# Amicus Curiae Brief — 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%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0781%3A3. Public record. Not legal advice.