents as an attempt to “un-

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ring the bell” that the 1980 Paria-Hackberry designation “chimed,” especially given their status as informal

agency pronouncements. See SUWA Br. 29; SUWA

Reply Br. 16 (citing Spirit Lake Tribe v. North Dakota,

262 F.3d 732, 741-42 (8th Cir. 2001); Kingman Reef Atoll

Invs., LLC v. United States, 541 F.3d 1189, 1200 (9th

Cir. 2008)). But unlike the cases amici cite, the BLM

memoranda are not meant to unring the bell, but to show

the bell never rang in the first place. If the BLM did

not believe wilderness designations conflicted with

rights-of-way within the land, it would be strange indeed

to declare that Kane County or Utah should have.

This court’s analysis in San Juan County provides

further support for our decision. There, San Juan

County and Utah brought several QTA claims against

the United States, who argued that the § 2409a limitations periods had run. As to the County’s claim, the

court rejected the United States’ contention that the

closures of two different segments of the same road

amounted to an adverse claim to the road at issue. San

Juan Cnty., 754 F.3d at 793-94. More pertinent here,

the court explained that as to Utah’s claim, the United

States failed to show that either the road closures or “a

variety of other park management activities,” including

“the National Park Service’s 1970 recommendation that

the upper canyon be designated as wilderness,” amounted

to notice of a claim adverse to Utah’s claimed right-ofway. Id. at 796. Because these management activities left the road “fully accessible to the public,” they did

not suffice to trigger the limitations period. 2 Id.

We read San Juan County to be in line with our precedent holding that a “range war” or physical actions to “enforce” a claim are unnecessary to trigger the QTA’s limitations clock. George, 672 F.3d

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Similarly here, the BLM took no action to deny

the public access to North Swag Road. See Kane I, 934

F. Supp. 2d at 1362. Nor have amici established that

any of the BLM’s management responsibilities pursuant

to the wilderness designation were inconsistent with

Kane County or Utah’s right-of-way on North Swag.

Amici cite three district court opinions for the proposition that the publication of a wilderness designation

suffices to trigger the QTA limitations periods. See

SUWA Br. 24 (citing S.W. Four Wheel Drive Assoc. v.

Bureau of Land Mgmt., 271 F. Supp. 2d 1308, 1312

(D.N.M. 2003), aff ’d on other grounds, 363 F.3d 1069,

1070 (10th Cir. 2004); Bd. of Comm’rs of Catron Cnty. v.

United States, 934 F. Supp. 2d 1298, 1306 (D.N.M. 2013);

Cnty. of Inoyo v. Dep’t of Interior, No. CV F 06-1502

AWI DLB, 2008 WL 4468747 (E.D. Cal. Sept. 29, 2008)).

These cases ignore the distinction—acknowledged by

the BLM itself—between “roads” for the purpose of the

Wilderness Act and “roads” under R.S. 2477. See Bd.

of Comm’rs of Catron Cnty., 934 F. Supp. 2d at 1304-07;

S.W. Four Wheel Drive, 271 F. Supp. 2d at 1310-12.

Moreover, these cases are unpersuasive in light of this

court’s decision in San Juan County.

Thus, we conclude the designation of the PariaHackberry WSA and publication of this designation in

the Federal Register were insufficient to trigger the

limitations period against Kane County under § 2409a(g)

at 946. The San Juan County court ultimately concluded that the

QTA was not triggered because Salt Creek Road remained open to

the public, but left room for the possibility that “management activities [that] were inconsistent with the claimed right-of-way” could

provide the necessary notice to start the limitations period. 754

F.3d at 794.

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and Utah under § 2409a(i). Because we find Utah was

not reasonably aware of an adverse claim by the United

States, we need not address whether the United States

“conducted substantial activities” or “made substantial

improvements” to the land under § 2409a(i).

The 1991 Meeting of the Board of Commissioners

Next, amici contend the County received notice of the

United States’ adverse claim to North Swag in 1991,

when BLM officials met with County officials to inform

them of the necessary procedures for obtaining recognition of R.S. 2477 rights-of-way. SUWA Br. 26. This

meeting was brought about by the Secretary of the Interior’s December 7, 1988 statement that it was “necessary in the proper management of Federal land to be

able to recognize with some certainty the existence, or

lack thereof, of public highway grants obtained under

R.S. 2477.” Kane I, 934 F. Supp. 2d at 1361. Nothing

in the minutes of these meetings amounts to an adverse

claim by the United States. That some commission

members recognized a need to quiet title to R.S. 2477

rights-of-way does not establish that Kane County had

reasonable awareness of an adverse claim of the United

States. Thus, we affirm the district court’s decision

finding jurisdiction over North Swag Road under the

QTA.

B. PWR 107 and Lands Reserved for Public Uses

Under R.S. 2477

R.S. 2477 rights-of-way can only be established over

public lands “not reserved for public uses.” SUWA, 425

F.3d at 784 (emphasis added). The district court concluded that Public Water Reserve (PWR) 107, a 1926 executive order, operated to “reserve” from the operation

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of R.S. 2477 two parcels of land across which Swallow

Park Road runs. Kane II, 2013 WL 1180764, at *58-59.

We disagree.

At the start of the twentieth century, monopolization

of public water sources in the West had become a significant problem. See The Classification of the Public

Lands, U.S. Geological Survey Bull. 537, at 42-43 (1913).

“Water controlled the range,” and it became common

practice for a landowner to file land scrips upon all water

springs in a district, effectively allowing him to exclude

all competition. See James Muhn, Public Water Reserves: The Metamorphosis of a Public Land Policy,

21 J. Land Resources & Envtl. L. 67, 68, 81 (2001) (citation omitted). This practice led to regular struggles

for possession of watering holes and eventually garnered the attention of Congress and federal land agencies.

In 1910, Congress enacted the Pickett Act (or General Withdrawal Act) granting the President authority

to make withdrawals for “water-power sites, irrigation,

classification of lands, or other public purposes.” Act

of June 25, 1910, ch. 421, 36 Stat. 847 (emphasis added). 3

Pursuant to the “other public purposes” language of the

The Act additionally provided that withdrawn lands “shall at all

times be open to exploration, discovery, occupation, and purchase

under the mining laws of the United States, so far as the same apply

to metalliferous minerals.” 37 Stat. 947. Kane County argues

that because R.S. 2477 was enacted as Section 8 of the Mining Act of

1866, which (in other provisions) dealt with metalliferous minerals,

R.S. 2477 is a “mining law” that “appl[ies] to metalliferous minerals.”

Kane Br. 15-16. We reject this argument and conclude that the mere

coincidence of R.S. 2477’s location in a law that later came to be

known as the Mining Act of 1866 is insufficient to bring it within the

Pickett Act’s exception.

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Pickett Act, in 1912 President Taft signed what became

Public Water Reserve No. 1, a withdrawal order for

16,200 acres covering roughly 32 watering springs in

Western Utah. Similar withdrawals of federal land

containing water came in a somewhat piecemeal fashion.

Opponents of these withdrawals, such as Congressman

Frank Mondell of Wyoming, were concerned they might

interfere with settlement and acquisition of land in the

West. Department of the Interior Secretary Walter Fisher,

in defense of the policy, assured Congressman Mondell

that the withdrawals did “not mean that [the water

sources] are reserved from private uses; on the contrary, it means that those private uses are encouraged

and permitted.” Muhn, supra, at 85-86.

In the face of uncertainty regarding the legal authority for such withdrawals, Congress in 1916 passed the

Stock-Raising Homestead Act (SRHA), Section 10 of

which provides:

[L]ands containing water holes or other bodies of water needed or used by the public for watering purposes . . . may be reserved under the provisions

of the [Pickett Act] and such lands heretofore or

hereafter reserved shall, while so reserved, be kept

and held open to the public use for such purposes and

under such general rules and regulations as the Secretary of the Interior may prescribe. . . .

Act of Dec. 29, 1916, ch. 9, 39 Stat. 862, 865 (codified at

43 U.S.C. §§ 291 et seq.), repealed by FLPMA.

Pursuant to the SRHA and Pickett Act, in 1926 President Calvin Coolidge signed PWR 107, which provides:

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[I]t is hereby ordered that every smallest legal subdivision of the public-land surveys which is vacant unappropriated unreserved public land and contains a

spring or water hole, and all land within one quarter

of a mile of every spring or water hole located on unsurveyed public land be, and the same is hereby,

withdrawn from settlement, location, sale, or entry,

and reserved for public use in accordance with the

provisions of [the SRHA] and in aid of pending legislation.

Public Water Reserve No. 107 (Apr. 17, 1926). Unlike

prior withdrawals of water, PWR 107 was a “blanket”

withdrawal. Muhn, supra, at 110.

In sending the order to the President, the Secretary

of the Interior explained:

The control of water in the semiarid regions of the

west means control of the surrounding areas. . . .

Private parties have used various lieu selection and

scrip acts as a vehicle of acquiring small areas surrounding these springs and water holes, thus withdrawing them from the common use of the general

public . . . and for this reason . . . it is believed advisable to make a temporary general order

of withdrawal.

Letter from Hubert Work, U.S. Sec’y of the Interior, to

President Calvin Coolidge (Apr. 17, 1926).

In 1929, the Secretary of the Interior construed PWR

107 to include, inter alia, two parcels of land through

which Swallow Park Road crosses. It is undisputed

that the Secretary properly determined that PWR 107

applies to these parcels. Thus, the issue before this

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court is whether the two parcels were “reserved for public use”—thus preventing the operation of R.S. 2477—or

merely “withdrawn.”

The distinction between a reservation and a withdrawal for purposes of R.S. 2477 was set forth by this

court in Southern Utah Wilderness Alliance (SUWA) v.

Bureau of Land Management, 425 F.3d 735, 784-86 (10th

Cir. 2005). The court in SUWA addressed whether the

Coal Withdrawal of 1910, which stated that certain federal lands were “withdrawn from settlement, location,

sale or entry, and reserved for classification and appraisement with respect to coal values,” operated to “reserve” those lands for public use under R.S. 2477. Id.

at 784 (emphasis added). The court explained that a

withdrawal merely “ma[de] land unavailable for certain

kinds of private appropriation,” whereas a reservation

“not only withdraws the land from the operation of the

public lands laws, but also dedicates the land to a particular public use. Id. (emphasis added). Further, “just

because a withdrawal uses the term ‘reserved’ does not

mean that it reserves land ‘for public uses.’ ” Id. at 785.

The court found that despite the coal withdrawal’s

language, it did not reserve the land at issue “for public

use.” The historical context of the coal withdrawal established that it “narrowly, and temporarily, removed

potential coal lands from certain kinds of private appropriation.” Id. at 785. The land was withdrawn to

allow the United States to “reexamine and reclassify

lands which it thought might have exceptional value”—

insufficient, in the court’s view, to amount to a reservation. Id. (citation omitted). Further, common sense

dictated that the withdrawal, which permitted widespread

settlement under public law, “was not meant to cut off

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the right to establish access to those claims.” Id. at

786. “[I]t would make little sense for Congress to open

public lands to private claims but forbid settlers to construct highways to access those claims.” Id.

Whether PWR 107 “reserves” land for “public use”

presents a closer question than the coal withdrawal at

issue in SUWA. PWR 107 goes beyond the mere temporary appropriation SUWA found the Coal Withdrawal

to be. Further, PWR 107 withdrew land to “be kept

and held open to the public” for “watering purposes” under the SRHA—certainly more of a “public use” than

withdrawing lands for reclassification and appraisal.

However, SUWA explained that a reservation must set

aside land for a specific public purpose—such as a park,

military post, or Native American land—and PWR 107

simply set aside land for the general purpose of preserving water access to the public. See id. at 784 (citing

63C Am. Jur. 2d Public Lands § 31 (2005)).

Determinative here is the fact that if PWR 107 did in

fact operate to “reserve” land from the operation of R.S.

2477, its effect was the precise opposite of its purpose.

PWR 107 sought to prevent private appropriation and

monopolization of water sources in order to guarantee

public access to these water sources. If PWR 107 “reserved” land from R.S. 2477, the sole means for the public to construct roads to access these water sources would

be eliminated. See id. at 786 (“R.S. 2477 was essentially the only authority by which highways could be established across public lands by state and local governments.” (quoting BLM in previous litigation)). As in

SUWA, it would be nonsensical for Congress and the

President to preserve the public’s access to watering

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springs “but forbid settlers to construct highways to access” these springs. Id. at 786. That Congress or the

President intended to set aside this land for public watering purposes yet silently deny the public the right-ofway to access it is highly improbable.

The United States suggests that R.S. 2477 rights-ofway are not the only ways for the public to access watering holes reserved under PWR 107 and suggests three

alternatives. First, it contends that the 1925 Department of Interior regulation Circular No. 1028 “fully protected public access to water sources.” Aplee. Br. 56.

But Circular No. 1028 merely allowed citizens to apply

for a permit to “improve the productivity of any water

hole or source of water supply” within a reserve or “conduct such waters from their source within a reserve to a

point or place more convenient for public use”; the regulation does not provide for general public access to use

the sources. See Supp. App. 103. Next, the United

States points to federal regulations setting forth procedures for obtaining a right-of-way across reserved lands.

Aplee. Br. 57 (citing 43 C.F.R. § 244.47 (1943)). But

these regulations did not come about until 1943, seventeen years after PWR 107. Finally, the United States

argues that, as the district court observed, Plaintiffs

could simply request a right-of-way pursuant to the

FLPMA Title V permit process. Aplee Br. 58 n.27.

Perhaps so, but this argument suffers the same flaw as

the prior one: the Title V permit process did not become available until the passage of the FLPMA in 1976.

See Pub. L. No. 94-579, Title V, § 501, 90 Stat. 2776 (Oct.

21, 1976) (codified at 43 U.S.C. § 1761). The logical

consequence of this argument is that PWR 107, an executive order aimed at ensuring public access to water,

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had precisely the opposite effect until the passage of the

FLPMA in 1976. This argument is untenable.

In SUWA, the court found that common sense dictated that a coal withdrawal that permitted widespread

settlement under homestead laws “was not meant to cut

off the right to establish access to those claims.” 425

F.3d at 786. The same rationale applies here. R.S.

2477 was “essentially the only authority” by which the

public could establish roads across federal lands. Id.

If PWR 107 cut off that authority, no roads could be developed to access the very water PWR 107 aimed to preserve for public use.

For the foregoing reasons, we conclude PWR 107 was

not a “reservation” for the purposes of R.S. 2477 and

thus reverse the district court’s determination that

Plaintiffs could not establish a right-of-way on the segment of Swallow Park Road crossing these parcels. On

the remainder of Swallow Park Road, the district court

found Plaintiffs presented sufficient evidence to establish an R.S. 2477 right-of-way. Kane II, 2013 WL

1180764, at *52. Because the district court found that

“no evidence was presented that the public has been denied access to [the] portions of the road crossing . . .

the PWR 107 parcels” and that “the public was able to

travel the full length of [Swallow Park Road] as often as

it found it convenient or necessary,” Kane County and

Utah have also established an R.S. 2477 right-of-way

over the portion of Swallow Park Road that crosses the

PWR 107 parcels as well. Id.

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C. Standard of Proof

The district court required Plaintiffs to prove their

R.S. 2477 rights-of-way by clear and convincing evidence and found that Plaintiffs had not met this burden

as to three of the Cave Lakes roads, K1075, K1087 and

K1088. Kane II, 2013 WL 1180764, at *43-45, *55.

Kane County and Utah appeal as to K1075 and contend

that “preponderance of the evidence” is the appropriate

standard of proof for establishing R.S. 2477 rights-ofway. Because we concluded above that the district

court erred in exercising jurisdiction over Cave Lakes

Road K1075, we do not reach the issue of the appropriate standard of proof.

D. Scope of the Rights-of-Way: North Swag, Swallow

Park, and Skutumpah Roads

Swallow Park Road is a narrow, five-mile stretch of

dirt road in Western Kane County. A four-mile stretch

of the road has a 10-12 foot travel surface with vehicles

unable to pass. Similarly, North Swag Road is a narrow dirt road approximately five miles long with a travel

surface of ten feet. Skutumpah Road is a major twolane thoroughfare with a travel surface of 24-28 feet.

The district court found Plaintiffs had established

R.S. 2477 rights-of-way on North Swag, Swallow Park,

and Skutumpah roads. Kane II, 2013 WL 1180764, at

*51-53, *60-62. It determined Plaintiffs held 24-foot

rights-of-way on Swallow Park and North Swag Road

and a 66-foot right-of-way on Skutumpah Road. The

United States contends that the district court committed two errors. First, the United States argues the

court failed to base the North Swag and Swallow Park

right-of-way widths on uses that were established as of

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1976, when R.S. 2477 was repealed. 4 Aplee. Br. 38-44.

Second, it contends the district court improperly allowed room for unspecified future improvements to

North Swag, Swallow Park and Skutumpah roads. Id.

at 45-50. We agree with the United States on both

points and remand to the district court.

“Reasonable and Necessary” in Light of Pre-1976

Uses

The FLPMA repealed R.S. 2477 in 1976 but preserved existing rights-of-way. See 43 U.S.C. § 1769(a).

Thus, R.S. 2477 rights-of-way were preserved “as they

existed on the date of passage” of the FLPMA, October

21, 1976. Hodel, 848 F.2d at 1083; see also SUWA, 425

F.3d at 746 (“[T]he scope of an R.S. 2477 right of way is

limited by the established usage of the route as of the

date of the repeal of the statute.”).

The width of the road, however, is not limited to the

actual beaten path as of October 21, 1976. Hodel,

848 F.2d at 1083; SUWA, 425 F.3d at 746. Courts look

to state law to determine the appropriate width, Hodel,

848 F.2d at 1083, and under Utah law, the width of a

public road is that which is “reasonable and necessary

under all the facts and circumstances.” Memmott v.

Anderson, 642 P.2d 750, 754 (Utah 1982). Thus, the

road can be “widened to meet the exigencies of increased travel,” including where necessary to ensure

safety. Hodel, 848 F.2d at 1083-84 (citation omitted).

However, the “ ‘reasonable and necessary’ standard must

be read in the light of traditional uses to which the

The United States does not challenge the district court’s width

determination as to the wider portion of Swallow Park Road that is

below its intersection with Skutumpah. Aplee. Br. 36 n.17.

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right-of-way was put.” Id. at 1083 (emphasis added).

Thus, the proper inquiry is what width is reasonable and

necessary in light of the pre-1976 uses of the road. Id.

at 1084 (holding that improvement of the Burr Trail was

“reasonable and necessary to ensure safe travel” in light

of the pre-1976 uses of livestock transportation, oil, water and mineral development and tourism).

The district court made only a passing reference to

Hodel and SUWA’s mandate that the reasonable and

necessary standard be viewed in light of pre-1976 uses

and did not appear to apply this standard to Swallow

Park and North Swag roads. Kane II, 2013 WL 1180764,

at *63-65. It made substantial factual findings regarding pre-1976 uses of Swallow Park and North Swag and

considered these findings in evaluating whether R.S.

2477 rights-of-way existed at all. See id. at *51-52

(Swallow Park), *52-53 (North Swag). However, it did

not consider these findings in evaluating their scope.

Id. at *65. Instead, the court relied chiefly on travel

guidelines published by the American Association of

State Highway and Transportation Officials (AASHTO)

suggesting road widths for roads providing access to

recreational or agricultural areas. These Guidelines

may be relevant to the determination of what width is

reasonable and necessary in light of the pre-1976 uses of

Swallow Park and North Swag roads. However, because the district court did not discuss these pre-1976

uses, we must remand.

The FLPMA “had the effect of ‘freezing’ R.S. 2477

rights as they were in 1976.” SUWA, 425 F.3d at 741.

It brought about a “statutory sea change” that “instituted a preference for retention of the lands in federal

ownership, with an increased emphasis on conservation

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and preservation.” Id. These policies inform our determination of the scope of R.S. 2477 rights-of-way and

call for caution in allowing improvements or expansions

beyond the width of R.S. 2477 roads in 1976. As this

court has consistently held, rights-of-way may be expanded beyond their 1976 widths only where reasonable

and necessary in light of pre-1976 uses.

Unspecified Future Improvements

The district court determined that a 60-foot right-ofway was appropriate for Skutumpah Road and explained that this width would allow “room to address any

future realignments or other improvements needed to

increase safety.” Kane II, 2013 WL 1180764, at *64.

As to Swallow Park and North Swag roads, the court determined 24-foot rights-of-way were appropriate, explaining that this width “allow[ed] for maintenance and

improvements.” Id. at *65. The United States contends that the district court erred in allowing room for

unspecified future improvements. We agree.

Hodel explained that “the initial determination of

whether activity falls within an established right-of-way

is to be made by the BLM and not the court.” 848 F.2d

at 1084 (citation omitted). SUWA clarified this statement by drawing a sharp distinction between “routine

maintenance” and “improvements” to R.S. 247

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