Amicus Curiae Brief — Elko County, Nevada v. Wilderness Society (No. 08-571)

Supreme Court, U.S.

MOTION FILED ID

DEC - 1.2008 No. 08s

William K. Suter,

Clerk

Fu The

Supreme Court of the United States

3

ELKO COUNTY, NEVADA,

Petitioner,

v.

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 United States Court Of Appeals

For The Ninth Circuit

se —

MOTION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF AND AMICUS CURIAE BRIEF OF

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

«

STEVEN J. LECHNER

Counsel of Record

WILLIAM PERRY PENDLEY

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Amicus Curiae

OCKLE LAW BRIEF PRINTINE

OR CALL COLLECT (40

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF

Pursuant te Supreme Court Rule 37.2(b), Moun-

tain States Legal Foundation (““MSLF”) respectfully

requests leave of this Court to file the accompanying

amicus curiae brief, in support of Petitioner. Peti-

tioner, Respondent, United States of America, and

Respondent, John C. Carpenter, granted consent to

MSLF to file an amicus curiae brief. Respondents,

The Wilderness Society and Great Old Broads for

Wilderness, however, withheld consent.

As demonstrated in the Identity and Interest

section of the accompanying amicus curiae brief,

MSLF may be adversely affected by the Ninth Cir-

cuit’s decision in the instant case and believes that its

amicus curiae brief will bring relevant matters to this

Court’s attention. As a result, MSLF respectfully

requests that its Motion for Leave to File Amicus

Curiae Brief be granted.

DATED this 1st day of December 2008.

Respectfully submitted by:

STEVEN J. LECHNER

Counsel of Record

William Perry Pendley

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Amicus Curiae

QUESTION PRESENTED

The Quiet Title Act (“QTA”), 28 U.S.C. § 2409(a),

operates as a limited waiver of the United States’

sovereign immunity so that parties may resolve

disputes regarding title to interests in real property

against the United States. Block v. North Dakota, 461

U.S. 273, 280-87 (1983). The question presented is:

Do environmental groups, which assert no own-

ership interest in the disputed real property, have “an

interest relating to the property ... that is the sub-

ject of the action” so as to entitle them to intervene as

of right in a QTA case?

ll

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE AMICUS CU-

RIAE BRIEF

QUESTION PRESENTED

TABLE OF AUTHORITIES

IDENTITY AND INTEREST OF AMICUS CU-

I. THIS COURT SHOULD GRANT REVIEW

TO SETTLE AN IMPORTANT FEDERAL

QUESTION REGARDING WHO IS EN-

TITLED TO INTERVENE AS OF RIGHT

IN A QTA CASE

A. An Applicant For Intervention Of

Right Must Demonstrate A “Legally

Protected Interest”

B. An Applicant’s “Legally Protected In-

terest” Must “Reiate To” The Claim For

Relief At Issue

Only Those Who Assert An Ownership

Interest In The Disputed Real Prop-

erty Have A “Legally Protected Inter-

est” “Relating To The Property” In A

i

TABLE OF CONTENTS ~ Continued

Page

Ii. THIS COURT SHOULD GRANT REVIEW

TO PREVENT ENVIRONMENTAL GROUPS

FROM TURNING FEDERAL COURTS

INTO PUBLIC FORUMS FOR DEBAT-

ING FEDERAL LAND MANAGEMENT

POLICIES

CONCLUSION

TABLE OF AUTHORITIES

CASES

Alaska v. United States, 534 U.S. 1103 (2002)

Amoco Prod. Co. v. Southern Ute Indian Tribe,

526 U.S. 865 (1999)

Arizona v. California, 530 U.S. 392 (2000)

Atlantis Development Corp. v. United States,

379 F.2d 818 (5th Cir. 1967)

Block v. North Dakota, 461 U.S. 273 (1983)

Cadorette v. United States, 988 F.2d 215 (lst

Cir. 1993)

Carlson v. United States, 556 F.2d 489 (Ct. Cl.

Cascade Natural Gas Corp. v. El Paso Natural

Gas Company, 386 U.S. 129 (1971)

Diamond v. Charles, 476 U.S. 54 (1986)

Donaldson v. United States, 400 U.S. 517

(1971) 8, 9, 15, 17

Fitzgerald Living Trust v. United States, 460

F.3d 1259 (9th Cir. 2006)

Flast v. Cohen, 392 U.S. 83 (1968)

Gange Lumber Co. v. Rowley, 326 U.S. 295

(1945)

Hage v. United States, 35 Fed. Cl. 737 (Fed. Cl.

Vv

TABLE OF AUTHORITIES — Continued

Horn v. Volcano Water Co., 13 Cal. 62 (1859)

Kinscherff v. United States, 586 F.2d 159 (10th

Cir. 1978)

Leisnoi, Inc. v. United States, 313 F.3d 1181

(9th Cir. 2002)

Lujan v. National Wildlife Federation, 497 U.S.

871 (1990)

McFarland v. Kempthorne, roe...

—,_

Cir. 2008), 2008 WL 4426628

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

ik A Ue uipiss van ensdbvneyevecees 3

Millard County, Utah v. United States, No. 93-

EEE

Nevada v. United States, 463 U.S. 110 (1983)........... 12

New York v. United States, 397 U.S. 248 (1970)

Pavelic & LeFlore v. Marvel Entertainment

Group, 493 U.S. 120 (1989)

Reich v. ABC/York-Estes Corp., 64 F.3d 316 (7th

Cir. 1995)

vl

TABLE OF AUTHORITIES — Continued

Sam Fox Publishing Co. v. United States, 366

U.S. 683 (1961)

San Juan County, Utah v. United States, 503

F.3d 1163 (10th Cir. 2007) | 16, 17, 18

Sierra Club v. EPA, 995 F.2d 1478 (9th Cir.

Smith v. Gale, 144 U.S. 509 (1892)

Southern Utah Wilderness Alliance v. Bureau of

Land Management, 425 F.3d 735 (10th Cir.

2005)........ ihisnuib Reba tose asia leaunabbeamsenaapueaseia cine etbakiadeness 4

St. Louis Smelting & Refining Co. v. Kemp, 104

U.S. 636 (1881)

United States v. Automobile Manufacturers

Ass’n, 307 F.Supp. 617 (C.D. Cal. 1969)

United States v. Boundary County, Idaho, No.

98-0253-N-EJL (D. Idaho)

United States v. El Paso Natural Gas Co., 376

U.S. 651 (1964)

United States v. Hooker Chemicals & Plastics

Corp., 749 F.2d 968 (2nd Cir. 1984)

United States v. Jenks, 22 F.3d 1513 (10th Cir.

United States v. Menasche, 348 U.S. 528 (1955)

United States v. Richardson, 418 U.S. 166

(1974)

Vil

TABLE OF AUTHORITIES — Continued

Page

Utah v. United States, 394 U.S. 89 (1969) 12, 13

Valley Forge Christian College v. Americans

United for Separation of Church and State,

Inc., 454 U.S. 472 (1982)

Warth v. Seldin, 422 U.S 499 (1975)

Watt v. Western Nuclear, Inc., 462 U.S. 36

(1983)

STATUTES

28 U.S.C. § 1346(f)

28 U.S.C. § 516

Federal Land Policy and Management Act of

1976, Section 701 (90 Stat. 2786)

Federal Land Policy and Management Act of

1976, Section 702 (90 Stat. 2787)

Federal Land Policy and Management Act of

1976, Section 706(a) (90 Stat. 2793)

General Mining Law of 1872, 30 U.S.C. § 21 et

DUE. .<:vinnyjnsnciotniinmpitinmainbieaamamaama ala 2

General Railroad Right of Way Act of 1875 (18

Stat. 482)

General Right of Way Act of 1891 (26 Stat.

Homestead Act of 1862 (12 Stat. 392)

Mining Act of 1866, Section 8

(14 Stat. 251)

Vill

TABLE OF AUTHORITIES — Continued

Mining Act of 1866, Section 9 (14 Stat. 251)

Quiet Title Act, 28 U.S.C. § 2409(a) passim

Stock-Raising Homestead Act of 1916 (39 Stat.

a lec 2.3

RULES

Federal Rule of Civil Procedure 1

Federal Rule of Civil Procedure 19

Federal Rule of Civil Procedure 19(a)(1)(B)(i).....14, 15

Federal Rule of Civil Procedure 24....................005 7, 18

Federal Rule of Civil Procedure 24(a)

Federal Rule of Civil Procedure 24(a)(2)

Supreme Court Rule 37

OTHER AUTHORITIES

Benjamin Kaplan, Continuing Work of the Civil

Committee: 1966 Amendments of the Federal

Rules of Civil Procedure (I), 81 Harv. L. Rev.

356 (1967)

Federal Rule of Civil Procedure, 24, 1966

Advisory Committee Note. ............cccccsccssssssscessees 7, 14

Merriam-Webster’s Collegiate Dictionary (11th

ed. 2003)

Note, Federal Regulation of R.S. 2477 Rights-

of-Way, 63 N.Y.U. Ann. Surv. Am. L. 547

(2008)

1X

TABLE OF AUTHORITIES — Continued

Page

David L. Shapiro, Some Thoughts on Interven-

tion Before Courts, Agencies, and Arbitrators,

BD Fee Ei, BE Tae 6 Ree cdencincvadecsevecscnscecisnsevseseees 8

U.S. Department of the Interior, Report to

Congress on R.S. 2477: The History and

Management of R.S. 2477 Claims on Federal

and Other Lands 29 (1993)

7C Charles Alan Wright, Arthur R. Miller &

Mary Kay Kane, Federal Practice and Proce-

dure: Civil 3d § 1908.1 (2008)

AMICUS CURIAE BRIEF OF MOUNTAIN

STATES LEGAL FOUNDATION

Mountain States Legal Foundation (“MSLF”)

respectfully submits this amicus curiae brief, on

behalf of itself and its members, in support of Peti-

tioner.

IDENTITY AND INTEREST

OF AMICUS CURIAE'’

MSLF is a non-profit, public interest Jaw firm

organized under the laws of the State of Colorado.

MSLF is dedicated to bringing before the courts those

issues vital to the defense and preservation of private

property rights, individual liberties, limited and

ethical government, and the free enterprise system.

MSLF has over 5,000 members throughout the

United States. The majority of these members own

property, and/or do business in the western United

States. A significant portion of these members are

direct descendants of, or successors-in-interest to, the

' Pursuant to Supreme Court Rule 37, letters advising of

MSLF'’s intent to file this amicus curiae brief were received by

counsel of record for all parties at least 10 days prior to the due

date hereof. Pursuant to Supreme Court Rule 37.6, MSLF

affirms that no counsel for a party authored the accompanying

amicus curiae brief in whole or in part and that no party,

person, or entity, other than MSLF, its members, and its

counsel, made a monetary contribution for the preparation or

submission of this brief.

2

original settlers, miners, railroads, farmers, and/or

irrigators who acquired real property interests under

the numerous land grant and/or right-of-way statutes

that were passed in the late 1800s and early 1900s.

See, e.g., the Homestead Act of 1862, 12 Stat. 392-93

(43 U.S.C. § 161 et seq.) (repealed 1976); Section 9 of

the Mining Act of 1866, 14 Stat. 251, 253 (43 U.S.C.

§ 661) (repealed 1976) (granting the right-of-way for

ditches and canals); the General Mining Law of 1872,

30 U.S.C. § 21 et seq.; the General Railroad Right of

Way Act of 1875, 18 Stat. 482-83 (43 U.S.C. §§ 934-

939) (repealed 1976); the General Right of Way Act of

1891, 26 Stat. 1101-02. (43 U.S.C. §§ 946-949) (re-

pealed 1976); the Stock-Raising Homestead Act of

1916, 39 Stat. 862 (43 U.S.C. §§ 291-302) (repealed

1976).”

Because of these land grant and right-of-way

statutes and the federal government’s change in

philosophy from land disposal to land retention, see

Lujan v. National Wildlife Federation, 497 U.S. 871,

875-77 (1990), private and federal real property

interests have become intermingled throughout the

western United States. See, e.g., Leo Sheep Co. v.

United States, 440 U.S. 668 (1979) (describing check-

erboard land pattern created by the Union Pacific Act

* Although the Sections 702 and 706(a) of Federal Land

Policy and Management Act of 1976 (“FLPMA”), 90 Stat. 2787-

89, 2793-94, repealed most of these land grant and right-of-way

statutes, Section 701 of FLPMA expressly preserved all “valid

existing rights” and rights-of-way. 90 Stat. 2786.

3

of 1862); Watt v. Western Nuclear, Inc., 462 U.S. 36

(1983) (describing private surface and federal mineral

estates created by the Stock-Raising Homestead Act);

Amoco Prod. Co. v. Southern Ute Indian Tribe, 526

U.S. 865 (1999) (holding that Congress did not re-

serve coalbed methane when it reserved the coal in

lands patented under Coal Lands Acts of 1909 and

1910). Because of these intermingled real property

interests, MSLF has represented clients in Quiet

Title Act (““QTA”), 28 U.S.C. § 2409a, cases against

the United States. For example, MSLF has repre-

sented inholders seeking to quiet title to an easement

across federal lands in order to access their lands

patented under the various homestead acts. United

States v. Jenks, 22 F.3d 1513 (10th Cir. 1994), on

appeal after remand, 129 F.3d 1348 (10th Cir. 1997);

Fitzgerald Living Trust v. United States, 460 F.3d

1259 (9th Cir. 2006); McFarland v. Norton, 425 F.3d

724 (9th Cir. 2005), on appeal after remand,

McFarland v. Kempthorne, __ F.3d __ (9th Cir.

2008), 2008 WL 4426628.

MSLF has also represented clients in QTA cases

seeking to quiet title to rights-of-way under Section 8

of the Mining Act of 1866, 14 Stat. 251, 253 (43 U.S.C.

§ 932) (repealed 1976). Millard County, Utah v.

United States, No. 93-C-591J (D. Utah); United States

uv. Boundary County, Idaho, No. 98-0253-N-EJL (D.

Idaho). This statute, which is at issue in the instant

case and is commonly referred to as “R.S. 2477,”

provided: “(t]he right of way for the construction

of highways over public lands, not reserved for

public uses, is hereby granted.” 14 Stat. at 253. This

statutory grant played an important role in the

development of the western United States. Southern

Utah Wilderness Alliance v. Bureau of Land Man-

agement, 425 F.3d 735, 740 (10th Cir. 2005) (noting

that “most of the transportation routes of the West

were established under [R.S. 2477]”). Moreover,

because the grant in R.S. 2477 could be accepted

without any action on part of the federal government,

there has been significant controversy over the last

thirty years regarding the existence of such rights-of-

ways. See Note, Federal Regulation of R.S. 2477 |

Rights-of-Way, 63 N.Y.U. Ann. Surv. Am. L. 547, 556-

60 (2008). As a result, more QTA litigation involving

R.S. 2477 rights-of-way will occur in the years to

come. See U.S. Department of the Interior, Report to

Congress on R.S. 2477: The History and Management

of R.S. 2477 Claims on Federal and Other Lands 29

(1993) (noting that there were approximately 5,600

R.S. 2477 claims pending with the Bureau of Land

Management).

In the instant case, the Ninth Circuit ruled that

environmental groups, which asserted no ownership

interest in the disputed real property, were entitled to

intervene as of right in a QTA case. If the Ninth

Circuit’s decision is allowed to stand, it will seriously

impact MSLF, its members, and future clients, as

well as the United States. In fact, nothing could be

better calculated to frustrate QTA litigation than the

rule adopted by Ninth Circuit. Indeed, allowing

environmental groups, which assert no ownership

interest, into QTA litigation will drastically increase

litigation expenses and delay the resolution of what is

a private dispute. In short, the Ninth Circuit’s deci-

sion will turn QTA cases into public forums for debat-

ing federal land management policies.

+

ARGUMENT

THIS COURT SHOULD GRANT REVIEW

TO SETTLE AN IMPORTANT FEDERAL

QUESTION REGARDING WHO IS ENTI-

TLED TO INTERVENE AS OF RIGHT INA

QTA CASE.

A. An Applicant For Intervention Of

Right Must Demonstrate A “Legally

Protected Interest.”

Rule 24(a) of the Federal Rules of Civil Procedure

provides, in relevant part:

Intervention of Right. On a timely motion,

the court must permit anyone to intervene

who:

* *: eo

(2) claims an interest relating to the

property or transaction that is the sub-

ject of the action, and is so situated

that disposing of the action may as a

practical matter impair or impede the

movant’s ability to protect its interest,

unless existing parties adequately rep-

resent that interest.

6

Thus, under Rule 24(a)(2), an applicant is entitled to

intervene as of right when four requirements are

satisfied: (1) a motion to intervene is tiinely filed; (2)

the applicant claims an “interest relating to the

property or transaction that is the subject of the

action;” (3) the applicant “is so situated that disposing

of the action may as a practical matter impair or

impede the [applicant’s] ability to protect its interest;”

and (4) that “interest” is not “adequately repre-

sent[ed]” by existing parties. Since the 1966 Amend-

ments to Federal Rules of Civil Procedure, Rule

24(a)(2) has remained substantially unchanged. 7C

Charles Alan Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Procedure: Civil 3d

§ 1908.1 (2008) (“Wright & Miller”). During this time,

this Court has, on two occasions, specifically ad-

dressed the second requirement for intervention as of

right.

In the first case, Cascade Natural Gas Corp. v. El

Paso Natural Gas Company, 386 U.S. 129, 131-36

(1971), this Court allowed three applicants to inter-

vene in a government antitrust case. The case was

complicated because the motions to intervene were

not filed until after it became apparent that this

Court’s earlier mandate was not being followed. Jd. at

935-36; see United States v. El Paso Natural Gas Co.,

376 U.S. 651, 662 (1964) (ordering El Paso to divest of

Pacific Northwest Pipeline Corporation). To further

complicate matters, by the time the case had reached

7

this Court, Rule 24 had been amended in 1966.°

Cascade, 386 U.S. at 935. Over a strong dissent, the

majority of this Court granted intervention to two of

the applicants under the old Rule 24 and granted

intervention to the third under the new Rule 24.* Id.

at 935-37. Because of these complicating factors, the

lower courts, commentators, and legal scholars have

not regarded the majority’s decision in Cascade as

significant precedent regarding the requisite “inter-

est” for intervention as of right under Rule 24(a)(2).

United States v. Automobile Manufacturers Ass’n, 307

F.Supp. 617, 619 n.3 (C.D. Cal. 1969), appeal dis-

missed, New York v. United States, 397 U.S. 248

(1970) (suggesting that the ruling in Cascade is “sui

generis. and must be limited to the facts of that case”);

Wright & Miller, supra, § 1908.1 (“(T]he Court's

* Former Rule 24 had been interpreted as requiring appli-

cants to show that they would be “bound” in a res judicata sense

by the resulting judgment in the pending case to be entitled to

intervene as of right. Sam Fox Publishing Co. v. United States,

366 U.S. 683, 689-93 (1961). The 1966 amendments to Rule 24

were intended to, inter alia, alleviate the harshness of that

ruling. Fed. R. Civ. P. 24, 1966 Advisory Committee Note.

‘In dissent, Justice Stewart, joined by Justice Harlan

criticized the majority opinion because it “repudiate[d] a large

and long-established body of decisions specifically, and correctly,

denying intervention in government antitrust litigation.” Jd. at

147 (Stewart, J., dissenting). Instead, Justice Stewart would

have ruled that none of the applicants were entitled to intervene

under either the old or new Rule 24 because they lacked a

“sufficiently direct and immediate” interest to intervene in

federal antitrust litigation. Jd. at 153-54 (Stewart, J., dissent-

ing).

8

desire to see that its mandate be obeyed provided

strong pressure for a liberal reading of the interven-

tion requirements.”); David L. Shapiro, Some

Thoughts on Intervention Before Courts, Agencies,

and Arbitrators, 81 Harv. L. Rev. 721, 729-30, 741-42

(1968) (same).

The second case is Donaldson v. United States,

400 U.S. 517 (1971). In that case, the IRS, which was

investigating a taxpayer’s federal tax returns, served

summonses on a former employer of the taxpayer and

an accountant for the employer, demanding that they

produce certain records regarding the taxpayer. Jd. at

518-19. The taxpayer first obtained a federal court

injunction restraining the employer and the account-

ant from complying with the summonses without a

court order. Jd. at 519-20. The United States then

filed petitions with the same court to enforce compli-

ance with the summonses. Id. at 520. The taxpayer

then moved to intervene in those enforcement pro-

ceedings. Jd. at 521. After the district court’s denial of

the taxpayer’s motion was upheld on appeal, id. at

521-22, this Court granted certiorari because of the

confusion regarding the right to intervene in such

enforcement proceedings. Id. at 522.

After determining that the Federal Rules of Civil

Procedure were applicable to such enforcement

proceedings, td. at 528-29, this Court rejected that

taxpayer’s argument that he was entitled to inter-

vene as of right. Jd. at 530-31. Specifically, this Court

ruled that the records were the employer’s routine

business records, in which the taxpayer had “no

9

proprietary interest of any kind” or any claim of

work-product or privilege. Jd. at 530. Instead, because

the employer and the accountant were willing to

produce the records, this Court ruled that the tax-

payer’s asserted interest was nothing more than a

“desire” to overcome that willingness. Jd. at 531. This

Court then ruled that this “desire:”

[C]annot be the kind [of interest] contem-

plated by Rule 24(a)(2) when it speaks in

general terms of “an interest relating to the

property or transaction which is the subject

of the action.” What is obviously meant there

is a significantly protectable interest.

Id. at 531 (emphasis added).

It was probably no accident that the term “sig-

nificantly protectable interest” in Donaldson is very

similar to the “legally protectable interest” term that

this Court has employed in its standing analysis. See

Gange Lumber Co. v. Rowley, 326 U.S. 295, 307-08

(1945) (“In our view appellant has not made the

showing of substantial harm, actual or impending, to

any legally protected interest which is necessary to

call in question the statute’s validity.”) (emphasis

added). It follows then that “significantly protectable

interest” means more than just a general or abstract

interest in the ongoing litigation. See Diamond v.

Charles, 476 U.S. 54, 75 (1986) (O’Connor, J., concur-

ring) (abstract or speculative interests do not satisfy

Donaldson’s “significantly protectable interest” re-

quirement). Instead, “significantly protectable inter-

est” must mean the “legally protected interest,” which

10

the “actual and imminent invasion of” will satisfy the

“injury” requirement for Article III standing. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992) (internal quotations and citations omitted).

Such a conclusion is in accordance with this Court’s

admonition that federal courts are not forums for

airing generalized grievances. Warth v. Seldin, 422

U.S. 490, 499-500 (1975) (noting that this Court has

refrained from adjudicating “abstract questions of

wide public significance” that amount to generalized

grievances shared by a large number of citizens).

B. An Applicant’s “Legally Protected In-

terest” Must “Relate To” The Claim

For Relief At Issue.

It is well established that the Federal Rules of

Civil Procedure are construed in accordance with

their “plain meaning.” Pavelic & LeFlore v. Marvel

Entertainment Group, 493 U.S. 120, 123 (1989). Rule

24(a)(2) requires that an applicant for intervention of

right “claim[] an interest relating to the property or

transaction that is the subject of the action[.]” Fed. R.

Civ. P. 24(a)(2) (emphasis added). The plain meaning

of “relate” is “to show or establish logical or causal

connection between.” Merriam-Webster’s Collegiate

Dictionary 1051 (11th ed. 2003). Thus, based upon the

plain language of Rule 24(a)(2), there must be a

“logical or causal connection between” the applicant’s

“legally protected interest” and the claim for relief

at issue. Reich v. ABC/York-Estes Corp., 64 F.3d 316,

322 (7th Cir. 1995) (“In ascertaining a pvutential

11

intervenor’s interest in a case, our cases focus on the

issues to be resolved by the litigation and whether

the potential intervenor has an interest in those

issues.”); Sierra Club v. EPA, 995 F.2d 1478, 1484

(9th Cir. 1993) (there must be “a relationship between

the legally protected interest and the claims at is-

sue”). As a result, the particular claim for relief at

issue must be considered when reviewing an applica-

tion for intervention of right. United States v. Hooker

Chemicals & Plastics Corp., 749 F.2d 968, 983 (2nd

Cir. 1984) (“The requirements for intervention embod-

ied in Rule 24(a)(2) must be read . . . in the context of

the particular statutory scheme that is the basis for

the litigation. .. .”).

C. Only Those Who Assert An Ownership

Interest In The Disputed Real Prop-

erty Have A “Legally Protected Inter-

est” “Relating To The Property” In A

QTA Case.

The sole purpose of a QTA case is “to adjudicate a

disputed title to real property in which the United

States claims an interest.” 28 U.S.C. § 2409a(a). In

fact, the QTA is the exclusive means by which to

challenge the United States’ title to real property.

North Dakota, 461 U.S. at 286. Thus, a person seek-

ing to quiet title to real property against the United

States must set forth, with particularity, the nature

of the claimed interest in the real property, the cir-

cumstances under which it was acquired, and the

right title and interest of the United States. 28 U.S.C.

12

§ 2409a(d). In short, a QTA case is “an in personam

proceeding ... the purpose of which is to determine

which named party has superior claim to a certain

piece of property.” Cadorette v. United States, 988

F.2d 215, 223 (1st Cir. 1993) (citing Nevada v. United

States, 463 U.S. 110, 143-44 (1983)) (second emphasis

added). Moreover, if the final judgment is adverse to

the United States, it may elect to keep all or part of

the prevailing party’s real property upon the payment

of “just compensation.” 28 U.S.C. § 2409a(b).

Because of the limited nature of a QTA case,

third parties who assert no ownership interest have

no right to intervene in such a case. Cf Alaska uv.

United States, 534 U.S. 1103 (2002) (approving Re-

port of Special Master denying intervention in an

original QTA case by individuals who lacked interest

in disputed real property); Arizona v. California, 530

U.S. 392, 419 n.6 (2000) (refusing to consider objec-

tions by an association that was denied intervention

because its members lacked any interest in the land

or water at issue); Utah v. United States, 394 U.S. 89,

92-93 (1969) (in an original action, this Court recog-

nized that a purported property owner would have

* Conversely, “{iJf the United States disclaims all interest in

the real property or interest therein adverse to the plaintiff at

any time prior to the actual commencement of the trial, which

disclaimer is confirmed by order of the court, the jurnsdiction

of the district court shall cease unless it has jurisdiction of

the civil action or suit on ground other than and independent of

the authority conferred by [28 U.S.C. § 1346(f)].” 28 U.S.C.

§ 2409a(e).

13

been entitled to intervene in a title dispute but for the

fact the original parties had resolved their differences

regarding his property); Smith v. Gale, 144 U.S. 509,

518 (1892) (to intervene in a private quiet title suit an

applicant must claim an interest in, or lien on, the

property at issue) (citing Horn v. Volcano Water Co.,

13 Cal. 62, 70 (1859) (Stephen J. Field, J.)). This

conclusion is in accordance with the well established

rule that only persons who claim an ownership inter-

est in the disputed real property may bring or defend

a QTA case. Long v. Area Manager, 236 F.3d 910, 915

(8th Cir. 2001) (No one can assert a QTA claim who

“does not claim a property interest to which title may

be quieted.”); Kinscherff v. United States, 586 F.2d

159, 160-61 (10th Cir. 1978) (members of the public

do not have the requisite “interest” in a purported

public road to bring a QTA case against the United

States).

This conclusion is further supported by the

principle that a third party may not conduct QTA

litigation on behalf of the United States. Indeed,

Congress has delegated that authority exclusively to

the U.S. Department of Justice under the direction of

the Attorney General. 28 U.S.C. §516; see Utah,

supra, 394 U.S. at 94-5 (Solicitor General has “broad

authority” to conduct litigation invelving ownership

of property on behalf of the United States before this

Court); Carlson v. United States, 556 F.2d 489, 493

(Ct. Cl. 1977) (a third party has “no authority to claim

land on behalf of the United States”); Leisnoi, Inc. v.

United States, 313 F.3d 1181, 1185 (9th Cir. 2002) (the

14

decision to disclaim all interest in the property at

issue in the QTA is “entirely the prerogative of the

United States”); cf. St. Louis Smelting & Refining Co.

v. Kemp, 104 U.S. 636, 640-41 (1881) (it “does not hie

in the mouth of a stranger to the title to complain of

the act of the government with respect to it”).

Finally, this conclusion is also supported by Rule

19 of the Federal Rules of Civil Procedure. This Rule

addresses the required joinder of an absent person

who “claims an interest relating to the subject of the

action and is so situated that disposing of the action

in the person’s absence may” “as a practical matter

impair or impede the person’s ability to protect the

interest[.]” Fed. R. Civ. P. 19(a)(1)(B)G). The similar-

ity of this language and that found in Rule 24(a)(2) is

no mistake. Indeed, one purpose of the 1966 amend-

ments to the Federal Rules of Civil Procedure was to

“tie more closely together the related situations” of

joinder and intervention. Atlantis Development Corp.

v. United States, 379 F.2d 818, 823-24 (5th Cir. 1967).

Thus, under the 1966 amendments, a person whose

“position is comparable to that of a person under Rule

[19]” is entitled to intervene as of right, “unless that

[person’s] interest is already adequately represented

in the action by existing parties.” Fed. R. Civ. P. 24,

1966 Advisory Committee Note; Atlantis Development

Corp., 379 F.2d at 825 (“the question of whether an

intervention as a matter of right exists often turns

on the unstated question of whether joinder of

the intervenor was called for under new Rule 19”);

Benjamin Kaplan, Continuing Work of the Civil

Committee: 1966 Amendments of the Federal Rules of

Civil Procedure (I), 81 Harv. L. Rev. 356, 405 (1967)

(“(TJhe interest spoken of in new rule [24] finds its

own limits in the historic continuity of the subject of

intervention and in the concepts on new rule 19, to

which intervention looks for analogy.”). It strains

credulity to think Rule 19(a)\(1)(B)(Gi) would ever be

used to require the joinder in a QTA case of a person

who did not assert an ownership interest in the real

property. It follows then, that such a person is not

entitled to intervene as of right in a QTA case.

Applying the foregoing principles and precedents

to the instant case compels the conclusion that the

Ninth Circuit erred when it ruled that the environ-

mental groups had the requisite “interest” to inter-

vene as of right. Petitioner’s Appendix (“Pet. App.”) 8.

It was undisputed that the environmental groups

lack a property interest in the R.S. 2477 or the land

burdened thereby. Pet. App. 7 (“Everyone agrees that

... the [environmental groups] ... have no property

interest.”). Instead, the environmental groups as-

serted merely an “interest in seeing that the wilder-

ness areas be preserved for use and enjoyment of

their members.” Pet. App. at 8. In other words, the

environmental groups asserted a general interest in

the management of the federal lands surrounding the

R.S. 2477. That this interest is not sufficient to

intervene in a QTA case is clear. Indeed, just as the

taxpayer in Donaldson could not intervene despite his

non-trivial interest in preventing the disclosure of his

former employer’s records, environmental groups,

16

which assert no ownership interest in the disputed

real property, are not entitled to intervene in QTA

cases because they lack the necessary interest.

II. THIS COURT SHOULD GRANT REVIEW

TO PREVENT ENVIRONMENTAL GROUPS

FROM TURNING FEDERAL COURTS

INTO PUBLIC FORUMS FOR DEBATING

FEDERAL LAND MANAGEMENT POLI-

CIES.

In ruling in favor of environmental groups, the

Ninth Circuit erroneously relied on the Tenth Cir-

cuit’s heavily fragmented decision in San Juan

County, Utah v. United States, 503 F.3d 11638 (10th

Cir. 2007) (en banc). Pet. App. 8. In that case, seven

of the thirteen judges sitting en banc ruled that

environmental groups had a sufficient interest to

intervene in a QTA case involving an R.S. 2477 be-

cause of their purported interest in the use of the

area for “conservation, aesthetic, scientific and rec-

reational purposes.” San Juan County, 503 F.3d at

* Three judges from the majority opinion ruled that the

environmental groups’ interest was adequately represented by

the United States. San Juan County, 503 F.3d at 1203-07. The

six concurring judges would have ruled that the environmental

groups lacked a legally protectable interest relating to property

at issue because the environmental groups’ concern about the

“use” of the surrounding land had no relationship to the issue in

the case, i.e., “ownership” of the right-of-way. Jd. at. 1208 (con-

curring opinion). Based upon these nine votes, the en banc court

affirmed the district court’s denial of intervention. Jd. at 1207.

17

1199-1203. In so doing, the majority opinion essen-

tially limited this Court’s ruling in Donaldson to the

facts in that case. Jd. at 1191-92. This allowed the

majority opinion to conclude that the environmental

> «

groups’ “concern” about the area surrounding the

right-of-way was a sufficient interest for intervention

of right. Jd. at 1199. If the taxpayer’s “desire” in

Donaldson to prevent the disclosure of his employ-

ment records, which could resuit in civil or criminal

penalties, was not a “significantly protectable inter-

est,” a fortiori, an abstract “concern” about the envi-

ronment is not “significantly protectable interests” in

a QTA case.

To make matters worse, the majority opinion

read out of Rule 24(a)(2) the requirement that the

asserted “interest” “relat[e] to the property . . . that is

the subject of the action{.]” Fed. R. Civ. P. 24(a)(2).

Instead, the majority opinion adopted a purportedly

“pragmatic” test that merely looks to the “practical

effect” the litigation may have on an applicant’s

interest.’ San Juan County, 503 F.3d at 1199-2000.

This “test,” however, violates this Court’s admonition

that courts are to “apply the text [of a Rule.}” Pavelic

& LeFlore, 493 U.S. at 126; cf. United States v. Me-

nasche, 348 U.S. 528, 538-39 (1955) (“The cardinal

principle of statutory construction is to save and not

" The concurring opinion criticized the majority’s “prag-

matic” test because the “practical effect” of having unnecessary

parties in QTA cases was increased litigation costs for the real

parties in interest. San Juan County, 503 F.3d at 1209.

18

destroy. [Thus, it] is our duty to give effect, if possible,

to every clause and word of a statute... .”) (internal

quotations and citations omitted).

More seriously, the majority opinion’s purport-

edly “pragmatic” test, which was implicitly adopted

by the Ninth Circuit in the instant case, knows no

bounds because the situations in which a case may

have some “practical effect” on an abstract environ-

mental “concern” are almost limitless. Thus, envi-

ronmental groups now have an open invitation to

move to intervene and voice their abstract “concerns”

in QTA cases across the country. To say that such an

open invitation defeats the purpose of the Federal

Rules of Civil Procedure, which is to secure the “just,

speedy, and inexpensive determination of every

action,” Fed. R. Civ. P. 1, is an understatement.

Indeed, as explained by the concurring opinion in San

Juan County:

An intervenor in a quiet title action seeking

to maintain the land’s current use has every

incentive to use its participation to postpone

a final decision on the merits, thereby pro-

longing its use at the expense of the parties’

need to have a fina] adjudication of the title.

503 F.3d at 1210 (concurring opinion)."

* The concurring opinion could have been referring to the

situation in the instant case. Petitioner and the United States

resolved their differences regarding the disputed right-of-way in

2001. Pet. App. 4. Seven years later, they are being held hostage

(Continued on following page)

19

In short, the Ninth Circuit’s decision in the

instant case has turned federal courts into public

forums for debating federal land management policy.

Federal courts, however, are not the place to debate

policy. Cf., Valley Forge Christian College v. Ameri-

cans United for Separation of Church and State, Inc.,

454 U.S. 464, 472 (1982) (Standing ensures that

“legal questions ... will be resolved, not in the rari-

fied atmosphere of a debating society, but in a con-

crete factual context conducive to a_ realistic

appreciation of the consequences of judicial action.”);

United States v. Richardson, 418 U.S. 166, 174 (1974)

(A taxpayer may not use “‘a federal court as a forum

in which to air his generalized grievances about the

conduct of government or the allocation of power in

the Federal System.’”) (quoting Flast v. Cohen, 392

U.S. 83, 106 (1968)); Warth, 422 U.S. at 499-500

(noting that under the separation of powers doctrine

“generalized grievances” need to be aired before the

other branches of government). Indeed, as the Court

of Federal Claims explained twelve years ago in

denying intervention to environmental groups in an

inverse condemnation action:

The courts have never been a proper place to

debate public policy, though this may appeal

in a QTA case by environmental groups that have no ownership

intcrest in the real property. Because the Ninth Circuit vacated

the approved settlement agreement, Pet. App. 9, and remanded

with instructions for the district court to consider the purported

objections of the environmental groups, Pet. App. 13-14, Peti-

tioner and the United States may be held hostage for another

seven years

20

to the judicial ego. Once judges start setting

public policy they cease to be the least dan-

gerous branch.

Hage v. United States, 35 Fed. Cl. 737, 741 (Fed. Cl.

1996).

Taken to its extreme, however, the rationale of

the Ninth Circuit’s decision may now be used by

environmental groups to intervene in inverse con-

demnation cases, as well as eminent domain proceed-

ings. Therefore this Court should grant review to

prevent environmental groups from turning federal

courts into public forums for debating federal land

management policies.

CONCLUSION

For the foregoing reasons, this Court should

grant the Petition for Writ of Certiorari.

Respectfully submitted by:

STEVEN J. LECHNER

Counsel of Record

WILLIAM PERRY PENDLEY

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Amicus Curiae

December 1, 2008