# Petition for Writ of Certiorari — Elko County, Nevada v. Wilderness Society (No. 08-571) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0781%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text 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 princi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0781%3A1. Public record. Not legal advice.