Petition for Writ of Certiorari — Elko County, Nevada v. Wilderness Society (No. 08-571)
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Supreme Court, U.S.
FILED -
48-571 Oct 28 2008
OFFICE OF THE CLERK
jn The
Supreme Court of the Anited States
ELKO COUNTY, NEVADA,
Petitioners,
THE WILDERNESS SOCIETY; GREAT OLD
BROADS FOR WILDERNESS; UNITED STATES
OF AMERICA; and JOHN C. CARPENTER,
individually and as agent for Citizens United
for the South Canyon Road,
Respondents.
On Petition For Writ Of Certiorari
To The Ninth Circuit Court Of Appeals
PETITION FOR WRIT OF CERTIORARI
GARY D. WOODBURY
Elko County District Attorney
1515 7th Street
Elko, NV 89801
(775) 738-3101
COCKLE LAW BRIEF PRINTING CO (800) 225-€964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
Is a proposed intervenor of right required to have
independent Article III and prudential standing
to intervene as a defendant aligned with the
United States in a quiet title action under 28
U.S.C. § 2409?
Is an environmental interest sufficient to confer
Article III and prudential standing on a proposed
intervenor in a Quiet Title action under 28 U.S.C.
§ 2409?
Is a circuit court of appeals required to decide
whether a case in district court is moot as be-
tween the original parties before it decides
whether a proposed intervenor of right needs Ar-
ticle III and prudential standing to support in-
tervention?
PARTIES TO THE PROCEEDING
Plaintiff-counter-defendant-Appellee below:
UNITED STATES OF AMERICA
Represented by Elizabeth Ann Peterson, Esq., AUSA,
Post Office Box 23795 (L’Enfant Plaza Station)
Washington, D.C. 20026
Defendants below:
JOHN C. CARPENTER, INDIVIDUALLY AND AS
AGENT OF CITIZENS FOR THE SOUTH CANYON
ROAD, GRANT GERBER and Q. JOHNSON O.
Represented Pro Se
Defendant-Appeliee below:
COUNTY OF ELKO
Represented by Kristin McQueary, Esq.
Elko County District Attorney’s Office
1515 7th Street
Elko, NV 89801
Defendants-Intervenors-Appellants below:
THE WILDERNESS SOCIETY and GREAT OLD
BROADS FOR WILDERNESS
Represented by Michael S. Freeman, Esq.
EarthJ ustice
1400 Glenarm Place, Suite 300
Denver, CO 80202
iil
TABLE OF CONTENTS
QUESTIONS PRESENTED
PARTIES TO THE PROCEEDING
TABLE OF AUTHORITIES
CITATION TO OFFICIAL AND UNOFFICIAL
REPORTS OF OPINIONS AND ORDERS
WHY CERTIORARI SHOULD BE GRANTED ....
1. ARTICLE III STANDING
iv
TABLE OF CONTENTS — Continued
APPENDIX
United States v. Carpenter, 526 F.3d 1237 (9th
Cir. 2008)
September 19, 2006 Order of the Federal
District Court
United States v. Carpenter, 298 F.3d 1122 (9th
Cir. 2002)
September 16, 2008 Mandate of the Ninth
Circuit
Page
TABLE OF AUTHORITIES
CASES
American Fire & Casualty Co. v. Finn, 341 U.S.
6 (1951)
Arizonans for Official English v. Arizona, 520
U.S. 43 (1997)
Association of Data Processing Service Orgs. v.
Camp, 397 U.S. 150 (1970)
Bay Area Nuclear Waste Coalition v. Lujan, 42
F.3d 1398 (9th Cir. 1994)
Bender v. Williamsport Area School Dist., 475
U.S. 534 (1986)
Bennett v. Spear, 520 U.S. 154 (1997)
Block v. North Dakota, 461 U.S. 273 (1983)
California v. San Pablo & Tulare R. Co., 149
U.S. 308 (1893)
Cook v. Boorstin, 246 U.S. App. D.C. 201, 763
F.2d 1462 (D.C. Cir. 1985)
County of Fresno v. Andrus, 622 F.2d 436 (9th
Cir. 1980)
County of Orange v. Air California, 799 F.2d
537 (9th Cir. 1986)
Delaware Valley Citizens’ Council for Clean Air
v. Pennsylvania, 674 F.2d 970 (3d Cir. 1982)
vl
TABLE OF AUTHORITIES — Continued
Diamond v. Charles, 476 U.S. 54 (1986)
Donaldson v. United Staies, 400 U.S. 517
(1971)
Donnelly v. Glickman, 159 F.3d 405 (9th Cir.
Gator. Com v. L.L. Bean, Inc., 398 F.3d 1125
(2005)
Gladstone Realtors v. Bellwood, 441 U.S. 91
(1979)
Hein v. Freedom from Religion Found., Inc.,
127 S. Ct. 2553 (2007)
Kootenai Tribe of Idaho v. Veneman, 313 F.3d
1094 (9th Cir. 2002)
Lujan v. Defenders of Wildlife, 504 U.S. 555
Massachusetts v. EPA, 549 U.S. 497 (2007)
McNutt v. General Motors Acceptance Corp.,
BE eB CR vicnevnscccivsessevscessosccesestssenseess ee 22
Natural Res. Def. Council v. U.S., 578 F.3d
1341 (10th Cir. 1978) ................ i ia 12
New Orleans Public Service, Inc. v. United Gas
Pipe Line Co., 732 F.2d 452 (5th Cir. 1984)
Northeastern Fla. Chapter of Associated Gen.
Contractors of Am. v. City of Jacksonville,
508 U.S. 656 (1993)
Portland Audubon Society v. Hodel, 866 F.2d
302 (9th Cir. 1989)
vii
TABLE OF AUTHORITIES — Continued
Powell v. McCormack, 395 U.S. 486 (1969)
Preiser v. Newkirk, 422 U.S. 395 (1975)
Raines v. Byrd, 521 U.S. 811 (1997)
Roe v. Wade, 410 U.S. 113 (1973)
Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525
(9th Cir. 1983)
San Juan County v. United States, 503 F.3d
1163 (2007)
SEC v. Medical Comm. for Human Rights, 404
U.S. 403 (1972)
Sierra Club v. Morton, 405 U.S. 727 (1971)
Sierra Club v. United States EPA, 995 F.2d
1478 (9th Cir. 1993)
Southern Christian Leadership Conference v.
Kelley, 241 U.S. App. D.C. 340, 747 F.2d 777
(D.C. Cir. 1984)
Strycker’s Bay Neighborhood Council v. Karlen,
444 U.S. 223 (1980)
Tosco Corp. et al. v. Hodel, 804 F.2d 590 (10th
Cir. 1984)
Turner v. Bank of North-America, 4 U.S. 8, 4
Dall. 8, 1 L. Ed. 718 (1799)
United States v. 36.96 Acres of Land, 754 F.2d
855 (7th Cir. 1985), cert. denied, 476 U.S.
1108 (1986) 9, 12, 15, 18, 20
Vili
TABLE OF AUTHORITIES — Continued
United States v. Carpenter, 298 F.3d 1122 (9th
Cir. 2002)
United States v. Munsingwear, 340 U.S. 36
(1950)
Valley Forge Christian College v. Americans
United for Separation of Church and State,
Inc., 454 U.S. 464 (1982)
Vinson v. Washington Gas Light Co., 321 U.S.
489 (1944)
Warth v. Seldin, 422 U.S. 499 (1975)
Willy v. Coastal Corp., 503 U.S. 181 (1992)
Yniguez v. Arizona, 939 F.2d 727 (9th Cir.
OED vcinsdcconivietincctSeunteiaeeeaan sae 14, 22
STATUTES
2 U.S.C. §$9124(a) (Ocean Thermal Energy
Conversion Act)
7 U.S.C. § 2305(c)
15 U.S.C. § 72
28 U.S.C. §§ 516, 519
30 U.S.C. §1270(a) (Surface Mining Control
and Reclamation Act), 15 U.S.C. § 797(b)(5)
(Energy Supply and Environmental Coordi-
nation Act)
33 U.S.C. § 1365(g) (Clean Water Act)
1
CITATION TO OFFICIAL AND UNOFFICIAL
REPORTS OF OPINIONS AND ORDERS
(i) United States v. Carpenter, 526 F.3d 1237
(9th Cir. 2008);
——
Gi) September 19, 2006 Order of the Federal
District Court;
(iii) June 13, 2003 Order of the Federal District
Court;
(iv) United States v. Carpenter, 298 F.3d 1122
(9th Cir. 2002);
(v) August 1, 2008 Order;
(vi) September 16, 2008 Mandate of the Ninth
Circuit.
e
STATEMENT OF JURISDICTION
G) The opinion of the Ninth Circuit Court of
Appeals from which review is sought was
filed on May 25, 2008.
(11) Rehearing was denied August 1, 2008. No
order granting an extension of time to file a
petition for a writ of certiorari exists.
(ii1) Mandate of the Ninth Circuit was filed effec-
tive September 16. 2008.
(iv) Basis for Federal Jurisdiction. 28 U.S.C.
§ 1331 (Federal Question), 28 U.S.C. § 1345
(United States as plaintiff).
2
(v) Statutory provision conferring jurisdiction on
the Supreme Court: 28 U.S.C. § 1254.
(vi) Rule 29.4(b) or (c) notifications are not re-
quired.
STATUTES INVOLVED
28 U.S.C. § 2409
Real property quiet title actions
(a) 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, other than a
security interest or water rights. This section does
not apply to trust or restricted Indian lands, nor does
it apply to or affect actions which may be or could
have been brought under sections 1346, 1347, 1491,
or 2410 of this title [28 U.S.C. §§ 1346, 1347, 1491, or
2410], sections 7424, 7425, or 7426 of the Internal
Revenue Code of 1954 [1986], as amended (26 U.S.C.
§§ 7424, 7425, and 7426), or section 208 of the Act of
July 10, 1952 (43 U.S.C. § 666). ...
Federal Rule of Civil Procedure 24. Interven-
tion
(a) Intervention of Right.
(1) On timely motion, the court must permit
anyone to intervene who:
3
(A) is given an unconditional right to in-
tervene by a federal statute; or
(B) claims an interest relating to the
property or transaction that is the
subject of the action, and is so situ-
ated 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. ...
Section 8 of the Act of July 26, 1866, 14 Stat.
253, and later codified at 43 U.S.C. § 932.3
A right of way for the construction of highways
over public lands, not reserved for public uses, is
hereby granted.
STATEMENT OF THE CASE
This case involves a dispute over ownership of a
road easement for the South Canyon Road located in
Elko County, Nevada, in the Humboldt-Toiyabe
National Forest and near the boundary of the Jar-
bidge Wilderness.
In October 1999, the United States filed suit
alleging trespass and seeking an injunction against
several Elko County individuals involved in recon-
structing the road which had washed out in 1995.
Pursuant to FRCP 21, the Federal District Court sua
4
sponte named Elko County as a defendant to the
lawsuit and simultaneously referred the case to
mediation.
Elko County filed an answer and counterclaim,
which alleged Elko County had title to an easement
for the South Canyon Road under the auspices of
Section 8 of the Act of July 26, 1866, 14 Stat. 258,
formerly section 2477 of the Revised Statutes (here-
inafter R.S. 2477) of the United States, and requested
the District Court quiet title to the easement against
the United States.
On March 2, 2001, all parties reached settlement
on all issues. On March 30, 2001, the Wilderness
Society and the Great Old Broads for Wilderness
(hereafter TWS) filed a motion to intervene as a
matter of right as a defendant to Elko County’s
counterclaim. The District Court denied the motion
as untimely. TWS appealed to the Ninth Circuit
Court of Appeals. The Ninth Circuit, even though the
District Court had conducted no analysis of the other
intervention criteria under FRCP 24(aX2) except
timeliness, reversed the District Court decision and
remanded the case with instructions to the District
Court to grant the motion to intervene and conduct
further proceedings consistent with its opinion,
United States v. Carpenter, 298 F.3d 1122, 1125-26
(9th Cir. 2002).
TWS, after remand, modified its intervention
motion to include cross-claims against the United
States under the Administrative Procedure Act. TWS
5
alleged that in agreeing not to contest whether Elko
County owned an R.S. 2477 easement in the South
Canyon, the United States effectively granted an
easement without complying with Federal law.
On remand on June 13, 2003, the District Court
held that because the Ninth Circuit instructed.-it to
grant the motion to intervene before a complete
FRCP 24(a)(2) analysis had been done, it was neces-
sary for the Court to determine if TWS had Article III
and Prudential standing. The District Court found
that TWS demonstrated constitutional and pruden-
tial standing as to the cross-claims but the cross-
claims should be dismissed because the Department
of Justice’s decision to settle the case was not an
agency action reviewable under the Administrative
Procedure Act, 5 U.S.C. §§ 701-706. The District
Court held that TWS had neither constitutional nor
prudential standing to intervene as a defendant
against Elko County’s counterclaim under the Quiet
Title Act and again denied intervention.
In that same order, the District Court stayed the
effectiveness of the Settlement Agreement because it
was concerned that the United States had granted a
right-of-way triggering procedural requirements not
met by the agreement. The District Court stayed the
agreement pending compliance with procedural
requirements.
On April 27, 2005, and May 31, 2005, the United
States Forest Service completed an analysis under
the National Environmental Policy Act (NEPA)
6
concerning re-establishment of the road. The Forest
Service decided to re-establish a primitive four-wheel
drive road in the South Canyon. TWS requested judicial
review of that administrative decision in a separate
suit. That suit is still pending. The Wilderness
Society; Great Old Broads for Wilderness v. United
States Forest Service, et al., USDC 3:07-CV-00170.
Beginning April 30, 2006, the United States and
Elko County presented evidence to the District Court
for a week to resolve the District Court’s questions
whether 1) the settlement agreement granted a right-
of-way that required procedures not provided for in
the settlement agreement and 2) whether there was
sufficient evidence that Elko County had a colorable
claim to an R.S. 2477 easement in South Canyon to
justify the United States not contesting it. TWS was
present as amicus and participated in post-hearing
briefing. On September 19, 2006, the District Court
held that the Settlement Agreement was fair, ade-
quate, reasonable and in accord with applicable law
and lifted the stay.
TWS appealed to the Ninth Circuit from both the
June 13, 2003, District Court order denying interven-
tion in the Quiet Title Act and dismissal of its cross-
claims and from the September 19, 2006, final order
of the District Court approving the Settlement agree-
ment.
On May 20, 2008, the Ninth Circuit reversed the
order denying intervention and remanded the case for
further proceedings, United States v. Carpenter, 526
F.3d 1237 (9th Cir. 2008).
ARGUMENT
WHY CERTIORARI SHOULD BE GRANTED
Permitting environmental groups, or anyone else
without a claim of ownership to the real property in
issue, to intervene as of right as a Defendant aligned
with the United States in a quiet title action under 28
U.S.C. § 2409 effectively allows the intervenor, as
well as the Courts, to improperly inject themselves
into general executive branch discretionary policy
decisions.
This Court has repeatedly forbidden the federal
courts and parties from litigating general federal
policy questions in cases in which the United States
is participating. That is typically done by finding that
prospective plaintiffs lack either Article III or Pru-
dential standing or by confining the courts to non
policy holdings, Strycker’s Bay Neighborhood Council v.
Karlen, 444 U.S. 223, 227 (1980). Intervention rules,
however, lacking any prudential standing concepts and
being so broadly interpreted in favor of intervention,
result in intervenors not similarly screened. While
intervenors must, theoretically, take a lawsuit as
they find it, in practice, and the instant case is a
good example, interference by the intervenors with
discretionary federal policy is at the forefront of the
issues before the trial court.
8
There is no specific, identifiable federal law
providing TWS an environment free of motor vehicles
outside the boundaries of a wilderness, just as there
is no specific identifiable law entitling taxpayers to
have Government funds expended in any particular
way. Environmental interests exist as a result of, and
are protected by, citizen suit provisions of specific
environmental statutes, or by the Administrative
Procedure Act. Where only title to real property is at
stake, as it is in a quiet title action, and not the use to
which the land will ultimately be put, the general
rule — that a proposed intervenor need only have a
significant protectable interest in the subject matter
of the law suit, protected by some statute or law,
results in intervenors being allowed to challenge or
promote general federal policy before the court in
quiet title actions. Thus, the federal courts become, as
this Court held they should not, general complaint
bureaus about that policy. See Hein v. Freedom from
Religion Found., Inc., 127 S. Ct. 2553 (2007).
Allowing an environmental group to intervene as
a co-defendant with the government in a NEPA action
has been prohibited by the Ninth Circuit, Kootenai
Tribe of Idaho v. Veneman, 313 F.3d 1094, 1108 (9th
Cir. 2002). The rationale for that rule is that, because
NEPA requires action only by the government, only
the government can be liable under NEPA. Allowing
intervention on the side of the United States as
plaintiff in a condemnation action by the United
States, a kind of inverse circumstance from a quiet
title action, is objectionable for essentially the same
9
reason, United States v. 36.96 Acres of Land, 754 F.2d
855 (7th Cir. 1985), cert. denied, 476 U.S. 1108 (1986).
Allowing intervention by an environmental group as
a defendant with the United States in a quiet title
action interjects the court and the intervenors into
the discretion of the executive in a virtually identical
way. There is no required administrative procedure
for the Department of Justice to follow in deciding
how and to what degree to initiate a quiet title action.
Whether and how to defend a quiet title action is
wholly within the discretion of the executive branch,
28 U.S.C. §§ 516, 519.
In Valley Forge Christian College v. Americans
United for Separation of Church and State, Inc., 454
U.S. 464, 483 (1982) this Court held that:
Assertion of a right to a particular kind of
Government conduct, which the Government
has violated by acting differently, cannot
alone satisfy the requirements of Art. III
without draining those requirements of
meaning.
The Circuit Courts of Appeal are divided on
whether Article III standing is necessary to support
intervention in the district courts in every case,
Diamond v. Charles, 476 U.S. 54, 68-69 (1986).
Most recently, the Tenth Circuit decided in San
Juan County v. United States, 503 F.3d 1163, 1171
(2007), where environmental groups, without a claim
of title, sought intervention as defendants in a quiet
title action, that so long as the party on whose side
intervention is sought has Article III standing, the
10
intervenor need not independently establish his own
standing.
The Ninth Circuit’s position on the necessity of
establishing independent Article III standing to
support intervention of right pursuant to FRCP 24(a)
is ambiguous, Portland Audubon Society v. Hodel,
866 F.2d 302, 308, n.1 (9th Cir. 1989).
The plaintiffs urge us to find that a party
seeking to intervene must have standing, as
the D.C. Circuit has held. See Cook v. Boor-
stin, 246 U.S. App. D.C. 201, 763 F.2d 1462,
1470-71 (D.C. Cir. 1985). However, we in the
past have resolved intervention questions
without making reference to standing doc-
trine. See, e.g., Sagebrush Rebellion, Inc. v.
Watt, 713 F.2d 525, 527-29 (9th Cir. 1983).
The Supreme Court recently declined to de-
cide “whether a party seeking to intervene
before a district court must satisfy not only
the requirements of Rule 24(a)(2), but also
the requirements of Art. III.” Diamond uv.
Charles, 476 U.S. 54, 68-69 & n.21, 90
L. Ed. 2d 48, 106 S. Ct. 1697 (1986) (observ-
ing that “the Courts of Appeals have reached
varying com:.usions as to whether a party
seeking to intervene as of right must himself
possess standing”). Without an en banc re-
view, we must follow the Sagebrush Rebel-
lion analysis and decline to incorporate an
independent standing inquiry into our cir-
cuit’s intervention test. However, the standing
reguirement is at least implicitly addressed
by our requirement that the applicant must
11
“assert an interest relating to the property or
transaction which is the subject of the ac-
tion.” County of Orange, 799 F.2d at 537
(quoting Stringfellow, 783 F.2d at 826). (Em-
phasis added).
Contrasting Portland Audubon Society with
County of Fresno v. Andrus, 622 F.2d 4386, 438 (9th
Cir. 1980), it is clear that the Ninth Circuit doesn’t
even remotely analyze an injury in fact for standing
purposes in the same way it analyzes a protectable
interest for intervention purposes.
The ‘interest test’ is basically a threshold
one, rather than the determinative criterion
for intervention, because the criteria of prac-
tical harm to the applicant and the adequacy
of representation by others are better suited
to the task of limiting extension of the right
to intervene.
There is, as well, significant discord among the
Circuit Courts regarding the nature of the protectable
interest required by FRCP 24 to support intervention.
The Tenth Circuit Court of Appeals in San Juan
County v. United States, 503 F.3d 1163, commencing
at page 1188, spent approximately 15 pages of its
opinion analyzing and comparing the varying position
of the Circuit Courts regarding the nature of the
interest required by FRCP 24(a)(2). The specific issue
there, as here, was the right of an environmental
group to intervene as a defendant in a quiet title
action. The net result of that decision was very simi-
lar to that determined by the Ninth Circuit in County
12
of Fresno; it is not the nature of an aspiring interve-
nor’s interest, rather it is the practical effect of the
litigation on the aspiring intervenor which limits the
right to intervene.
The Seventh Circuit in United States v. 36.96
Acres of Land, 754 F.2d 855, 476 U.S. 1108 (1986)
requires the protectable legal interest to be direct,
but neither the Tenth Circuit, nor the Ninth Circuit
appear to impose a similar requirement, or if they do,
“direct” lacks any reasonably defined meaning. In
San Juan County, commencing at page 1193, the
Tenth circuit stated that:
Whether an interest is direct or indirect
could be a matter of metaphysical debate be-
cause almost any causal connection can be
represented as a chain of causation in which
intermediate steps separate the initial act
from the impact on the prospective interve-
nor.
The Tenth Circuit has also held that requiring a
direct interest of an intervenor is a “too narrow”
construction of Rule 24(a)(2), Natural Res. Def. Coun-
cil v. U.S., 578 F.3d 13841, 1344 (10th Cir. 1978).
The focus of those two circuits is on “practical
harm” and the adequacy of representation as the
limiting concepts. There is nothing in those two
components that has ever been used to prevent
prospective intervenors from joining litigation where
their only interest is in promoting or opposing a
particular federal policy.
13
The First Circuit does not find “direct” to be a
metaphysical concept, New Orleans Public Service,
Inc. v. United Gas Pipe Line Co., 732 F.2d 452 (5th
Cir. 1984).
Prudential standing concepts are not required for
intervention. This Court has held that application of
the prudential standing rules is necessary, at least in
part, to insure that the scope of the judiciary’s power
does not impinge on the rights and responsibilities of
the executive and legislative branches of government,
Valley Forge Christian College v. Americans United
for Separation, 454 U.S. 464, 474 (1982).
In theory an intervenor is limited to the proceed-
ings and issues as they stand at the time intervention
is granted; and in theory, he is not permitted to
enlarge those issues or alter the nature of the pro-
ceeding. Vinson v. Washington Gas Light Co., 321
U.S. 489 (1944). What is not prevented however, is
the actual result in this case. The United States, for
its own reasons, does not want to litigate any further
whether Elko County has a valid R.S. 2477 easement
in the South Canyon, but the intervening enviren-
mental groups do. This case was settled by the par-
ties in 2001 slightly over two years after it began.
Solely because of the intervention efforts of TWS, the
case 1s now into its ninth year of litigation.
1. ARTICLE III STANDING
The Federal District Court in this case held on
June 13, 2003, that proposed intervenor TWS had to
14
have Article III and Prudential Standing to intervene
of right as a Defendant in Elko County’s counterclaim
seeking to quiet title to a road easement. The District
Court conducted the standing analysis only because
the Ninth Circuit directed the District Court to allow
TWS to intervene in the quiet title counterclaim prior
to the District Court completing its FRCP 24(a)
intervention analysis, and not as a result of any
requirement in the Ninth Circuit that standing is
required to intervene as of right.
The Ninth Circuit panel in May, 2008, held that
if TWS needed Article III standing to intervene, it
had it by virtue of its interest in the environment:
To the extent that the United States is argu-
ing that intervenor-appeilants lack any in-
terest in the quiet title action, we believe
that position is foreclosed by our prior opin-
ion, in which we held that the intervenors
were entitled to intervene because they had
the requisite interest in seeing that the wil-
derness area be preserved for the use and en-
joyment of their members. This interest was
sufficient to allow them to intervene under
Federal Rule of Civil Procedure 24(a) and to
satisfy any requirements of Article [II stand-
ing.
The Ninth Circuit was required to conduct a de
novo review of a denial of a motion to intervene,
Yniguez v. Arizona, 939 F.2d 727 (9th Cir. 1991), but
no standing analysis by the Court of Appeals beyond
that quoted above was ever conducted. Because the
15
Ninth Circuit’s decision prevented the District Court
from conducting a full analysis of FRCP 24 criteria to
intervene, no analysis of intervention criteria was
conducted, including the usual presumption that the
government is adequately protecting the legal inter-
ests of its citizens. See Delaware Valley Citizens’
Council for Clean Air v. Pennsylvania, 674 F.2d 970,
973 (3d Cir. 1982).
FRCP 24 requires four criteria to be met before
intervention will be granted as of right under FRCP
24(a\(2). First, the application must be timely. Sec-
ond, the intervenor must show an interest relating to
the property or transaction which is the subject of the
action. Third, the intervenor must show that the
disposition of the suit may as a practical matter
impair or impede the intervenor’s ability to protect
that interest. And, fourth, the intervenor must show
that the interest is not adequately represented by
existing parties, FRCP 24, United States v. 36.96
Acres of Land, '754 F.2d 855, 858 (7th Cir. 1985).
The interest of the proposed intervenor must be a
significant, legally protectable one, Donaldson uv.
United States, 400 U.S. 517, 531 (1971). A prospective
intervenor need not establish that his asserted inter-
est is one that is protected by the statute under which
the litigation is brought, rather only that it is pro-
tectable under some law, and that there is a relation-
ship between the legally protected interest and the
claims at issue, Sierra Club v. United States EPA, 995
F.2d 1478 (9th Cir. 1993).
16
The Ninth Circuit claims to be guided in deter-
mining whether intervention of right is appropriate,
“primarily by practical and equitable considerations.”
Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir.
1998). Intervention rules are interpreted in favor of
intervention.
In Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992), this Court held that a plaintiff’s standing
required (1) that an injury in fact be demonstrated
that is concrete, distinct, palpable, and actual or
imminent; (2) that a causal connection exists between
the injury and the conduct complained of be estab-
lished that is fairly traceable to the challenged action
of the defendant; and (3) that there is a substantial
likelihood that the requested relief will remedy the
alleged injury in fact. If the plaintiff filing the lawsuit
does not meet the Lujan criteria, there is no case or
controversy and the Federal Courts are without
jurisdiction to address the merits of the case. The
injury in fact must be an invasion of a legally pro-
tected interest, Northeastern Fla. Chapter of Associ-
ated Gen. Contractors of Am. v. City of Jacksonville,
508 U.S. 656, 662 (1993). —-.
Inherent in the Article IIT analysis of plaintiff’s
standing in Lujan is the corollary proposition that the
named defendant must be the person or entity caus-
ing an injury that is fairly traceable to him. If the
plaintiff names the wrong defendant, although the
case might be dismissed through a variety of proce-
dures, it is fundamental that there can be no Article
III case or controversy. TWS clearly has not done, nor
17
could it do, any injury to Elko County that is remedi-
able in a quiet title action.
This Court has held that a change in use of real
property that effects the environment is an injury in
fact sufficient to lay the basis for standing under the
Administrative Procedure Act, Sierra Club v. Morton,
405 U.S. 727 (1971) at page 734.
The injury alleged by the Sierra Club will be
incurred entir2ly by reason of the change in
the uses to which Mineral King will be put,
and the attendant change in the aesthetics
and ecology of the area. Thus, in referring to
the road to be built through Sequoia Na-
tional Park, the complaint alleged that the
development “would destroy or otherwise ad-
versely affect the scenery, natural] and his-
toric objects and wildlife of the park and
would impair the enjoyment of the park for
future generations.” We do not question that
this type of harm may amount to an “injury
in fact” sufficient to lay the basis for stand-
ing under § 10 of the APA. Aesthetic and en-
vironmental well-being, like economic well-
being, are important ingredients of the qual-
ity of life in our society, and the fact that par-
ticular environmental interests are shared
by the many rather than the few does not
make them less deserving of legal protection
through the judicial process.
But in Bennett v. Spear, 520 U.S. 154, 163 (1997),
this Court warned that what suffices for an injury in
18
fact under the Administrative Procedure Act might be
less than what is required for other purposes.
The expansive “injury in fact” language in Sierra
Club v. Morton is virtually identical in substance to
the language of the Ninth Circuit in this case, but
this case is a quiet title action, not an APA action.
Imposing Article III standing requirements in
place of intervention’s protectable interest require-
ment is a reasonable procedural means to prevent
those without a title interest from improperly inter-
vening in quiet title actions. Alternatively, as a prac-
tical matter, it does not matter whether standing is
required for FRCP 24 intervention as held in South-
ern Christian Leadership Conference v. Kelley, 241
U.S. App. D.C. 340, 747 F.2d 777 (D.C. Cir. 1984) or a
showing of a greater interest is required for interven-
tion than for standing as held in United States uv.
36.96 Acres of Land, 754 F.2d 855 (7th Cir. 1984), so
long as there is also required to be shown a direct
causal connection between the conduct complained of
that is fairly traceable to the challenged action of the
Defendant.
2. PRUDENTIAL STANDING
The Ninth Circuit panel opinion of May 2008 did
not address prudential standing. Without prudential
limitations, the courts would be called upon to decide
abstract questions of wide public significance even
though other governmental institutions may be more
competent to address the questions, Warth v. Seldin,
19
422 U.S. at 499-500 (1975). Under the rules of pru-
dential standing, the judiciary seeks to avoid deciding
questions of broad social import where no individual
rights would be vindicated and to limit access to the
federal courts to those litigants best suited to assert a
particular claim, Gladstone Realtors v. Bellwood, 441
U.S. 91 (1979).
Among prudential considerations, the plaintiff’s
complaint must fall within “the zone of interests to be
protected or regulated by the statute or constitutional
guarantee in question.” Association of Data Process-
ing Service Orgs. v. Camp, 397 U.S. 150, 153 (1970).
There does not seem to be any reason why a proposed
intervenor on behalf of a defendant, regardless of
whether Article III standing is otherwise required,
should not be required to demonstrate that their
interests fall within the zone of interests protected by
the law upon which the suit is premised. Absent such
a requirement, as in this case, an intervenor may join
litigation for no reason other than to promote or
denigrate executive discretionary policy.
Indeed, if this Court were not inclined to require
Article III standing for intervenors in quiet title
actions, requiring a prudential standing interest
alone would substantially assist the lower courts in
defining significant protectable legal interests re-
quired by FRCP 24(a).
That Congress can and does modify prudential
standing requirements is clear, Bennett v. Spear, 520
U.S. 154, 162 (1997). This Court held that Congress
20
legislates against a background of this Court’s pru-
dential standing doctrine. Jd. at 163. Congress has
conferred both Article IIJ and Prudential standing to
a broad range of potential plaintiffs through the
Administrative Procedure Act, Section 10(a), as well
as the citizen suit provisions of some environmental
and other statues, 33 U.S.C. § 1365(g) (Clean Water
Act), 30 U.S.C. § 1270(a) (Surface Mining Control and
Reclamation Act), 15 U.S.C. §797(b)\(5) (Energy
Supply and Environmental Coordination Act); 42
U.S.C. § 9124(a) (Ocean Thermal Energy Conversion
Act), 7 U.S.C. § 2305(c), 15 U.S.C. § 72.
Presumably, Congress also legislates against a
background of this Court’s intervention decisions, and
would be aware that certiorari was denied by this
Court to review the Seventh Circuit decision in
United States v. 36.96 Acres of Land, 754 F.2d 855
(7th Cir. 1985), cert. denied, 476 U.S. 1108 (1986), a
condemnation case denying intervention based on
environmental concerns.
Congress has not made any effort whatsoever to
alter 28 U.S.C. § 2409, or any related statutes, in a
way that suggests it wants environmental concerns
litigated in quiet title actions.
Allowing TWS to intervene as of right in this case
without meeting Article III and/or prudential stand-
ing requirements in an action under the Quiet Title
Act, 28 U.S.C. § 2409, which statute this court has
described as being the exclusive procedure by which a
claimant can judicially challenge the title of the
21
United States to real property, Block v. North Dakota,
461 U.S. 273 (1983), is fundamentally at odds with
the general principals set forth above.
3. MOOTNESS
Even if this Court finds that it is not generally
necessary for TWS to establish Article II] and Pru-
dential Standing to intervene in a quiet title action as
a defendant, the fact that the case was moot at the
time TWS moved for intervention, or became moot
when the United States Forest Service independently
decided to open a road to motorized traffic in the
South Canyon regardless of the outcome of the quiet
title counterclaim, required TWS to establish stand-
ing, Tosco Corp. v. Hodel, 804 F.2d 590 (10th Cir.
1984).
An actual case or controversy must be extant at
all stages of review, not merely at the time the com-
plaint is filed, Preiser v. Newkirk, 422 U.S. 395
(1975); Arizonans for Official English v. Arizona, 520
U.S. 43, 67 (1997). The requisite personal interest
that must exist at the commencement of litigation
must continue throughout its existence, Arizonans at
page 67.
There is no division among the Circuit Courts
that one seeking to intervene in an otherwise moot
case in which all parties have settled all issues, must
have standing. Tosco Corp. et al. v. Hodel, 804 F.2d
590 (10th Cir. 1984); and Bay Area Nuclear Waste
Coalition v. Lujan, 42 F.3d 1398 (9th Cir. 1994) must
22
have Article III standing; Preiser v. Newkirk, 422 U.S.
395, 401 (1975); Arizonans for Official English v.
Arizona, 520 U.S. 43 (1997); Roe v. Wade, 410 U.S.
113 (1973); SEC v. Medical Comm. for Human Rights,
404 U.S. 402 (1972); United States v. Munsingwear,
340 U.S. 36 (1950); Yniquez v. Arizona, 939 F.2d 727,
731 (9th Cir. 1991).
Federal courts are courts of limited jurisdiction.
They possess only that power authorized by Constitu-
tion and statute, Willy v. Coastal Corp., 503 U.S. 131,
136-137 (1992); Bender v. Williamsport Area School
Dist., 475 U.S. 534, 541 (1986), which is not to be
expanded by judicial decree, American Fire & Casu-
alty Co. v. Finn, 341 U.S. 6 (1951). It is to be pre-
sumed that a cause lies outside this limited
jurisdiction, Turner v. Bank of North-America, 4 U.S.
8, 4 Dall. 8, 11, 1 L. Ed. 718 (1799), and the burden of
establishing the contrary rests upon the party assert-
ing jurisdiction, McNutt v. General Motors Acceptance
Corp., 298 U.S. 178, 182-183 (1936). Federal Courts
are, aS a consequence, required to examine jurisdic-
tion before they proceed to the merits of the case,
Raines v. Byrd, 521 U.S. 811, 819 (1997).
On March 2, 2001, the original parties reached
an agreement as to all issues in the case. TWS did not
seek to intervene until March 30, 2001. No justiciable
controversy exists when the question sought to be
adjudicated has been mooted by subsequent develop-
ments, California v. San Pablo & Tulare R. Co.,
149 U.S. 308 (1893); Massachusetts v. EPA, 549
U.S. 497 (2007). A case is moot when the issues
23
presented are no longer “live” or the parties lack a
legally cognizable interest in the outcome, Powell v.
McCormack, 395 U.S. 486, 496 (1969). A settlement
agreement resolving all facets of the dispute between
the parties moots the case, Gator. Com v. L.L. Bean,
Inc., 398 F.3d 1125, 1131 (2005).
The District Court approved the Settlement
Agreement on Sept. 19, 2006. Even if the earlier
decision of the District Court staying the effectiveness
of the agreement kept the case or controversy alive,
that changed on Sept. 19, 2006, when the stay was
lifted.
Additionally, the District Court in its June 13,
2003, order clearly stated that TWS’ only interest in
the litigation was that if Elko County prevailed a
road open to motorized traffic would exist, and that if
the United States prevailed, no such road would
exist.
The Ninth Circuit acknowledged in its opinion,
526 F.3d at page 1242, that the United States Forest
Service’s independently determined decision to repair
the road might well create a mootness issue:
We are aware that other events have taken
place that may bear on the proceedings in
this case. The intervenor-appellants have
filed an independent action in District Court
to challenge the Forest Service’s decision to
open a road to vehicular traffic and we are
also aware that the construction of the road
has begun. We express no opinion on the
24
merits of this independent action or whether,
on remand, any party may successfully con-
tend that the matter has become moot.
The Ninth Circuit was required to decide moot-
ness, not leave it for another day. An appellate court
is under a special obligation to satisfy itself not only
of its own jurisdiction, but also that of the lower
courts in a cause under review, even though the
parties are prepared to concede it, or make no conten-
tion concerning it, Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541 (1986).
It is particularly important in this case that
mootness be decided if this Court determines that
Article III standing is not generally necessary to
intervene in an action under the Quiet Title Act. If
the decision of the Ninth Circuit is allowed to stand
as is, that Article III standing exists solely as a
consequence of TWS’ interest in preserving a wilder-
ness without a specific statutory predicate, or any
other analysis, it is precedent for the proposition that
Article III] standing has no Prudential standing
component which is exactly contrary to this Court’s
prudential standing decisions, Lujan v. Defenders of
Wildlife, 504 U.S. 555, 559-562 (1992).
*
25
CONCLUSION
Unless all the requirements of standing — Article
III and Prudential — are imposed on prospective
intervenors in quiet title actions where the only issue
is who has title to a piece of property, both Article III
and Prudential requirements are emasculated and
are meaningless.
DATED: October 28, 2008
Respectfully submitted,
Gary D. Woopsury, Esq.
Elko County District Attorney
Attorneys for Petitioner,
Elko County
App. l
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-counter-defendant-Appellee.
¥.
JOHN C. CARPENTER; GRANT
GERBER; Q. JOHNSON O., No. 06-15596
Defendants, D.C. No.
CV-99-00547-
and RLH/RAM
COUNTY OF ELKO, OPINION
Defendant-Appellee,
THE WILDERNESS SOCIETY; GREAT OLD
BROADS FOR WILDERNESS,
Defendants-Intervenors-Appellants.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Argued and Submitted
February 27, 2008 — Pasadena, California
Filed May 20, 2008
Before: Mary M. Schroeder, Dorothy W. Nelson and
Stephen Reinhardt, Circuit Judges.
Opinion by Judge Schroeder
App. 2
COUNSEL
Elizabeth Ann Peterson, AUSA, Washington, DC, for
plaintiff-counter-defendant-appellee United States of
America.
Kristin McQueary, Elko, Nevada, for defendant-
appellee County of Elko.
Michael S. Freeman, Denver, Colorado, for defen-
dants-intervenors-appellants The Wilderness Society
et al.
OPINION
SCHROEDER, Circuit Judge:
This is a dispute over the status of a road on U.S.
Forest Service land in Elko County, Nevada. The case
was before us for the first time in 2002. See United
States v. Carpenter, 298 F.3d 1122 (9th Cir. 2002). At
that time, the intervenor-appellant environmental
groups wanted to object to the terms of a proposed
settlement between the United States and Elko
County that effectively allowed the County to repair
the road. We ordered the district court to grant the
motion to intervene. Id. at 1125.
The intervenor-appellants are now back, claiming
that the district court disregarded our mandate by
not permitting them to intervene in the Quiet Title
Act portion of the suit that was the subject of the
proposed settlement and therefore was the critical
App. 3
part of the litigation. The district court, after our
decision, permitted the intervenor-appellants to
appear only as amici during the settlement approval
proceedings; it denied their motion to participate in
an evidentiary hearing. After the hearing, the court
ruled against their position on the merits without, in
appellants’ view, permitting them adequate participa-
tion. The intervenor-appellants now want us not only
to vacate the approval so that they can fully present
their position, but they also want us to reach the
merits and rule in their favor.
For their part, the United States and the County
defend the settlement, contending that the interve-
nors’ participation was adequate because the district
court properly, in appellees’ view, ruled that the
intervenors lacked standing to participate as a party
in the quiet title proceedings in light of their lack of
any property interest in the disputed right of way for
the road. Resolution of the appeal therefore requires
some understanding of the procedural history of the
case both before the first appeal and after our prior
opinion.
I. Background
We begin with the initiation of the lawsuit in
1999 by the United States against residents of Elko
County who were using self-help measures to restore
one of the old logging roads near a wilderness area.
Carpenter, 298 F.3d at 1124. The residents were
known as the “Shovel Brigade.” The United States at
App. 4
that time was concerned about the degradation of the
environment through the adverse effect the Shovel
Brigade was having on bull trout in the river adjacent
to the roadway, and the threat to maintaining the
pristine nature of that area. Because the road leads
to the Jarbidge Wilderness Area, the restoration of
the roadway would have increased traffic into the
wilderness preserve. The U.S. Attorney General filed
this suit alleging two causes of action: unlawful take
of threatened bull trout in violation of the Endan-
gered Species Act, 16 U.S.C. § 1538(a)(1)(G), and
common law trespass.
The district court added Elko County as a party
defendant, and it filed a counterclaim under the
Quiet Title Act, 28 U.S.C. § 2409a, alleging that title
to an easement for the roadway should be quieted in
the County as opposed to the United States. The
district court ordered the parties to mediation. As we
stated in our prior opinion, when the district court
sent the United States and the County to mediation,
the parties agreed that the discussions would be
confidential. Carpenter, 298 F.3d at 1124. The nego-
tiations were protracted but agreement was eventu-
ally reached:
The parties returned to court after months of
unsuccessful negotiations, and the district
court ordered further confidential settlement
proceedings, this time before a Magistrate
Judge. On March 2, 2001, the parties noti-
fied the court that they had reached a tenta-
tive agreement, and the court lifted the
App. 5
confidentiality order covering the mediation
proceedings so that the agreement could be
publicly disseminated. The United States
agreed that it would not contest that Elko
County had a right of way to the road, but
did not waive its authority to manage federal
lands and natural resources in accordance
with federal environmental laws. The defen-
dants agreed that they would not do any
work on the road without receiving prior ap-
proval from the Forest Service and that they
would comply with federal environmental
laws.
Id. It was at that point, after the settlement had been
proposed and the intervenor environmentalists
became aware of the terms of the settlement, that
they sought to intervene. Id. at 1125.
The district court originally denied intervention,
principally on the ground that the application was
not timely. Jd. at 1124. We reversed the denial of
intervention, holding that the application was timely
in the circumstances, and that the intervenors met
the requirements for intervention because their
interests at that point were no longer being repre-
sented by any party to the proceeding. We ordered the
court to grant the intervention. Jd. at 1125-26.
That was six years ago. After we remanded the
case to the district court, the appellants renewed
their motion to intervene and attempted to file cross-
claims against the United States pursuant to the
Administrative Procedure Act (“APA”), directly
App. 6
challenging the terms of the settlement agreement as
violative of the National Environmental Protection
Act (“NEPA”), 42 U.S.C. § 4332, the Federal Land
Protection and Management Act (“FLPMA”), 42
U.S.C. § 1701 et seg., and Forest Service regulations,
36 C.F.R. pt. 251. The district court denied interven-
tion in the Quiet Title Act claim, stating in its order
that appellants have “neither constitutional nor
prudential standing to contest Elko County’s ease-
ment claim.” It did, however, permit the appellants to
intervene to assert their cross-claims against the
United States but dismissed those cross-claims on the
ground that the Attorney General’s decision to settle
litigation is not reviewable under the APA. Neverthe-
less, the district court judge then assigned to the
case, Judge Hagen, stayed the settlement approval
proceeding until the United States demonstrated that
it complied with the FLPMA, NEPA, and Forest
Service regulations.
When Judge Hagen retired, Judge Hunt took
over the case, and lifted the stay. He agreed with the
previous Judge’s orders denying intervention, but
disagreed with the order requiring compliance with
the various environmental laws. The court held
hearings on the merits of the settlement, but did not
permit the appellants to present evidence or partici-
pate as parties. It then approved the settlement and
the appellants filed this appeal. They contend that
the district court failed to follow our prior mandate
when it denied them full participation in the settle-
ment approval proceedings, and that the district
App. 7
court erred in dismissing their cross-claims attacking
the terms of the settlement.
Il. Analysis
We turn first to whether the district court failed
to follow the law of the case in denying intervenor-
appellants full participation in the settlement pro-
ceedings. The appellants contend that our mandate
required such participation, while the appellees
contend that we did not decide in the prior opinion
that appellants were entitled to participate in the
Quiet Title Act action, and that the district court was
correct in denying them participation as parties in
that claim because of their lack of a property interest
in the subject matter of the dispute, i.e., the right-of-
way for the road. Everyone agrees that the interest of
the intervenor-appellants is the use and enjoyment of
the unique aesthetic environment of this wilderness
area and that they have no property interest.
[1] We look first to the scope of our prior man-
date. In the earlier appeal we clearly, and without
equivocation, ordered the district court to permit
intervention in the case. Carpenter, 298 F.3d at 1125-
26. The case included the Quiet Title Act claim.
Indeed, it was apparent that the controversial set-
tlement could not be discussed outside the context of
the Quiet Title Act claim. At that time, that was all
the case was about. We ordered intervention without
requiring intervenors to assert a property interest in
the easement.
App. 8
[2] To the extent that the United States is
arguing that intervenor-appellants lack any interest
in the quiet title action, we believe that position is
foreclosed by our prior opinion, in which we held that
the intervenors were entitled to intervene because
they had the requisite interest in seeing that the
wilderness area be preserved for the use and enjoy-
ment of their members. This interest was sufficient to
allow them to intervene under Federal Rule of Civil
Procedure 24(a) and to satisfy any requirements of
Article III standing.
Our prior decision is in accord with the only other
circuit case to deal with intervention in a Quiet Title
Act action, the recent Tenth Circuit decision in San
Juan County v. United States, 503 F.3d 1163 (10th
Cir. 2007). There the Tenth Circuit held that a con-
servation group did not need to claim a property
interest in a road in order to intervene in a quiet title
action. Jd. at 1200. Instead, the group’s interest in the
environmental impact of vehicular traffic on the road
satisfied the condition of Rule 24(a)(2) that an inter-
venor claim “an interest relating to the property or
transaction which is the subject of the action.” Jd. at
1201.
[3] Although our prior opinion foreclosed any
argument that appellants were not entitled to inter-
vene, we did not suggest that the appellants’ approval
of the settlement was required. We recognize that the
intervenors whose claims are not the subject of a
settlement cannot veto that settlement. See Local No.
93, Int'l Ass’n of Firefighters v. City of Cleveland, 478
App. 9
U.S. 501, 529 (1986) (“[WJhile an intervenor is enti-
tled to present evidence and have its objections heard
at the hearings on whether to approve a consent
decree, it does not have power to block the decree
merely by withholding its consent.”). The district
court was clearly concerned that the intervenor,
whose interests were limited to use and enjoyment of
the land, asserted no property interest in the right of
way at issue. This concern does not warrant the
exclusion of the intervenors from participating as
parties in ongoing proceedings, including settlement
review proceedings. It does mean, however, that
intervenors’ consent is not required for approval of
the settlemez.t between the parties asserting property
interests.
[4] Because the intervenors were not permitted
to participate in the settlement review proceedings,
the approval of the settlement must be vacated. The
district court should not take any new action on the
settlement before considering the contentions of the
intervenors as well as the other parties.
The district court held that it lacked jurisdiction
over appellants’ cross-claims under the APA, 5 U.S.C.
§ 702, because the Attorney General’s decision to
enter into the settlement agreement was not an
“agency action” subject to judicial review under the
APA. To the extent that the district court meant that
decisions of the Attorney General are never review-
able because they do not result from notice-and-
comment decisionmaking, that conclusion was plainly
incorrect. “Final actions of the Attorney General fall
App. 10
within the definition of agency action reviewable
under the APA.” Banzhaf v. Smith, 737 F.2d 1167,
1168 (D.C. Cir. 1984) (en banc) (per curiam); see also
Morris v. Gressette, 432 U.S. 491, 500-01 (1977)
(characterizing the Attorney General’s decision not to
file an objection under the Voting Rights Act as an
agency action, but holding that Congress intended
such action to be nonreviewable); Proietti v. Levi, 530
F.2d 836, 838 (9th Cir. 1976) (holding that the Attor-
ney General’s decision whether to certify that the
federal employee defendant was acting within the
scope of his employment under the Federal Drivers
Act was a judicially reviewable agency action under
the APA).
On appeal, the United States does not contend
that the decision to enter the settlement agreement
was not an “agency action.” Instead, it interprets the
district court’s holding to mean that the Attorney
General’s decision to settle a case constitutes an
action that is “committece to agency discretion by law”
and is therefore unreviewable pursuant to 5 U.S.C.
§ 701(a)(2). See Citizens to Preserve Overton Park, Inc.
v. Volpe, 401 U.S. 402, 410 (1971) (holding that the
“committed to agency discretion by law” exception to
reviewability arises when there is “no law to apply” to
the agency action). Such a holding would be contrary
to federal law.
[5] While it is true that the Attorney General
has plenary discretion under 28 U.S.C. §§ 516 and
519 to settle litigation to which the federal govern-
ment is a party, see United States v. Hercules, Inc.,
App. 11
961 F.2d 796, 798 (8th Cir. 1992); see also United
States v. Am. Prod. Indus., Inc., 58 F.3d 404, 407 (9th
Cir. 1995), a decision that is discretionary is not
rendered unreviewable in all circumstances. Rather,
“[wlhere an action is committed to absolute agency
discretion by law, ... courts have assumed the power
to review allegations that an agency exceeded its
legal authority, acted unconstitutionally, or failed to
follow its own regulations.” Guadamuz v. Bowen, 859
F.2d 762, 767 (9th Cir. 1988); see also Ness Inv. Corp.
v. U.S. Dep’t of Agric., 512 F.2d 706, 714 (9th Cir.
1975) (holding that discretionary agency actions are
reviewable where the claim alleges “that an agency
. abused its discretion by exceeding its legal au-
thority or by failing to comply with its own regula-
tions”).
[6] The appellants’ cross-claims allege that the
United States granted the County a property interest
in public land without complying with the procedural
mechanisms for relinquishing title or issuing rights-
of-way set forth in the FLPMA. Put differently, the
appellants argue not that the Attorney General
exercised his discretion poorly but that he settled the
lawsuit in a manner that he was not legally author-
ized to do — in other words, that he “exceeded [his]
legal! authority.” Guadamuz, 859 F.2d at 767. There-
fore, under Ness and Guadamuz, the appellants’
cross-claims are reviewable, and the district court
erred in concluding otherwise.
[7] Our conclusion is in line with a decision of
the Fourth Circuit in a similar context. Relying on
App. 12
this Court’s opinion in Guadamuz, the Fourth Circuit
held, in Executive Business Media, Inc. v. U.S. De-
partment of Defense, 3 F.3d 759, 761 (4th Cir. 1993),
that the Attorney General’s decision to settle a con-
tract case was judicially reviewable where the claim
alleged that the settlement “failfed] to comply with
competitive bidding procedures.” Acknowledging the
Attorney General’s plenary power over litigation to
which the federal government is a party, the Fourth
Circuit nevertheless explained that “plenary power
means absolute authority to pursue legitimate objec-
tives and does not include license to agree to settle-
ment terms that would violate the civil laws
governing the agency.” Jd. at 762. We find the Fourth
Circuit’s reasoning persuasive in this case. We agree
with its statement that, “[wle think it alien to our
concept of law to allow the chief legal officer of the
country to violate its laws under the cover of settling
litigation. The Attorney General’s authority to settle
litigation for its government clients stops at the walls
of illegality.” Jd. at 762. We adopt the reasoning of the
Fourth Circuit in Executive Business.
[8] Here, the appellants’ cross-claims allege
that the Attorney General circumvented federal law
by entering into the settlement agreement with Elko
County. Because this Court’s precedent makes clear
that such claims are reviewable under the APA, we
reverse the district court’s dismissal of the appellants’
cross-claims and remand for consideration on the
merits.
App. 13
The appellants would like to short circuit the
district court proceedings and have us decide the
merits of their position with respect to the settle-
ment. It would not be appropriate, however, for us to
reach the merits of their position until it is fully
legally and factually developed in a record before the
district court. This is what the district court’s denial
at intervention prevented.
We are aware that other events have taken place
that may bear on the proceedings in this case. The
intervenor-appellants have filed an independent
action in district court to challenge the Forest Ser-
vice’s decision to open a road to vehicular traffic and
we are also aware that the construction of the road
has begun. We express no opinion on the merits of
this independent action or whether, on remand, any
party may successfully contend that the matter has
become moot.
Accordingly, pursuant to our earlier mandate, we
hold that the district court must permit the interve-
nors to participate as parties in advocating their
position in the Quiet Title Act action. We must vacate
the settlement approval to effectuate that result. We
also hold that the intervenors’ cross-claims are re-
viewable under the APA.
The approval of the settlement of the Quiet Title
Act claim is vacated, as is the disurict court’s order
denying the appellants’ motion to intervene. The
district court’s dismissal of the appellants’ cross-claims
App. 14
is reversed. The case is remanded for further proceed-
ings consistent with this opinion.
VACATED in part, REVERSED in part, and
REMANDED.
App. 15
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
* * *
UNITED STATES
OF AMERICA,
Plaintiff, 3:99-cv-00547-RLH-RAM
DECISION
Vs.
)
)
)
)
)
JOHN C. CARPENTER, ?
individually and as agent )
for CITIZENS UNITED ?
FOR THE SOUTH )
CANYON ROAD; 0.Q. )
JOHNSON, individually;
)
)
)
)
)
)
)
)
)
and ELKO COUNTY,
NEVADA
Defendants.
THE WILDERNESS
SOCIETY and GREAT
OLD BROADS FOR
WILDERNESS,
Intervenors and
Cross-claimants.
Before the Court is the issue of whether a pro-
posed settlement agreement between the United
States of America and the Defendants is fundamen-
tally fair, adequate, reasonable, and conforms to
applicable law. The resolution of that issue involves a
consideration of whether the statute of limitations
was violated and, if so, under the circumstances,
App. 16
divests this Court of jurisdiction, and whether there
is a colorable claim for an R.S. 2477 Right of Way. The
foregoing sub-issues need not be ultimately decided.
The Court need only determine whether there could
be sufficient substance to the Defendants’ claims to
justify the United States entering into an agreement
to settle the controversy to avoid the possibility of an
adverse decision. If the Court finds the United States
has the authority to enter into such a settlement
agreement, and that the agreement is fair, adequate,
and reasonable, the Court can then determine
whether the stay should be lifted and the parties
permitted to implement the settlement agreement.
The history of the area in question and the
procedural history will be discussed below, but it is
important to note that in pursuit of its duty to resolve
this lawsuit, this Court ordered and conducted a
week-long evidentiary hearing from April 3 through
April 10, 2006, in Reno, Nevada. At the conclusion of
that hearing the Court established a briefing sched-
ule which produced the following, which have been
considered by this Court: On June 27, 2006, Defen-
dant Elko County filed its Brief of Elko County in
Support of Settlement Agreement (#284). On June 30,
2006, the United States’ Opening Post-Hearing Brief
(#287) was filed. On the same day, The Wilderness
Society and: Great Broads for Wilderness (hereafter
“TWS”) filed their Amicus Curiae Points and Authori-
ties in Opposition to Lifting Stay of Settlement
App. 17
Agreement (#286) and an Appendix in Support of
Amicus Curiae Points and Authorities (#285).'
Thereafter was filed the Reply Brief of Elko
County in Support of Settlement Agreement (#288,
filed August 7, 2006), the Response Points and Au-
thorities of the Wilderness Society and Great Old
Broads for Wilderness in Opposition to Lifting Stay of
Settlement Agreement (#289, filed August 7, 2006),
and the United States’ Responsive Post-Hearing Brief
(#291, also filed August 7, 2006).
All the foregoing have been reviewed and studied
by the Court. Having done so, the Court determined
that no further hearing or briefing was necessary and
it now issues this written decision.
' The Appendix of TWS was objected to by Elko County
(#292) on the grounds that it contains no relevant historical
information that is different from what was presented at the
hearing, and that TWS has, in violation of the procedural
directives of the Court, attempted to supplement the evidentiary
record in a way that affords the other parties no opportunity to
answer any new allegations. It was also objected to by the
United States, in its Responsive Post-Hearing Brief (#291)
because it was not authorized and further because there is no
foundation provided for the context of the documents, that it
claims to characterize a proposed settlement that was not
adopted, and which TWS claims never to have seen, and falsely
accuses the United States of not providing a copy when the
United States was never asked to do so. While the Court finds
the objections have merit, the Court has reviewed the docu-
ments. It also finds they are of little relevance and, in fact,
provide some support for the position of the other parties, which
the Court will note later.
App. 18
BACKGROUND
The events which spawned this lawsuit, as well
as the procedural history of this lawsuit, are long and
tortured and the Court will attempt to avoid becom-
ing mired in an effort to rehearse every detail. The
area involved is called Jarbidge, Nevada, and lies in
scenic rugged mountains in northeastern Nevada.
The town of Jarbidge is presently a relatively small
community situated in the bottom of a deep and
narrow canyon through which runs the Jarbidge
River (sometimes called the West Fork of the Jar-
bidge River). The headwaters of the Jarbidge River is
in the south end of the canyon, called, appropriately,
the South Canyon. From thence the river runs north,
fed by a number of creeks, to its confluence with the
East Fork of the Jarbidge River, and ultimately
empties into the West Fork of the Bruneau River in
Idaho, which in turn empties into the Snake River.
Along the river there runs a road which extends
into the South Canyon. The ownership of the right-of-
way for that road and the right and responsibility for
its maintenance, together with the potential threat to
the bull trout which inhabit the river, form the gene-
sis of the present dispute.
The maintenance of the road has been haphazard
at best and, at times, non-existent. But in the late
1990s, after flooding made the road impassable,
public clamor from local citizens to improve the road
reached an excited pitch. A group, which became
referred to as the “Shovel Brigade” threatened to
App. 19
open the road themselves if local government officials
failed to act. In October 6, 1999, the United States
filed this action to enjoin John C. Carpenter and
others from conducting unauthorized activities on the
South Jarbidge Canyon Road. The Complaint alleged
that the group’s proposal to reopen the road consti-
tuted a trespass and violated the Endangered Species
Act (“ESA”). The District Court temporarily re-
strained the individual defendants from taking action
on the road, then dissolved that restraining order,
stayed the litigation, joined Elko County as a Defen-
dant, and ordered the parties to mediate the dispute.
Elko County asserted a counterclaim under the Quiet
Title Act (“QTA”), alleging that the South Canyon
road is an R.S. 2477 right-of-way, 43 U.S.C. §932
(repealed, see Publ. L. (4-579 (October 21, 1976)).”
Elko County claimed that the right-of-way existed
before this area was reserved by inclusion into the
National Forest System. The critical date for that
inclusion appears to be accepted by all parties as
1909. The United states filed an Amended Complaint
against Elko County, alleging claims for unauthorized
activities on National Forest System lands and viola-
tion of the Clean Water Act. 33 U.S.C. §1311(a).
After several months of mediation, the parties
publicly released a proposed settlement agreement in
June 2000, but Elko County rejected that proposal on
* Prior to its repeal, R.S. 2477 provided: “The right of way
for the construction of highways over public lands, not reserved
for public uses, is hereby granted.”
App. 20
November 8, 2000, and the parties resumed negotia-
tions before the United States Magistrate Judge. The
parties acknowledged their final agreement after a
court hearing (conducted by Magistrate Judge Robert
McQuaid) on March 2, 2001. The compromised claims
included the United States’ claim for trespass and
Clean Water Act violations stemming from the actions
taken by Elko County in 1998 and Elko County’s
quiet title counterclaim for an R.S. 2477 right-of-way
on the South Canyon road. The Agreement was
entered as an order by the Court on April 24, 2001
(#118).
On March 20, 2001, the Wilderness Society and
the Great Old Broads for Wilderness (collectively
referred to as “T'WS”) moved to intervene as a matter
of right as a counter-defendant to Elko County’s
counterclaim (#106). The Court denied the Motion to
Intervene as untimely (#123). TWS appealed. On
August 12, 2002, the Ninth Circuit Court of Appeals
found that the motion to intervene was timely and
reversed (#131). On December 17, 2002, TWS served
a motion to vacate settlement and a proposed answer
to counterclaim and cross-claims (##141, 142). In
these pleadings, TWS challenged only the provision of
the Agreement under which the United States agreed
not to contest Elko County’s assertion that it owned
an R.S. 2477 right-of-way for the South Canyon Road.
On February 4, 2003, TWS served a revised
proposed answer to counterclaim and amended cross-
claims (#151). The United States moved to dismiss the
cross-claims. Elko County moved to deny intervention
App. 21
or dismiss the TWS cross-claims. For the first time, in
its Reply to those motions, TWS provided the Court
with some authority allegedly supporting its motion
to vacate.
By Order (#165) of June 13, 2003, this Court
resolved the post-appeal motions, which included
granting intervention by TWS, but only as to the
cross-claims against the United States, which cross-
claims the Court dismissed, finding the Department
of Justice’s decision tc settle the case was not an
“agency action” reviewabie under the judicial review
provisions of the Administrative Procedure Act, 5
U.S.C. §§ 701-706. The Court then considered the
Agreement itself to determine whether the settlement
was “fundamentally fair, adequate and reasonable
and conformed to applicable law.”
At that time, the Court was troubled by the
language of the Agreement in which the United
States agreed “not to contest that Elko County has an
R.S. 2477 Right of Way” over the South Canyon Road,
finding that it appeared that the agreement not to
contest the right-of-way constituted a disclaimer of
interest under subsection (c) of the Quiet Title Act.
See 28 U.S.C. § 2409a(e). It appeared, with the lim-
ited evidence before it, that the disclaimer was tan-
tamount to the issuance of a right-of-way, triggering
certain procedural requirements which had not been
met by the Agreement. Accordingly the Court stayed
the effectiveness of the Settlement Agreement pend-
ing compliance with the procedural requirements.
App. 22
On November 14, 2003, the United States moved
for reconsideration to clarify the June 13, 2003 Order
(#173). The Court declined to lift the stay, finding
that, on the information presented, the clause still
constituted an impermissible grant of an easement to
Elko County, noting that the parties had not “devel-
oped” sufficient facts to convince the Court that Elko
County had an R.S. 2477 right-of-way or that the
QTA statute of limitations had not expired before
Elko County’s counterclaim was filed. The Court
continued the stay and ordered the parties to choose
between two options. Ultimately, Elko County refused
to proceed with either of the two options, choosing
either a legislative solution or litigation to resolve the
issue. The United States did not object to a further
stay or to either option the Court had offered, elected
to proceed and, meanwhile, notified the parties (#188)
as follows:
Between now and December 18, 2004, how-
ever, the United States intends to modify the
proposed action that is being analyzed under
the National Environmental Policy Act
(“NEPA”) TO INCLUDE AN OPTION FOR
THE United States to grant an easement to
Elko County under the applicable authority.
The environmental analysis needed under ei-
ther the Settlement Agreement or under a
grant of an easement by the USFS is virtu-
ally identical. By modifying the proposed ac-
tion, the United States anticipates that it
will be able to complete the environmental
analysis needed to issue a decision regarding
App. 23
the grant of an easement to Elko County be-
fore December 18, 2004. The United States
believes that USFS’s decision on that pro-
posal may have some effect on Elko County’s
decision whether to accept that option, in
lieu of litigation.
The Forest Service modified the scope of the
environmental analysis it had begun and completed
the environmental review and decision-making. Its
final decisions were issued on April 27, 2005 and May
31, 2005. Both decisions resulted from the Agree-
ment. The April 27, 2005, decision addressed the
South Jarbidge Canyon and access. The decision
indicates that a primitive, four-wheel-drive road will
be maintained in the South Canyon from the Pavlak
Grade to the Urdahl crossing. The decision does not
indicate who will perform the work needed to carry
out the decision. The intervenors and some individu-
als appealed the Forest Service’s decision, but the
decision was affirmed. Any further litigation will
require a separate suit in federal court.
The second decision addressed the North Jar-
bidge Canyon, from Pavlak Grade through the town
of Jarbidge and to the Idaho border, and called for
significant changes that will benefit the environment.
It also called for the replacement of a number of
bridges to improve water flow, safety and fish pas-
sage, and authorized certain watershed improve-
ments which Elko County agreed to implement. That
decision was never appealed, and is final, but has
marginal] relevance to the issues presently before the
App. 24
Court. Also, Elko County and the United States filed
a stiputatien to partially lift the stay on the Agree-
ment to a'low two bridges on that road to be replaced.
There was no objection by TWS and the b: idges have
now been replaced, with Elko County contributing
$150,000 in this effort in accordance with its obliga-
tions under the Agreement.
On June 30, 2005, the parties submitted status
reports. On August 1, 2005, Elko County filed an
“Offer of Proof” asserting that serious questions of
fact and law existed regarding its R.S. 2477 counter-
claim and those questions provided a sufficient basis
to approve the Agreement. Following a status confer-
ence on August 3, 2005, at the Court’s suggestion,
Elko County submitted a motion for an evidentiary
hearing. That motion was granted and the hearing
was set to begin April 3, 2006, in Reno, Nevada, to
address the issues of the validity of the R.S. 2477
right-of-way or easement, and whether the statute of
limitations had been violated, and, if so, whether the
violation divested this Court of jurisdiction to con-
sider the matter.
THE SETTLEMENT AGREEMENT
The Settlement Agreement in question resolves
all pending claims involving Elko County and one
individual defendant, John C. Carpenter (collectively
referred to as “Elko County”) (#118). The compro-
mised claims included the United States’ claims for
trespass and Clean Water Act violations stemming
App. 25
from the actions taken by Elko County in 1998, and
Elko County’s Quiet Title Act (“QTA”) counterclaim
for an R.S. 2477 right-of-way on the South Canyon
Road. The Settlement Agreement encompassed and
resolved the parties’ disputes over environmental and
ownership issues with respect to nearly 15 miles of
roads in Jarbidge Canyon.
In the Settlement Agreement, the United States
agreed to not “contest that Elko County has an RS.
2477 right of way on the South Canyon Road” and
specifically retained its management authority over
federally owned lands, pursuant to numerous stat-
utes, including the Endangered Species Act (“ESA”),°
16 U.S.C. § 1531, et seg., National Forest Manage-
ment Act (““NFMA”), 16 U.S.C. §4321, et seg., and the
Clean Water Act (“CWA”), 33 U.S.C. §1251, et seq.
Elko County agreed to obtain appropriate au-
thorization from the Forest Service before doing any
work on the South Canyon Road from Pine Creek
Campground to the Snowslide Gulch Trailhead. If
Elko County planned to reestablish portions of the
South Canyon Road, it was required to submit a
proposal for Forest Service approval. The United
States specifically indicated that it could not author-
ize road reconstruction without first analyzing the
* It is not made clear, but the Court gathers that the bull
trout in the Jarbidge River have not yet been added to the
Endangered Species list, but it is feared that harmful activity in
the area provides a threat that they may become so.
App. 26
proposal under NEPA and determining whether the
proposal complies with applicable federal laws. Elko
County agreed not to challenge any determination by
the United States to analyze a proposal under NEPA
or other federal laws.
Elko County also agreed to contribute $50,000 to
complete watershed projects that will benefit the
Jarbidge area watershed and agreed to perform
$150,000 worth of work on the road leading north
from Jarbidge into Idaho to reduce impacts to the
Jarbidge River. Further, the parties agreed to meet on
a regular basis to discuss road and trial maintenance
and repair. Elko County also agreed that it would not
use self-help measures to resolve future road disputes
but would, instead, use legal processes.
As noted above, after the Settlement Agreement
was filed and initially approved by the Court, the
parties began to implement it. Much has already been
accomplished toward that end.
DISCUSSION
In reaching its decision herein, the Court is
aware that it has made previous determinations,
assessments and presumptions. It is argued in some
quarters that it cannot now change its prior declara-
tions or decisions, but is bound by its previous deter-
minations. The Court reminds the parties and all
others, that prior rulings were admittedly based upon
a paucity of actual evidence and an abundance of
representations. In fact, the Court has previously
App. 27
acknowledged that it lacked sufficient information
and evidence to make certain determinations. Con-
trary to the contentions of some, the Court has not
determined that the Settlement Agreement was
invalid. Rather, it raised issues of its legality and the
propriety of its implementation. Thus it stayed its
implementation. It did not abrogate it. It has from
the beginning encouraged the parties to find a rea-
sonable and proper solution to this dispute, one which
would protect the legitimate interests of all the
parties. Elko County and the United States have
labored long and diligently to that end.
The determination of whether the Settlement
Agreement is fair, adequate, and reasonable does not
require the Court to decide whether Elko County has
an R.S. 2477 right-of-way, or whether they violated
the statute of limitations. What the Court needed to
determine was whether there was sufficient evidence
on both sides of those issues that 4 jury, or other fact
finder, could find sufficient evidence to justify a
verdict for either party. Said another way, could a
verdict for the United States or a verdict for Elko
County be justified by the evidence presented.
This Court finds there is sufficient evidence to
sustain a ruling for either, making the outcome of this
litigation sufficiently uncertain as to justify the
parties’ entering into a Settlement Agreement to
resolve the matter to avoid the possibility of an
adverse judgment.
App. 28
This Court, upon consideration of the evidence
presented and the legal arguments and authorities
presented, finds that the Settlement Agreement is
fundamentally fair, adequate, reasonable, and con-
forms to applicable law, and that the stay should be
lifted and the Settlement Agreement implemented.
I. THE GOVERNMENT’S AUTHORITY TO
SETTLE THE CASE
The United States Department of Justice’s au-
thority to settle this case is clear, and does not violate
any law or regulation, TWS’s protestations notwith-
standing. Furthermore, this Court’s prior rulings,
finding or suggesting otherwise, were erroneous and
based upon a misunderstanding of the law, and
inadequate evidence.
In Swift & Co. V. United States, 276 U.S. 311,
316-17 (1928), an intervenor in an antitrust case
challenged a consent decree entered between the
United States and several meat packers. The inter-
venor claimed the Department of Justice acted out-
side the parameters of the applicable law (the
Sherman Act). The Supreme Court rejected the
argument, finding no such limitation on the exercise
of the Attorney General’s discretion in resolving the
case, even noting that “His authority to make deter-
minations includes the power to make erroneous
decisions as well as correct ones.” /d.
Subsequent courts have relied on Swift, and on 28
U.S.C. §§ 517 and 519 (which authorize the Attorney
App. 29
General to conduct litigation on behalf of the United
States), to approve settlements negotiated by the
DOJ, even when they include more or less relief than
the DOJ could have received in a court judgment. In
an Eighth Circuit case involving the settlement of a
CERCLA cost-recovery claim, a waste generator
company appealed a consent decree on the argument
that the decree was outside the DOJ’s authority. The
Eighth Circuit rejected the argument, citing Swift,
stating that “the statutory authority of the Attorney
General to contro] litigation is not diminished with-
out a clear and unambiguous directive from Con-
gress.” United States v. Hercules, Inc., 961 F.2d 796,
798-799 (8th Cir. 1992), citing United States v. Inter-
national Union of Operating Eng’rs, 638 F.2d 1161,
1162 (9th Cir. 1979), cert. denied, 444 U.S. 1077
(1980). The Eighth Circuit held that CERCLA was
not a “clear and unambiguous express” of congres-
sional intent to limit the DOJ’s ability to settle
claims.
The Attorney General is empowered to conduct
all litigation on behalf of the United States, its agen-
cies and its officers unless otherwise provided by law.
See 28 U.S.C. § 510, 515-519. Under Section 510
Congress granted the Attorney General the authority
to promulgate regulations delegating litigation re-
sponsibilities. The Attorney General has issued such
regulations and directives that permit various De-
partment of Justice officials to compromise claims,
which have been acknowledged and upheld by the
Ninth Circuit and other courts. See United States uv.
App. 30
American Production Industries, Inc., 58 F.3d 404,
407 (9th Cir. 1995); United States v. Hercules, Inc.,
supra; Swift & Co. V. United States, supra; and
United States v. Walcott, 972 F.2d 323, 327 F.2d 323,
327 (11th Cir. 1992).
With respect to litigation involving interests in
land, the Attorney General has delegated his litiga-
tion authority to the Assistant Attorney General for
the Environment and Natural Resources Division of
the Department of Justice. See 28 C.F.R. §0.65(1)(2).
The Attorney General has also delegated the author-
ity to compromise and close civil claims to the various
Assistant Attorneys General. See C.F.R. §§ 0.160-
0.162, 0.164. Assistant Attorneys General have the
authority to further delegate settlement authority to
United States Attorneys. See 28 C.F-.R. § 0.168. TWS’s
purported authorities to the contrary are distinguish-
able.
The Settlement Agreement does not grant an
interest in land to Eiko County. The DOJ agrees only
to forebear claiming in the future that Elko County
has no such right-of-way. It is a promise not to take
legal action to enforce a specific law. It merely ac-
knowledges disputed claims about the existence of an
R.S. 2477, and compromises those claims by agreeing
not to contest them further. See Heckler v. Chaney,
470 U.S. 821, 832-33 (1985) (agency’s decision not to
take enforcement action is committed to its discretion
and is unreviewable, unless Congress explicitly limits
its discretion). Congress has not established any
explicit limitations here.
App. 31
Contrary to the arguments of TWS, the United
States’ claim for trespass fails if Elko County has a
right-of-way on the contested property. It is not
trespass if the party has a right to be there. Thus, the
Government is obtaining a quid pro quo in its com-
promise of the various claims. It, like Elko County,
avoids the possibility of an adverse ruling which
would eliminate any control or authority over the
maintenance of the road or the threat to the river and
the fish. By the settlement agreement it retains
control and obtains financial and other assistance in
the implementation of its plans and obligations to
protect the environment.
Il. THE STATUTE OF LIMITATIONS ISSUE
First, the Court acknowledges that its prior
assertion, that this might be a dispositive jurisdic-
tional issue, was in error. The jurisdictional basis for
this lawsuit is well established by the Complaint,
Amended Complaint, and the fact that the United
States is a party to the litigation. Furthermore, while
a violation of the statute of limitations might pre-
clude Elko County from obtaining a judgment to quiet
its title to the right-of-way, that would not extinguish
its claim (and defense) that it has a right-of-way.
While the title may not be quieted, if it was found
that such a right-of-way existed, the United States’
underlying claim of trespass would fail. Accordingly,
the issue of the claimed right-of-way is a relevant and
material part of the basis for the United States’
App. 32
claims. Thus, the violation, of the statute of limita-
tions neither destroys this Court jurisdiction, nor
does it remove from the case the issue of whether
Elko County has rights in the South Canyon Road.
The Supreme Court made the foregoing clear in Block
v. North Dakota, 461 U.S. 273, 291 (1983), when it
stated:
[Ujnlike an adverse possession provision,
§ 2409a(f) [now § 2409a(g)] does not purport
to effectuate a transfer of title. if a claimant
has title to a disputed tract of land, he re-
tains title even if his suit to quiet title is
deemed time-barred under § 2409a(f). A dis-
missal pursuant to § 2409a(f) does not quiet
title to the property in the United States.
The title dispute remains unresolved. Noth-
ing prevents the claimant from continuing to
assert his title, in hope of inducing the
United States to file its own quiet title suit,
in which the matter would finally be put to
rest on its merits.
The Settlement Agreement here recognizes the
foregoing by having the parties agree to not further
contest the issue (to protect each from an adverse
decision), but to acknowledge each other’s claim and
to work together to accomplish those things in the
best interest of each. Accordingly, jurisdiction is not
an issue which would preclude consideration ef or
implementation of the Settlement Agreement. It is for
these reasons that the authorities cited by TWS are
inapplicable. There simply is no disposal of an inter-
est in government land, much less an unauthorized
App. 33
disposal. There is a huge gulf between granting
someone an interest in land and refusing to argue
about whether they have such an interest. To avoid
the risk of an adverse finding, the Government has,
in the spirit of compromise, elected to do the latter.
Having addressed the jurisdictional issue of the
statute of limitations, the Court addresses the ques-
tion of whether the statute of limitations was vio-
lated. The Court need not, and does not, reach a
conclusion about this issue. But it does find that
there is sufficient evidence to sustain a judgment for
either party on this issue. Factually the issue is far
from clear.
The statute of limitations in question, 28 U.S.C.
§ 2409(f), requires that a civil action (to quiet title)
must be commenced within twelve years of the time
the claimant or his predecessor in interest knew or
should have known of the claim of the United States.
Even the United States acknowledges that it is
not clear whether the 12-year period had run when
Elko County made its claim in 1999, and that from
the evidence presented at the hearing one could argue
that no action by the United States prior to 1998
could reasonably be construed as asserting exclusive
ownership or denying the right-of-way’s very exis-
tence. Indeed one could so argue and Elko County
has.
For several decades the Government and Elko
County enjoyed a working relationship, under a
number of Cooperative Agreements, in which both
App. 34
shared in the costs and responsibilities of mainte-
nance of the South Canyon Road. Elko County con-
tends that during the 1960s, 1970s and up until the
end of 1989, when the Wilderness area was expanded
to Snowslide Gulch, it continually maintained the
Road between Pavlak Grade and Snowslide Gulch.
The original Wilderness designation boundary was at
the Perkins Cabin. The Road was closed south from
Snowslide Gulch in 1970 (which was not contested by
Elko). The United States gave notice that it was
contemplating expanding, and then did expand the
Wilderness boundary to Snowslide Guich in Decem-
ber 1989. But Elko County makes no claim of a right-
of-way south of Snowslide Gulch, acknowledging that
it significantly moved the location of the road out of
the right-of-way area and up the side of the canyon.
Elko County’s claim, and the Settlement Agreement
only affects the road to Snowslide Gulch, Elko
County’s claim was made within twelve years of that
expansion of the Wilderness area.
Even in the 1970s, when a turnaround was
placed at Snowslide Gulch, this was done with the
full consent and approval of Elko County, because the
road was considered unsafe and too expensive to
maintain properly, and not unilaterally by the United
States nor in adversity to Elko County’s interests.
When the citizens group reopened the road without
Government approval, in 1986, Elko County contends
the response was coordinated between the United
States and Elko County and not hostile to its inter-
ests.
App. 35
The United States, to the contrary, could argue
that Elko County has admitted that the South Can-
yon Road is a National Forest System Road. The 1932
map introduced by Elko at the hearing shows a list of
“Forest Service Roads to be Maintained by Elko
County.” The South Canyon Road is on that list.
However, it is identified as “County road to head of
Jarbidge Canyon,” providing a counter argument that
the United States recognized it as a “County” road
(versus a Forest Service road) even though it was to
maintain it.
This discussion could continue, but it is unneces-
sary. The Court need not, and will not, make a final
determination on the statute of limitations issue, but
it must confess that the evidence presented to date
appears to favor Elko County on the issue.*
lil, THE EXISTENCE OF A R.S. 2477 RIGHT-
OF-WAY
Like the statute of limitations issue, the Court
need not and will not make a definitive determination
about the existence of an R.S. 2477 right-of-way, nor
the lack thereof. Unlike the statute of limitations
issue, no one appears to have the edge on this issue.
The vast majority of the evidence presented to the
Court at the hearing, and subsequent thereto, was
presented to address this issue.
“ This does not preclude the presentation of additional
evidence or testimony should the matter actually go to trial.
App. 36
Most of the evidence, both in favor of and in
opposition to the question, is circumstantial and
would require the fact finder to draw conclusions that
seemed most reasonable. This is not an issue that
could be addressed by summary judgment. There are
too many material issues of fact that cannot be con-
cluded as a matter of law or to which the parties
agree. The significance of the circumstantial evi-
dence, or lack thereof, would, of necessity, be a very
subjective determination.
By way of example, the Court will identify some
of the evidence and testimony and the possible con-
clusions or inferences that can be drawn therefrom.
The following will not be an exhaustive treatment of
all the evidence.
The parties called witnesses expert in various
fields. The Court declines to render judgment on the
level of their expertise or the validity of their opin-
ions, but will note some of the weaknesses in the
bases of their opinions or conclusions.
The purpose of the following is to demonstrate
that the evidence is far from conclusive as to any
position or claim, and that the United States and
Elko County were justified in reaching a compromise
settlement to avoid the risk of a potential adverse
judgment had the litigation proceeded to judgment.
Precisely what is required to establish an R.S.
2477 right-of-way is an unsettled issue. For that
reason, for purposes of making the decision here, the
Court begins with the premise that the federal statute
App. 37
in question, which established R.S. 2477 right-of-
ways, and which was then repealed without prejudice
to any existing right-of-ways established under the
law, requires a construction in favor of the United
States. That premise, however, does not require the
Court to find for the United States merely because
the evidence is circumstantial. The Court also begins
with the premise that the right-of-way can be estab-
lished by evidence of a pathway, trial or wagon road,
so long as there is evidence of sufficient use by hu-
mans. Animal trails do not qualify. But regular use is
not precluded by the fact that the use is seasonal
because of the winter snows or late springs. Lastly,
the Court does not believe that the law requires there
be a specific document which identifies and sets aside
the road as an R.S. 2477 road or right-of-way. Evi-
dence that it was used by the public and considered a
route for human travel could be sufficient.
There is no official documentary evidence that
clearly identifies actions specificaily intended to
establish an R.S. 2477 right-of way. Neither are there
any official documentation that establishes that an
R.S. 2477 right-of-way was rejected nor denied.
It is uncontested that in order for Elko County to
have a R.S. 2477 right-of-way, it had to be established
by the time the land was withdrawn and the area
identified as part of the National Forest.
There was much testimony about the mining,
and cattle and sheep ranching activities in the late
1900s. Evidence was presented about the severe
App. 38
winter of 1889-90 (that, incidently, affected much of
the western part of the nation) which killed a large
number of the cattle on the large cattle ranches in the
area. Following that winter, the ranches turned from
cattle to sheep, and by 1906 there were slightly over
392,000 sheep belonging to the 43 owners grazing on
the Brune: u Addition (which included the Jarbidge
area), and nearly a million sheep by 1908, just prior
to the reservation of the Bruneau addition. There is
evidence that some of these sheep used the Jarbidge
area as their summer range. Elko County’s position is
that the easiest and most likely point of access would
have been north, up the Mary’s River Basin and over
the easily accessible summit just south of Perkins
Cabin at the extreme southern end of the South
Canyon.
The United States discounts this argument for a
variety of reasons, but its expert never studied the
possibility of this access route, notwithstanding the
fact that there were ranches, the access to which
would have facilitated the movement of the sheep
through that area, the topography suggests that it is
as easy as, if not an easier access route than the
routes where the present roads were subsequently
established, and the Forest Service itself has subse-
quently improved a trail from the South Canyon over
the summit to the headwaters of the Mary’s River
Basin. Of significance is the fact that that trail is very
short.
The United States also argues that there was a
survey conducted by Dennis Scully in 1896 which
App. 39
traversed the South Canyon but did not identify a
trail through South Canyon. However, it appears that
he also did not make a report of mineralization in the
South Canyon, as he was required to do, and his
survey was sufficiently deficient that it had to be
redone. What conclusions should be made of his
record is up for question.
There is no oral or written history of any road or
trail in the South Canyon prior to 1894, nor do any
maps show any trial or road prior to that time. Ap-
parently there are not even any maps which show a
road before 1911. But the existence of a road on a
map in 1911 does not preclude a finding that the road
was built before that time. Indeed, TWS’s Appendix,
Exhibit C, contains a letter from Robert D. Williams,
of the United States Department of Interior, Fish and
Wildlife Office, dated February 17, 1998, to Ben
Seminoe, Assistant Forest Supervisor, makes the
following statement on page 2:
Data indicates 65 percent of the Jarbidge ba-
sin has a 45 percent or greater slope, and
was heavily grazed and logged at the turn of
the century. Debris from the various high
gradient side drainages such as Snowslide,
Gorge, and Bonanza gulches provide the
river-bottom with large volumes of angular
rock material. Historic data indicates this
material has moved down these gulches at
regular intervals, destroying the road at
crossings, and changing the river channel.
[emphasis added].
App. 40
If logging operations were conducted at the turn
of the century, it would be a reasonable conclusion
that roads were established to facilitate those logging
operations.
The Court finds the arguments about whether
Native Americans used the canyon or not to be less
than compelling for either side. It is pure speculation.
There is a great deal of evidence about mining
activities in the area beginning with Mormon pros-
pectors in the area as early as 1860; the establish-
ment of the Mardis Mining District, a few miles from
the Jarbidge Canyon, in 1872; John Pence and sheep
herder Isham’s discovery of ore above the canyon floor
in the 1880s; and the Winters placer mining claims of
April 1894 in and around the South Canyon.
Both the United States and TWS argue that
these claims precluded the establishment of a road,
notwithstanding that the required work to “prove up”
the claims was never done. They argue that this does
not void the claims until a subsequent claim chal-
lenges the original claim or a governmental entity
challenges it. It is probably an issue which combines
questions of fact and law, but the establishment and
use of a road may well constitute a sufficiently unan-
swered challenge to the claims to consider them void,
at least as to the area of the right-of-way. Further-
more, it would be the claim owners, not the United
States (unless it is declaring the claims void) nor
TWS, who would have standing to challenge the
right-of-way.
App. 41
The existence of the mining claims would seem to
argue for, not against, the existence of a road (the
Court uses the term here generically to include a
public trail or path) to provide access to the claims.
The most compelling circumstantial evidence of
the existence of a road is the direct evidence regard-
ing the land claims and the existence of the Perkins
Cabin. Perkins Cabin lies at, or near the end of the
old South Canyon Road, and near the summit beyond
which lies Mary’s River Basin. But it is not only the
proximity of Mary’s River Basin that makes the
cabin’s existence significant, however.
The record is unclear when the Perkins Cabin
was built. It is clear that it was purchased by William
F. Mahoney in 1905, so it had to be built before that
time. If the fact finder accepts the United States’ and
TWS’s claim that the access to the Jarbidge Canyon
was initiated at points north of the South Canyon,
common sense would require that there had to be a
road from the area north of the South Canyon, into
the South Canyon to the cabin site, both to bring the
materials to construct the cabin, and to access the
cabin after it was built. Even the United States’
witness, Ms. Richa Wilson’s report noted that in a
1912 map there was depicted a route from Jarbidge
Canyon through the divide, south of Perkins’ Cabin to
the Mary’s River Basin. She believes the route was
begun in 1910, after the Bourne gold discovery, but
there is nothing to preclude its existence even prior to
that time. If it was a viable route then, it was no less
viable earlier. Mr. Mike Price’s topographical analysis
App. 42
shows that route to be five miles shorter and take two
hours less time to traverse than the other routes into
the Canyon.
While the evidence of activity in the last three
decades of the 1800s is somewhat uncertain and
unspecific as to the existence of a road, the above is
clear evidence of a road at least four or five years
before the critical year of 1909 in connection with the
establishment of the National Forest there. Through-
out the years thereafter, there is no question that a
road existed. The only question is whether it was a
County Road or a Forest Service Road, and that issue
is discussed above.
This Court will not, and need not, make an
ultimate finding with respect to the existence of a
road, and whether it qualifies as an R.S. 2477 right-
of-way, the foregoing, together with ali the other
evidence produced at the hearing clearly establishes a
colorable claim which the United States could not and
cannot ignore as a risk of a potential adverse deci-
sion. Should it lose to Elko County on this issue, it
would likewise lose all control or input into the future
maintenance of the Road. The Settlement Agreement
avoids that risk and permits the United States to
fulfill its responsibilities to protect the environment
and the public.
App. 43
IV. THE SETTLEMENT AGREEMENT IS FAIR,
ADEQUATE AND REASONABLE
The opposition to the Settlement Agreement by
TWS is three-fold. (1) It contends that Elko County
has no R.S. 2477 right-of-way. (2) It contends that
even if it has a right-of-way, the statute of limitations
has run precluding it from asserting a claim for a
right-of-way and denying this Court jurisdiction in
this matter. And, (3) it contends that the Settlement
Agreement transfers to Elko County an interest in
land, specifically a right-of-way without complying
with the FLPMA (Federal Land Policy and Manage-
ment Act of 1976-43 U.S.C. § 1701, et seq.).
In sum, the stay of the implementation of the
Settlement Agreement is based on a concern by the
Court that one or more of these bases may be valid.
Now, having the benefit of the presentation of evi-
dence during the five-day hearing, together with the
briefing by the parties regarding the applicable law
and the facts, this Court concludes that each and all
of the contentions are faulty and without merit.
First, there has been no determination that Elko
County has an R.S. 2477 right-of-way. There is only
the risk, given the evidence available, that the Court
could find that such a right-of-way exists. Second,
there has not been a determination that the statute of
limitations has run, and the odds are that the Court
could find it has not. However, even if it is deter-
mined that the statute of limitations has run, that
neither destroys this Court’s jurisdiction over this
App. 44
matter nor precludes Elko County from asserting its
claim as a defense against the claims of the United
States. Accordingly, this is no issue at all. Third, the
Settlement Agreement does not convey or transfer
any interest in land, by right-of-way or otherwise. It
merely agrees that for purposes of the Settlement
Agreement, the United States will not further contest
the issue. Accordingly, Elko County’s claim remains
dorment.
There being no basis for staying the implementa-
tion of the Settlement Agreement, the Court turns to
a consideration of whether the Settlement Agreement
is fair, adequate, and reasonable.
The Settlement Agreement is clearly fair, both
procedurally and substantively. The negotiations
which led to the agreement was conducted between
two governmental entities with qualified counsel.
Proposals were made with some rejected, followed by
further negotiations. The settlement process involved
the participation of neutral U.S. Magistrate Judge,
Robert A. McQuaid, and included two days of hear-
ings before Judge McQuaid. There were and are
several issues of law and fact in this case on which
the United States and Elko County intensely dis-
agree, including whether and when an R.S. 2477
right-of-way was created and what the interests and
rights of the parties to the South Canyon Road are.
Neither party can claim that the resolution of any of
these issues would result in a clear victory. The
settlement is by no means lopsided in anyone’s favor.
Although Elko County does no longer face a challenge
App. 45
to its claim, it must still comply with all federal rules
and regulations before performing any improvements
on the Road. Although the public will continue to
have access to the campgrounds located near the
Road and the boundary of the Jarbidge Wilderness
Area, the portion of the Road or trail located in the
Wilderness Area is, and will be, closed to vehicular
traffic. The interests and needs of both the United
States and Elko County, as well as the public, are
protected and furthered by this agreement.
It is important to remember that both TWS and
the Court’s only objection to the Settlement Agree-
ment was the affect of the “do not contest” clause.
That objection has been resolved to the satisfaction of
the Court, but TWS apparently still holds to its view.
As noted above, the Forest Service, in an obvious
attempt to assure that the Settlement Agreement was
not contrary to is own procedures and regulations,
completed the environmental review and decision
making procedures required under the FLPMA. It
issued decisions on April 27, 2005 and May 31, 2005.
The first addressed the South Canyon Road. It was
appealed by TWS and others, and was affirmed. The
second decision has not been appealed. TWS does not
even seriously challenge the Forest Service decision
to reopen and maintain the South Canyon Road as a
high clearance vehicle route. However, it filed a
Protective Administrative Appeal to protect its rights,
with a promise to withdraw that appeal if Elko
County did not appeal. Elko County did not appeal,
but TWS has not withdrawn the appeal as promised.
It apparently continues to labor under the mistaken
App. 46
view that the Settlement Agreement conveys to Elko
County an interest in land. It is hoped this decision
will allay those fears.
This Court stayed the Agreement for fear that
the United States had granted a right-of-way to Elko
County without having fulfilled the requirements of
FLPMA and NEPA. That decision was based upon
insufficient evidence, which has since been rectified.
Furthermore, even assuming it was a justified basis
for staying the Agreement, that basis no longer exists.
The Government has now completed all environ-
mental studies that these governing statutes require.
This Court finds that the Settlement Agreement
is fair, adequate and reasonable, and conforms to all
applicable law. It further finds that the Department
of Justice has full authority to enter into this com-
promise Settlement Agreement, and that it is in the
best interests of the public and the governmental
entities involved. The Court, having been provided
with good and sufficient evidence and law, further
finds that its previous concerns regarding the Settle-
ment Agreement were without basis and the Stay
should be lifted and the Settlement Agreement im-
plemented in full and without delay.
IT IS SO ORDERED, this 19th day of September,
2006.
/s/ Roger L. Hunt |
ROGER L. HUNT
United States District Judge
App. 47
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
UNITED STATES ) CV-N-99-547-
OF AMERICA, ) DWH(RAM)
Plaintiff, | ORDER
v. ) (Filed Jun. 13, 2003)
JOHN C. CARPENTER,
individually and as agent
for CITIZENS UNITED
FOR THE SOUTH CANYON
ROAD; 0.Q. JOHNSON,
individually; GRANT
GERBER, individually; and
ELKO COUNTY, NEVADA,
Defendants,
THE WILDERNESS
SOCIETY and GREAT
OLD BROADS FOR
WILDERNESS,
Applicants for
Intervention.
Before the court are a number of interrelated
filings. Intervenors, The Wilderness Society and
Great Old Broads for Wilderness (collectively “T'WS”),
filed a motion on December 17, 2002 to vacate the
settlement and for a scheduling order, which includes
a request that this court formally grant their motion
to intervene (#142). At the time of its submission, this
motion lacked supporting points and authorities.
App. 48
Defendant Elko County and plaintiff, the United
States, filed oppositions (##145, 147) and TWS re-
plied (##157, 158). TWS eventually filed points and
authorities in support of its motion to vacate on April
11, 2002 (#155), but that filing was identical to its
original motion (#142). In its reply to the United
States’ opposition, however, TWS did submit exten-
sive points and authorities (#157). Because TWS'’s
reply allegedly contained arguments not raised in its
motion, the United States filed a motion for leave to
file a surreply (#163).
The second submission before the court is Elko
County’ motion to deny intervention, or in the alter-
native, to dismiss under Fed. R. Civ. P. 12(b)(6) (#145,
146). TWS filed an opposition (#159) and Elko County
replied (#160).
Finally, the United States filed a motion to
dismiss TWS’s cross-claims (#154) on jurisdictional
grounds, to which TWS filed an opposition (#156) and
the United States replied (#162).
Since TWS’s reply arguably contains issues not
raised in its motion, the United States’ motion for
leave to file a surreply is granted and this court will
consider all of the filings currently before the court.
Background
This case involves a dispute over ownership
of the South Canyon Road (the “Road”) also called
Forest Service Road #064; iocated in Elko County.
App. 49
Nevada. The Road is a dirt track that runs along the
West Fork of the Jarbidge River in the Humboldt-
Toiyabe National Forest and leads into the Jarbidge
Wilderness at the Snowslide Gulch trail head, all
managed by the United States Forest Service (“Forest
Service”). Historically, the Road has been prone to
dirt slides and flooding that have forced the Forest
Service to close it for extended periods of time both
for safety reasons and to protect environmental
resources. (TWS’s Reply (#157), Ex. 3.) The West Fork
Jarbidge River is home to Bull Trout, which was
listed as a threatened species in 1999.
As early as 1975, the Forest Service and resi-
dents of Elko County have wrangled over whether the
Road should remain open to vehicular access or closed
to prevent further detrimental impact to the river.
(See id.) According to Elko County; before the current
controversy, the Road provided “public and systematic
access for commercial, recreational and religious
purposes from at least the intersection of what is
known as Pavlak Grade to what is known as Perkins
Cabin, for Native Americans, ‘ *appers, miners, live-
stock owners, homesteaders, and visitors.” (Elko
County’s Answer and Counterclaim (#9) at 6.) Follow-
ing a flood in 1995 when the Road was again washed
out, the Forest Service elected to rebuild the Road, a
decision that was appealed by Trout Unlimited, citing
concerns over possible damage to Bull Trout habitat.
(TWS’s Reply (#157), Ex. 6.) On appeal, the Regional
Forester remanded the decision back to the Forest
Supervisor for further analysis of future effects on the
App. 50
Bull Trout caused by reconstruction of the Road and
the possibility that the Road might fail in the event of
future flood event. (/d.)
During this time period, Elko County requested
that the Forest Service grant it a right-of-way in the
Road, which the agency denied because of continued
concern over the Bull Trout. (/d. at Ex. 8.) Thereafter,
the Elko County Board of Commissioners passed a
resolution asserting ownership over the Road and
ordering that the Elko County Road Department
rebuild it. dd. at Ex. 10.) The Forest Service re-
sponded by letter on July, 21, 1998 that “[wle are
unaware of any evidence that would support the
position that the County has a right-of-way to main-
tain or reconstruct the South Canyon Road.” (/d. at
Ex. 11.) Nevertheless, Elko County employees began
rebuilding the Road using heavy equipment in late
July 1998. Ud. at Ex. 6.)
The Forest Service filed this suit in October 1999
against several Elko County individuals involved in
the Road reconstruction claiming that the Road is
located on land owned by the United States govern-
ment. The government sought injunctive relief
through a finding by the court that any attempt to
restore the Road without the required federal permits
constitutes common law trespass and will harm the
Bul) Trout, resulting in a “take” in violation of the
Endangered Species Act. (Compl. (#1) at {{ 26, 31.)
After filing its complaint, the government imme-
diately moved the court for a temporary restraining
App. 51
order and preliminary injunction against the named
defendants preventing them from undertaking any
construction activity to restore the Road. On October
7, 1999, this court granted the government’s motion
and issued an order (#3) that prevented the named
defendants and anyone acting in concert with them
from. “performing or assisting others to perform,
directly or by implication, any work on the South
Canyon Road or in the West Fork of the Jarbidge
River.”
Thereafter, as allowed by LR 16-5, this court
referred this case to mediation at the U.S. Institute
for Environmental Conflict Resolution (#5). In the
same order, pursuant to Federal Rule of Civil Proce-
dure 21, this court ordered Elko County to be named
as a defendant to the lawsuit (#5). Elko County filed
an answer and counterclaim (#9) pursuant to the
Quiet Title Act (“QTA”), 28 U.S.C. § 2409a, seeking a
declaration by this court quieting title to an easement
on the Jarbidge South Canyon Road under the aus-
pices of Section 8 of the act of July 26, 1866, 14 Stat.
253, formerly section 2477 of the Revised Statutes of
the United States (“R.S. 2477”).
Through a mutually agreed upon neutral media-
tor, the parties attempted for almost six months to
1
When the parties agreed to participate in mediation and
take no further action on the South Canyon Road absent further
order of this court. the temporary restraining order was dis-
solved (#10).
App. 52
settle this case in early 2000. A proposed settlement
agreement was reached in June 2000 and later re-
jected by the Elko County Commissioners in Novem-
ber 2000. The case was then placed on a fast-track
trial schedule. The parties requested to continue
settlement talks and later were invited to a confiden-
tial settlement conference before Magistrate Judge
Robert McQuaid which lasted four days. On March 2,
2001, the parties notified the court that a tentative
settlement agreement had been reached and Judge
McQuaid lifted the confidentiality order, thereby
allowing public dissemination of the proposed settle-
ment agreement. (See #103.) Important to the pend-
ing motions now before this court, the settlement
agreement contained the following provision: “The
United States will not now or in the future contest
that Elke County has an R.S. 2477 right of way for”
the South Canyon Road. (Settlement Agreement,
Stipulation and Order (#118), Ex. 1 at 2.)
On March 30, 2001, TWS filed a motion to inter-
vene as a matter of right in this action, seeking to
intervene as a defendant to Elko County’s counter-
claim. This court denied that motion as untimely (see
#123), and TWS appealed to the Ninth Circuit Court
of Appeals. The Ninth Circuit reversed and remanded
with instructions to grant the motion and conduct
further proceedings consistent with its opinion.
United States v. Carpenter, 298 F.3d 1122, 1125-26
(9th Cir. 2002).
TWS subsequently filed a “proposed” answer to
Elko County’s counterclaim and cross-claims against
App. 53
the United States (#141), which it revised on Febru-
ary 4, 2003 (#151). The cross-claims contained causes
of action under Forest Service regulations, 36 C.F.R.
Pt. 251, the Federal Land Policy Management Act
(“FLPMA”), 42 U.S.C. § 1701, et seg., and the Na-
tional Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4332. Intervenors request that this court dismiss
Elko County’s counterclaim, enter judgment in favor
of their cross-claims, and provide relief in the form of
(1) a declaration that the United States’ recognition of
a right-of-way in favor of Elko County violated
FLPMA, NEPA, and Forest Service regulations; (2)
denial of the Stipulation and Order proposed by the
United States and the County’; (3) a permanent
injunction barring the United States from recognizing
a right-of-way in favor of the County without comply
with FLPMA, NEPA, and Forest Service regulations;
{4) reasonable costs and fees; and (5) other relief
deemed proper by this court. Elko County and the
United States filed motions seeking to have the
claims against them dismissed (#146, 154). TWS also
filed a motion to vacate the settlement and for a
scheduling order (#142). The court addresses these
motions below.
* Since a stipulation and order acknowledging the settle-
ment has already been entered (#118), this court will address
TWS’s request for a denial of the proposed stipulation and order
as their motion to vacate the settlernent (#142).
App. 54
II. Analysis
A. Local Rule 7-2 and Motion for Leave to
File Surreply
Although intervenors’ motion to vacate the
settlement and for a scheduling order (#142) lacked
point and authorities in its support, their later sub-
mission, the filing of extensive points and authorities
in reply to the United States’ opposition, and an
opportunity for the United States to file a surreply
sufficiently cured the initial omission. Local Rule 7-
2(a) requires that “falll motions ... shall be sup-
ported by a memorandum of points and authorities.”
The rule sets no deadline in which the points and
authorities must be submitted, but presumably, an
opposing party needs to consider them in order to
adequately respond within the 15 days allowed. See
L.R. 7-2(b). When contemplating how to address
noncompliance with local rules, the court must con-
sider “(1) the public’s interest in expeditious resolu-
tion of litigation; (2) the court’s need to manage its
docket; (3) the risk of prejudice to the [opposing
party]; (4) the public policy favoring disposition of
cases on their merits and (5) the availability of less
drastic sanctions [than dismissal].” Henderson ov.
Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
Here, intervenors filed what they termed points
and authorities in support of their December 17, 2002
motion on April 11, 2003 (#155). As intervenors
identified, however, these points and authorities were
identical to the original motion and contained no
App. 55
citations to authorities that might support their
arguments. (See ##142, 155.) Nevertheless, their
reply (#158) contained extensive points and authori-
ties in support of their positions, to which the United
States filed a motion for leave to file a surreply
(#163). Although this court does not condone interve-
nors’ untimely conduct, the public interest in the
speedy resolution of a case that has already con-
sumed vast judicial resources convinces this court to
consider the filings as they now exist before the court.
See Henderson, 779 F.2d at 1423. Accordingly, this
court will not deny the intervenors’ motion on LR 7-2
grounds. Rather, the motion of the United States for
leave to file a surreply (#163) is granted and the court
will consider the memorandum of points and authori-
ties accompanying that motion and accompanying the
intervenors’ reply (#158).
B. Motion to Intervene
In its motion to vacate the settlement and for a
scheduling order, TWS requested that this court
formally grant their motion to intervene as plaintiffs
and as defendants to Elko County’s counterclaim.
(#142 at {| 8(a).) Although this court had denied
TWS’s motion to intervene solely on timeliness
grounds and therefore had never addressed the
remaining elements required to intervene as of right
(see #123), the Ninth Circuit remanded with explicit
instructions for this court to grant the motion. See
United States v. Carpenter, 298 F.2d 1122, 1125-26
(9th Cir. 2002). Accordingly, the law of the case
App. 56
requires that this court grant TWS’s motion to
intervene (#106) and deny Elko County’s motion to
deny intervention (#146).
C. Alignment of Intervenors
Although TWS initially sought only intervention
as defendant to Elko County’s counterclaim (see
#106), it now seeks to intervene as a plaintiff as well
(see #142 at 4 8(a)) in order for this court to consider
its cross-claims against the United States. Generally,
“an intervenor of right ‘is treated as if he were an
original party and has equal! standing with the origi-
nal parties.’” Brown v. Demco, Inc., 792 F.2d 478,
480-81 (5th Cir. 1986), quoting Donovan v. Oil,
Chemical, and Atomic Workers Intl Union, and tits
Local 4-23, 718 F.2d 1341, 1350 (5th Cir.1983), cert.
denied, 466 U.S. 971 (1984). The intervenor, there-
fore, can participate fully in the litigation. League of
United Latin Am. Citizens v. Wilson, 131 F.3d 1297,
1304 (9th Cir. 1997). In determining whether the
intervenor will be treated as a plaintiff or defendant,
the court is required “to penetrate the nominal party
alignment and to consider the parties’ actual adver-
sity of interest.” Dev. Fin. Corp. v. Alpha Hous. &
Health Care, Inc., 54 F.3d 156, 159-60 (3rd Cir. 1995)
(internal citations omitted). It is the duty of the court
to “‘look beyond the pleadings, and arrange the
parties according to their sides in the dispute.’” City
of Indianapolis v. Chase Nat. Bank of City of New
York, 314 U.S. 63, 69 (1941), quoting Lawson uv.
Columbia Ave. Sav. Fund, Safe Deposit, Title & Trust
App. 57
Co., 197 U.S. 178 (1905). As the Supreme Court has
concluded, “Whether the necessary collision of inter-
est exists is therefore not to be determined by me-
chanical rules. It must be ascertained from the
principal purpose of the suit and the primary and
controlling matter in dispute.” /d. (internal quota-
tions omitted).
Here, intervenors’ alignment as plaintiffs is
appropriate because their interests are adverse to
Elko County’s claim to an RS 2477 right of way, the
existence of which is the primary matter in dispute.
TWS’s cross-claims against the United States to force
compliance with federal statutes and regulations do
not alter the fact that ownership of the South Canyon
Road is the foremost controversy in this suit. Thus,
even if TWS initially sought intervention solely as a
defendant to Elko County’s counterclaim, their wish
to enter the suit as a plaintiff in order to bring cross-
claims against the United States is not precluded. See
id. As a practical matter, however, since it has no
property interest in the South Canyon Road, TWS
has no cause of action against defendants in trespass
and can not litigate a Quiet Title Act claim. See infra,
Pt. I1.D.2; Long v. Area Manager, 236 F.3d 910, 915
(8th Cir. 2001). Only to the extent, then, that TWS
brings cross-claims against the United States, is its
motion to intervene formally granted by this court.
App. 58
D. Standing
Generally, no independent standing inquiry
is necessary for intervention because standing is
implicit in the “protectable interest” requirement of
Rule 24. Portland Auaubon Soc. v. Hodel, 866 F.2d
302, 308 n.1 (9th Cir. 1989). However, since the Ninth
Circuit instructed this court to grant TWS’s motion
before a thorough Rule 24 analysis could be com-
pleted, a standing evaluation is necessary here. See
United States v. Carpenter, 298 F.3d 1122, 1125-26
(9th Cir. 2002).
TWS must meet both constitutional and pruden-
tial requirements in order to have standing before
this court. To satisfy Article III’s case or controversy
requirement, a litigant must establish (1) that he has
suffered an injury-in-fact; (2) that the injury is trace-
able to the challenged action of the defendant; and (3)
that the injury can be remedied by a favorable deci-
sion. Clark v. City of Lakewood, 259 F.3d 996, 1006
(9th Cir. 2001). Importantly, a plaintiff “must show,
first and foremost, an invasion of a legally protected
interest that is concrete and particularized and actual
or imminent.” Arizonans for Official English v. Ari-
zona, 520 U.S. 43, 64 (1997) (citations omitted). The
Ninth Circuit has held that “[iJntervenors in envi-
ronmental litigation satisfy the injury in fact re-
quirement by showing that group members have
direct contact with the environmental subject matter
threatened by an adverse decision.” Idaho Farm
Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1398 (9th Cir.
1995). Moreover, “[t]he recreational or aesthetic
App. 59
enjoyment of federal lands is a legally protected
interest whose impairment constitutes an actual,
particularized harm sufficient to create an injury in
fact for purposes of standing.” Desert Citizens Against
Pollution v. Bisson, 231 F.3d 1172, 1176 (9th Cir.
2000); see Friends of the Earth, Inc. v. Laidlaw Enuvtl.
Servs., Inc., 528 U.S. 167, 183 (2000).
Beyond meeting constitutional requirements, the
intervenors’ claims must also fall within the zone of
interests sought to be protected by the federal stat-
utes they evoke in order for prudential considerations
to warrant awarding them standing. The Administra-
tive Procedure Act (APA) grants standing in federal
court to “any person suffering legal wrong because of
agency action, or adversely affected or aggrieved by
agency action within the meaning of the relevant
statute.” 5 U.S.C. § 702. The Supreme Court has
interpreted this provision to require that the “interest
sought to be protected by the complainant is arguably
within the zone of interests to be protected or regu-
lated by the statute.” Assoc. of Data Processing Serv.
Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970).
1. Standing to Bring Cross-Claims
In this case, TWS has proffered adequate evi-
dence to demonstrate that it satisfies the constitu-
tional and prudential standing requirements to bring
its cross-claims against the United States. The
affidavits of Marjorie Sill and Kathleen Fite evince
that members of TWS have suffered harm to their
{
Si aA
App. 60
recreational and aesthetic enjoyment of the Jarbidge
Wilderness as a result of human-made disturbances
to the South Canyon Road. (See Intervenors’ P. & A.
Reply (#158), Exs. A and B.) Their injuries were
caused by the activities of defendants to rebuild the
washed out road and will continue to exist because
the settlement agreement virtually ensures that the
Road will remain open to motorized use, causing
damage to the river and the surrounding environ-
ment. (See id.) Moreover, a judicial finding in their
favor — in other words, this court vacating the settle-
ment and requiring that the United States comply
with NEPA, FLPMA, and Forest Service regulations —
would redress these injuries because compliance
would instigate the carrying out of a host of proce-
dural formalities that TWS requests. See Cantrell v.
City of Long Beach, 241 F.3d 674, 682 (9th Cir. 2001)
(finding that in cases of procedural injuries, plaintiffs
do not need to “demonstrate that the ultimate out-
come following proper procedures will benefit them”).
As a result, TWS satisfies the Article III] standing
requirements.
In addition, the zone of interest encompassed by
the statutes and regulations cited by TWS includes
their claims. The laws cited by TWS mandate that
government agencies follow certain procedures before
granting a right-of-way on government land. Ecologi-
cal and aesthetic injuries resulting from road building
activities on the South Canyon Road, where TWS’s
members recreate and do scientific study, are within
the zone of interests of statutes designed to ensure
App. 61
that certain procedures are followed in the manage-
ment of public lands. See Port of Astoria, Or. v. Hodel,
595 F.2d 467, 476 (9th Cir. 1979) (finding that the
“ecological and aesthetic injuries” resulting from the
construction and operation of a plant in areas where
the group members lived, worked, or spent their
leisure time were within NEPA’s zone of interests). As
a result, TWS has standing to bring its cross-claims
against the United States.
2. Standing to Defend Against Elko
County’s Quiet Title Act Counterclaim
However, TWS has neither constitutional nor
prudential standing to defend against Elko County’s
counterclaim under the Quiet Title Act (QTA). The
QTA provides in pertinent part: “The United States
may be named as a party defendant in a civil action
... to adjudicate a disputed title to real property in
which the United States claims an interest, other
than a security interest or water rights.” 28 U.S.C.
§ 2409a(a). The QTA is the exclusive means by which
a litigant can challenge title of the United States to
real property. Block v. North Dakota, 461 U.S. 273.
286 (1983). In addition, the text of the QTA suggests
that a plaintiff who brings suit under the statute
must have an interest in the disputed property: “(The
complaint] shall set forth with particularity the
nature of the right, title or interest which the plaintiff
claims in real property, the circumstances under
which it was acquired, and the right, title, or interest
claimed by the United States.” 28 U.S.C. § 2409a(d);
App. 62
see also Long v. Area Manager, 236 F.3d 910, 915 (8th
Cir. 2001) (holding that one can not assert a QTA
claim who “does not claim a property interest to
which title may be quieted”). Having no property
interest in the South Canyon Road, TWS can not
meet the injury-in-fact requirement and therefore
lacks constitutional standing. See Long, 236 F.3d at
915.
Similarly, the zone of interests that the QTA was
designed to protect can not encompass TWS because
a claimant must have an interest in the land in
question in order to benefit from the statute. See id.
Since the QTA only addresses the grievances of those
alleging property rights contested by the United
States, it can not be interpreted to safeguard TWS’s
interests. As a result, in the absence of any property
interest in the South Canyon Road, TWS lacks stand-
ing to defend against the counterclaim brought by
Elko County.
E. Jurisdiction over Intervenors’ Cross-
Claims
This court has jurisdiction over TWS’s claims
because they are transactionally related to the origi-
nal suit brought by the United States. Generally,
where intervention is “of right” under Fed. R. Civ. P.
24(a), an intervenor’s claim is deemed supplemental]
to the main action. 28 U.S.C. § 1367(a). Thus, no
independent basis for federal jurisdiction need be
established as long as the intervenor’s claims are
App. 63
transactionally related to the plaintiff’s claims. /d.
Moreover, an intervenor of right may assert cross-
claims without an independent jurisdictional basis.
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 617 n.14
(1966); Maseda v. Honda Motor Co., Ltd., 861 F.2d
1248, 1253 n.8 (1lth Cir. 1988). Here, TWS’s claims
relate to those originally brought by the United
States in that they assert that the government owns
the Road and therefore could not enter the settlement
agreement without complying with certain federal
statutes and regulations. Indeed, had the United
States not entered the settlement, no basis for TWS’s
cross-claims would even exist. Accordingly, because
TWS’s claims are transactionally related to the
underlying suit initiated by the United States, this
court has subject matter jurisdiction over them.°
° As a result, this court need not assess for jurisdictional
purposes — as the parties have argued — whether (1) the settle-
ment agreement constituted a disclaimer of the United States’
interests and therefore deprived this court of jurisdiction, see
Lesnoi, Inc. v. United States (Lesnoi Ill), 313 F.3d 1181, 1184
(9th Cir. 2002); (2) intervenors’ claims of wrongdoing on the part
of the United States in entering the settlement agreement
sufficiently placed a cloud on Elke County’s claims to title in the
South Canyon Road to support this court’s initial jurisdiction
under the Quiet Title Act, see Lesnoi, Inc. v. United States
(Lesnoi I), 170 F.3d 1188, 1192 (9th Cir. 1999); or (3) the APA
could serve as an independent basis of jurisdiction for the
intervenors’ cross-claims, see Donnelly v. United States, 850 F.2d
1313. 1317-18 (9th Cir. 1988); Lee v. United States, 809 F.2d
1406, 1409 n.2 (9th Cir. 1987).
App. 64
F. Availability of Judicial Review under
the APA
However, because a settlement agreement en-
tered into by the Attorney General is not an “agency
action” under the APA, this court has no jurisdiction
to review the intervenors’ cross-claims under that
statute. The United States asserts that no judicial
review under the APA is available because the De-
partment of Justice has the exclusive power to con-
duct litigation in which it represents an agency
pursuant to 28 U.S.C. §§ 516, 519. As discussed
further in Section IJ.I below, this provision does not
give the Attorney General carte blanche to settle
disputes in a manner inconsistent with federal stat-
utes or regulations. See Executive Business Media,
Inc. v. U.S. Dept. of Defense, 3 F.3d 759, 761-62 (4th
Cir. 1993).
Nevertheless, because the settlement agreement
entered into by the Department of Justice was not an
“agency action,” judicial review under the APA is not
available. The APA provides that “[a]lgency action
made reviewable by statute and final agency action
for which there is no adequate remedy in a court are
subject to judicial review.” 5 U.S.C. § 704. The statute
defines agency action to include “the whole or part of
an agency rule, order, license, sanction, relief, or the
equivalent or denial thereof, or failure to act.” 5
U.S.C. §551(13). In the instant action, once the
government began litigating ownership of the South
Canyon Road, the dispute at issue was turned over
from the Forest Service to the Justice Department.
App. 65
See 28 U.S.C. §§ 516, 519; See United States v. Am.
Prod. Indus., Inc., 58 F.3d 404, 407 (9th Cir. 1995). As
a result, it was the Department of Justice and not the
Forest Service which entered into the settlement
agreement, so the Forest Service never had the
opportunity to embark an notice and comment deci-
sion-making that might be reviewable under the APA.
See Sharman Co. v. United States, 2 F.3d 1564, 1571
(Fed. Cir.1993) (explaining that “once a claim is in
litigation, the Department of Justice gains exclusive
authority to act in the pending litigation”) Since the
litigation decisions of the Attorney General are not
agency actions subject to the procedural mandates of
the APA, this court has no power of review under that
statute. See 5 U.S.C. § 551(13); 28 U.S.C. §§ 516-519.
Accordingly; the cross-claims of the intervenors must
be dismissed because they fail to state a cause of
action under the APA.
G. Elko County’s Motion to Dismiss
Having dismissed intervenors’ cross-claims as
described above, Elko County’s motion to dismiss
them (#146) is denied as moot.
H. Intervenors’ Motion to Vacate Settle-
ment and for Scheduling Order
Having dismissed their underlying claims, this
court denies intervenors’ motion to vacate the settle-
ment and for a scheduling order (#142) as moot.
App. 66
I. Settlement Agreement
Because the government circumvented certain
procedural mandates imposed by Congress upon
entering the settiement agreement, this court must
stay the effectiveness of the agreement pending the
government's compliance. The Attorney General’s
broad discretion and plenary authority to control
litigation does not authorize him to settle disputes in
a manner inconsistent with statutes or regulations
which have the force of law and which implement
congressional directives. Executive Business Media,
Inc. v. U.S. Dept. of Defense, 3 F.3d 759, 761-62 (4th
Cir. 1993). As one appellate court aptly expressed,
“We think it alien to our concept of law to allow the
chief legal officer of the country to violate its laws
under the cover of settling litigation. The Attorney
General’s authority to settle litigation for its govern-
ment clients stops at the walls of illegality.” Id. at
762. A court can vacate a settlement agreement
entered into by the United States if the extent of
government misconduct constitutes a_ structural
defect that voids the judgment as fundamentally
unfair. See Dufresne v. Comm’r, Internal Revenue
Serv., 26 F.3d 105, 107 (9th Cir. 1994).
In addition, the analogy between a settlement
agreement and a consent decree renders case law on
the latter applicable to the former. A consent decree is
“essentially a settlement agreement subject to con-
tinued judicial policing.” United States v. Oregon, 913
F.2d 576, 580 (9th Cir. 1990), quoting Williams uv.
Vukovich, 720 F.2d 909, 920 (6th Cir.1983). Like a
App. 67
settlement agreement, a consent decree “is the prod-
uct of negotiation and compromise.” Id. The Ninth
Circuit has construed settlement agreements as
consent decrees, reviewing a district court’s decision
to accept a settlement for abuse of discretion. See id.
Therefore, before approving a settlement, a district
court “must be satisfied that it is at least fundamen-
tally fair, adequate and reasonable” and conforms to
applicable laws. Id. at 580-81: see Sierra Club, Inc. v.
Electronic Controls Design, Inc., 909 F.2d 1350, 1355
(9th Cir. 1990). If the district court later learns that
this standard was not met, it may set aside the
agreement pending compliance. See Fed. R. Civ. P.
60(b); Safe Flight Instrument Corp. v. United Control
Corp., 576 F.2d 1340, 1343 (9th Cir. 1978) (articulat-
ing that the exercise of authority to vacate or other-
wise modify the prospective effect of an equitable
decree lies within the discretion of the trial court,
guided by traditional principles of equity jurispru-
dence).
Here, the arguments made by the United States
in its filings to oppose the intervenors’ motion to
vacate reframed its original stance regarding the
effect of the settlement agreement, thereby providing
this court with new evidence that the settlement
effected the granting of a right-of-way to Elko County.
When this court entered a stipulation and order
accepting the settlement, the language of the agree-
ment, in which the United States agreed that it “will
not now or in the future contest that Elko County has
an R.S. 2477 right of way for” the South Canyon
App. 68
Road, was sufficiently ambiguous to preclude this
court from concluding that the settlement constituted
a disclaimer of ownership or the granting of a right-
of-way. In questioning the jurisdiction of this court to
hear the intervenors’ cross-claims, however, the
United States insisted that it had disclaimed any
property interest in the South Canyon Road via the
settlement agreement. (See United States’ Mot.
Dismiss Intervenors’ Cross-Claims (#154) at 16:14-
18.) The United States unequivocally proclaimed that
it “disclaim[{ed] an interest in real property subject
only to the court’s confirmation of that disclaimer.”
(Id. at 16:22-24.) This position sharply contrasts with
the Forest Service’s historical stance regarding its
ownership of the Road and runs counter to consider-
able evidence before the court, including the settle-
ment agreement itself. (See Intervenors’ P.&A.
(#156/157), Exs. 2-8; Stipulation and Order (#118),
Ex. 1 (reserving the right of the United States to
initiate condemnation proceedings).) If the United
States indeed disclaimed its property interest in the
Road, this disclaimer equates to the issuance of a
right-of-way, which triggers the requirement that the
government comply with FLPMA, NEPA, and Forest
Service regulations. See 43 U.S.C. § 1761(a)(6)-(b), 42
U.S.C. § 438382(2)(C), 36 C.E.R. §§ 251.53(1)(6)-251.55,
40 C.F.R. § 1501.4. Having acquired this new evi-
dence, this court no longer finds the settlement to be
fundamentally fair to the public interest because it
allows the government to circumvent the procedural
mandates laid out by Congress. See United States uv.
Oregon, 913 F.2d 576, 580 (9th Cir. 1990). As a result,
App. 69
pursuant to FED. R. Civ. P. 60(b), this court stays the
effectiveness of the settlement agreement pending
compliance by the Forest Service with these laws. See
Safe Flight Instrument Corp. v. United Control Corp.,
576 F.2d 1340, 1343 (9th Cir. 1978).
Ill. Conclusion
Accordingly, IT IS ORDERED that:
(1)
TWS’s motion to intervene (#106) is GRANTED
only with regard to its cross-claims against the
United States. TWS has no standing to defend
against Elko County’s counterclaim, so its par-
ticipation in this regard must cease;
Elko County’s Motion to Deny Intervention is
DENIED and its alternative Motion to Dismiss
for Failure to State a Claim (#146) is DENIED
as moot;
The United States’ Motion to Dismiss TWS’s
Cross-Claims (#154) is GRANTED;
TWS’s Motion to Vacate the Settlement and for a
Scheduling Order (#142) is DENIED as moot.
The effectiveness of the settlement agreement
(#118) is STAYED pending compliance by the
Forest Service with the requirements of FLPMA,
NEPA and any associated regulations triggered
by the granting of a right-of-way to Elko County.
App. 70
DATED: This 13th day of June, 2003.
/s/ David Hagen
UNITED STATES
DISTRICT JUDGE
App. 71
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Counter-Defendant-Appellee.
Vv.
JOHN C. CARPENTER; GRANT
GERBER; O. Q. JOHNSON, No. 01-16326
Defendants, D.C. No.
CV-99-00547-
and DWH
COUNTY OF ELKO, OPINION
Defendant-Counter-Claimant-Appellee,
THE WILDERNESS SOCIETY; GREAT
OLD BROADS FOR WILDERNESS,
Defendants-Intervenors-Appellants.
Appeal from the United States District Court
for the District of Nevada
David Warner Hagen, District Judge, Presiding
Argued and Submitted
June 12, 2002 — San Francisco, California
Filed August 12, 2002
Before: Mary M. Schroeder, Chief Judge,
Dorothy W. Nelson and
Stephen Reinhardt, Circuit Judges.
Per Curiam Opinion
App. 72
COUNSEL
Eric E. Huber, Earthjustice Legal Defense Fund, Inc.,
Denver, Colorado for the defendants-intervenors-
appellants. ls
ef
Blaine T. Welsh and Steven W. Myhre, U.S. Depart-
ment of Justice, Environment & Natural Resources
Division, Las Vegas, Nevada for the plaintiff-counter-
defendant-appellee.
Kristin A. McQueary, Office of Elko County District
Attorney, Elko, Nevada for the defendant-counter-
claimant-appellee.
OPINION
PER CURIAM:
Two environmental organizations, The Wilder-
ness Society and Great Old Broads for Wilderness,
appeal the denial of their motion to intervene as of
right in a suit between the United States, Elko
County, Nevada, and a private defendant over the
status of a road on U.S. Forest Service land. The
appellants sought to intervene to object to a proposed
settlement agreement, and they filed their interven-
tion petition soon after the proposed agreement was
made public on March 2, 2001. The district court
denied the motion on timeliness grounds because
the suit had been pending for more than eighteen
months. We have jurisdiction under 28 U.S.C. § 1291.
Southwest Ctr. for Biological Diversity v. Berg,
268 F.3d 810, 817 (9th Cir. 2001). We now reverse,
App. 73
because the interveners acted promptly after they
had notice that the government may not have ade-
quately represented their interests in negotiating the
settlement, and they were entitled to rely on the
presumption of adequate representation by the
government prior to that time. See, e.g., Forest Con-
servation Council v. U.S. Forest Suc., 66 F.3d 1489,
1499 (9th Cir. 1991).
In October 1999, the Forest Service sued repre-
sentatives of a citizens group, seeking declaratory
and injunctive relief to stop them from trespassing on
Forest Service land to restore a washed-out road. The
road in question, the South Canyon Road in Elko
County, Nevada, is adjacent to a river populated by
Bull Trout, a threatened species listed on the Endan-
gered Species list. In November 1999, the district
court joined Elko County as a party defendant, be-
cause it claimed rights to restore the road. The court
sent the parties to mediation conducted by a private
mediator, which the parties agreed would be confi-
dential.
The parties returned to court after months of
unsuccessful negotiations, and the district court
ordered further confidential settlement proceedings,
this time before a Magistrate Judge. On March 2,
2001, the parties notified the court that they had
reached a tentative agreement, and the court lifted
the confidentiality order covering the mediation
proceedings so that the agreement could be publicly
disseminated. The United States agreed that it would
not contest that Elko County had a right of way to the
App. 74
road, but did not waive its authority to manage
federal lands and natural resources in accordance
with federal environmental laws. The defendants
agreed that they would not do any work on the road
without receiving prior approval from the Forest
Service and that they would comply with federal
environmental laws.
The Wilderness Society and Great Old Broads for
Wilderness, citizens groups devoted to preserving
wilderness and wildlife in public lands, moved to
intervene as plaintiffs on March 30, 2001, asserting
that the proposed settlement agreement improperly
ceded a property interest in the road to the County of
Elko, thereby substantially diminishing the environ-
mental protections for the adjacent wilderness areas.
The district court approved the settlement, denied
the motion to intervene as untimely, and entered a
final order. The Wilderness Society and Great Old
Broads for Wilderness appealed.
[1] We review for abuse of discretion a district
court’s determination that an application for inter-
vention is untimely. Officers for Justice v. Civil Sve.
Comm’n of the City & County of San Francisco, 934
F.2d 1092, 1095 (9th Cir. 1991). Timeliness is meas-
ured by reference to “(1) the stage of the proceeding at
which an applicant seeks to intervene; (2) the preju-
dice to other parties; and (3) the reason for the length
of the delay.” County of Orange v. Air Calif., 799 F.2d
535, 537 (9th Cir. 1986).
App. 75
When the district court held that appellants’
motion to intervene was untimely, it noted that they
had filed the motion eighteen months after the com-
plaint was filed, after six months of court-ordered
mediation, and four days of settlement negotiations
in front of a magistrate. The court also concluded that
intervention would likely derail the parties’ settle-
ment. It found intervenors’ argument that they did
not know the Forest Service would not protect their
interests unconvincing since they knew the issues
and that the parties were attempting to reach a
settlement.
[2] We disagree. The intervenors acted as soon
as they had notice that the proposed settlement was
contrary to their interests. The mediation proceedings
had been conducted ‘under an order of confidentiality
and the settlement negotiations were not conducted
in open court. By entering into confidential settle-
ment discussions the government does not give notice
that it may not be adequately representing the inter-
ests of any group of citizens. We wish to encourage,
not discourage, the government’s participation in
settlement discussions. More importantly, settlement
negotiations would be severely impaired if every
party that the government represents could intervene
to participate as a matter of night simply because the
negotiations were conducted in a confidential manner.
For these reasons, we invoke the principle that until
parties have notice that the government may not be
representing their interests, parties are entitled to
rely on the presumption that the government is
App. 76
representing their interests. E.g., Forest Conservation
Council, 66 F.3d at 1499 (“a presumption of adequate
representation generally arises when the representa-
tive is a governmental body or officer charged by law
with representing the interests of the absentee”).
[3] The district court was understandably
concerned about the possibility that the settlement
might be delayed and the consequent prejudice. That
concern does not override the fact that prior to the
announcement of the proposed agreement, the appel-
lants were entitled to rely on the government to
adequately protect their interests. It was only when
the intervenors learned that the settlement consti-
tuted a substantial departure from the position that
the government had maintained throughout the
litigation that they sought to intervene.
We have, on occasion, been reluctant to require
the granting of motions to intervene where lengthy
settlement efforts might be disrupted and the appli-
cants for intervention had notice of the existence of
the suit. See Air Calif., 799 F.2d at 537; Alaniz uv.
Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir. 1978).
Those cases did not involve a claim of failure of a
governmental agency to represent its citizens. The
intervenors in the Alaniz case were all private class
members who had received individual notices regard-
ing the settlement process. Jd. at 659 n.3. The Air
California case involved a refusal to allow a city to
intervene in a suit that another city, a county, and
citizens’ groups had settled; there is no presumption
App. 77
that one governmental entity represents another. Air
Calif., 799 F.2d at 537.
[4] In this case, the district court erred in
denying appellants’ motion to intervene. We reverse
and remand with instructions to grant the motion,
and for further proceedings consistent with this
opinion.
REVERSED and REMANDED.
App. 78
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES
OF AMERICA,
Plaintiff-counter-
defendant-Appellee.
Vv.
JOHN C. CARPENTER,
Defendants,
GRANT GERBER;
Q. JOHNSON, O.,
Defendants,
and
COUNTY OF ELKO,
Defendant-Appellee,
THE WILDERNESS
SOCIETY; GREAT
OLD BROADS FOR
WILDERNESS,
Defendants-Intervenors-
Appellants.
No. 06-15596
D.C. No.
CV-99-00547-RLH/RAM
District of Nevada,
Reno
MANDATE
(Filed Sep. 16, 2008)
The judgment of this Court, entered 5/20/08,
takes effect this date.
This constitutes the formal mandate of this Court
issued pursuant to Rule 41(a) of the Federal Rules of
Appellate Procedure.
App. 79
FOR THE COURT:
Molly C. Dwyer
Clerk of Court
/s/ Lee-Ann Collins
By: Lee-Ann Collins
Deputy Clerk
App. 80
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES
OF AMERICA,
Plaintiff-counter-
defendant-Appellee.
Vv.
JOHN C. CARPENTER,
Defendant,
GRANT GERBER;
Q. JOHNSON, O.,
Defendants,
and
COUNTY OF ELKO,
Defendant-Appellee,
THE WILDERNESS
SOCIETY; GREAT
OLD BROADS FOR
WILDERNESS,
Defendants-Intervenors-
Appellants.
No. 06-15596
D.C. No.
CV-99-00547-RLH/RAM
District of Nevada,
Reno
ORDER
(Filed Aug. 1, 2008)
Before: SCHROEDER, D.W. NELSON, and REIN-
HARDT, Circuit Judges.
The panel has voted to deny the petition for
panel rehearing and to deny the petition for rehear-
ing en banc.
App. 81
The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote
on whether to rehear the matter en banc. Fed. R.
App. P. 35.
The petition for panel rehearing and the petition
for rehearing en banc are denied.
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