503 F.3d 1163 (10th Cir. 2007), 04-4260, San Juan County, Utah v. United States

Docket Nº:04-4260.
Citation:503 F.3d 1163
Party Name:SAN JUAN COUNTY, UTAH, a Utah political subdivision, Plaintiff-Appellee, v. UNITED STATES of America; Department of Interior; National Park Service, Defendants-Appellees, Alaska Wilderness League, California Wilderness Coalition, California Environmental Coalition, Colorado Mountain Club, Greater Yellowstone Coalition, National Parks Conservation A
Case Date:October 02, 2007
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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503 F.3d 1163 (10th Cir. 2007)

SAN JUAN COUNTY, UTAH, a Utah political subdivision, Plaintiff-Appellee,

v.

UNITED STATES of America; Department of Interior; National Park Service, Defendants-Appellees,

Alaska Wilderness League, California Wilderness Coalition, California Environmental Coalition, Colorado Mountain Club, Greater Yellowstone Coalition, National Parks Conservation Association, National Wildlife Refuge Association, New Mexico Wilderness Alliance, San Juan Citizens Alliance, Sierra Club, Southeast Alaska Conservation Council, Wyoming Outdoor Council; State of Utah; Mountain States Legal Foundation; Civil Procedure and Public Lands Law Professors; States of New Mexico, California and Oklahoma; Property Owners for Sensible Roads Policy, Amici Curiae,

Southern Utah Wilderness, Alliance, a Utah non-profit corporation; Grand Canyon Trust; The Wilderness Society, Movants-Appellants.

No. 04-4260.

United States Court of Appeals, Tenth Circuit

October 2, 2007

ON REHEARING EN BANC FROM AN APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, D.C. NO. 2:04-CV-552-BSJ

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James S. Angell, Earthjustice, Denver, CO (Edward B. Zukoski, Eric G. Biber, Earthjustice, with him on the briefs for Movants - Appellants, and Heidi J. McIntosh, Stephen H.M. Bloch, Southern Utah Wilderness Alliance, Salt Lake City, with him on the briefs for Appellant Southern Utah Wilderness Alliance).

Aaron P. Avila, Attorney, Environment & Natural Resources Division, United States Department of Justice, Washington, DC, for Defendants-Appellees, and Shawn T. Welch, Pruitt Gushee, P.C., Salt Lake City, UT, for Plaintiff -Appellee (Sue Ellen Wooldridge, Assistant Attorney General, Paul M. Warner, United States Attorney, Carlie Christensen, Assistant United States Attorney, Bruce D. Bernard and John L. Smeltzer, Attorneys, Environment & Natural Resources Division, United States Department of Justice, Washington, DC, and G. Kevin Jones, Attorney/Advisor, Office of the Solicitor, Department of the Interior, Salt Lake City, UT, with Aaron P. Avila on the briefs for Defendants-Appellees, and A. John Davis, Pruitt Gushee, P.C., with Shawn T. Welch on the briefs for Appellee San Juan County, Utah).

Jayme Ritchie and William Perry Pendley, Mountain States Legal Foundation, Lakewood, CO, filed an amicus curiae brief for Plaintiff - Appellee.

Patrick J. Crank, Wyoming Attorney General, Cheyenne, Wyoming, and Mark L. Shurtleff, Utah Attorney General, Salt Lake City, UT (J. Mark Ward, Edward O. Ogilvie, Jaysen R. Oldroyd, Assistant Attorneys General, and Ralph L. Finlayson, Special Assistant Attorney General, Salt Lake City, UT, with him on the brief) filed an amicus curiae brief for Plaintiff - Appellee and Defendants - Appellees.

Sarah Krakoff, Associate Professor, University of Colorado Law School, Boulder, CO, on behalf of Civil Procedure and Public Lands Law Professors; Michael S. Freeman, Faegre & Benson LLP, Denver, CO, on behalf of Property Owners for Sensible Roads Policy; and Louis R. Cohen, James R. Wrathall, Brian M. Boynton, Theodore C. Liazos, Wilmer, Cutler, Pickering, Hale and Dorr LLP, Washington, DC filed an amicus curiae brief for Movants - Appellants.

Patricia A. Madrid, New Mexico Attorney General, Santa Fe, NM, (Stephen R. Farris and Judith Ann Moore, Assistant Attorneys General, with her on the brief), Bill Lockyer, Attorney General of California, W.A. Drew Edmondson, Attorney General of Oklahoma, Oklahoma City, OK, filed an amicus curiae brief on behalf of the States of New Mexico, California, and Oklahoma, in support of neither party and in support of neither affirmance nor reversal.

Before TACHA, Chief Circuit Judge, SEYMOUR, PORFILIO, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL, and HOLMES, Circuit Judges.

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HARTZ, Circuit Judge, joined by HENRY and MURPHY, Circuit Judges, and joined in all but Part IV (B) by SEYMOUR, EBEL, BRISCOE, and LUCERO, Circuit Judges.

We have granted en banc review in this case to resolve difficult issues concerning intervention under Fed.R.Civ.P. 24. Several conservation groups-Southern Utah Wilderness Alliance, The Wilderness Society, and the Grand Canyon Trust (collectively, SUWA)-seek to intervene in a federal quiet-title action brought by San Juan County, Utah, against the United States, the Department of Interior, and the National Park Service (the NPS). (We will refer to the defendants collectively as the Federal Defendants.) The County sued to quiet title to the right-of-way it claims for Salt Creek Road, "an unpaved and ungraded jeep trail that runs in and out of Salt Creek" in Canyonlands National Park. 69 Fed. Reg. 32,871 (June 14, 2004). Opposed to County control of the road, SUWA applied to intervene as a matter of right under Fed.R.Civ.P. 24(a)(2) and permissively under Fed.R.Civ.P. 24(b). The district court denied the applications, and SUWA appealed.

The original parties to the action, the County and the Federal Defendants (collectively the Appellees), filed briefs supporting the district court's denial of intervention.1A divided panel of this court held that SUWA was entitled to intervene as a matter of right. See San Juan County v. United States, 420 F.3d 1197, 1201 (10th Cir. 2005). Because the panel granted intervention as of right, it did not address permissive intervention. See id. at 1213-14. We now hold: (1) applicants for intervention need not establish standing, (2) sovereign immunity does not bar SUWA's intervention, and (3) despite satisfying the other requirements for intervention under Rule 24(a), SUWA is not entitled to intervene as of right because it failed to overcome the presumption that its interest was adequately represented by the Federal Defendants. We also affirm the district court's denial of SUWA's application for permissive intervention under Rule 24(b).

I. BACKGROUND

A. R.S. 2477 Rights-of-Way

The underlying controversy is one of many throughout the West that concern an alleged right-of-way across federal land arising under Revised Statute 2477, enacted by Congress in 1866. R.S. 2477 provided for "right[s]-of-way for the construction of highways over public lands, not reserved for public uses." An Act Granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for Other Purposes, Ch. CCLXII § 8, 14 Stat. 251, 253 (1866). This statute reflected a "congressional policy promot[ing] the development of the unreserved public lands and their passage into private productive hands," S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 740 (10th Cir. 2005), by making "a standing offer of a free right of way over the public domain," id. at 741 (internal quotation marks omitted). See generally Harry R.

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Bader, Potential Legal Standards for Resolving the R.S. 2477 Right of Way Crisis, 11 Pace Envtl. L. Rev. 485 (1994). "[A] right-of-way could be obtained without application to, or approval by, the federal government. Rather, the grant referred to in R.S. 2477 became effective upon the construction or establishing of highways, in accordance with the state laws." Sierra Club v. Hodel, 848 F.2d 1068, 1078 (10th Cir. 1988) (citations, brackets, and internal quotation marks omitted), overruled in part on other grounds by Vill. of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir. 1992) (en banc).

R.S. 2477 was repealed by the Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, § 706(a), 90 Stat. 2743, 2793. But that Act "explicitly protect[ed] R.S. 2477 rights-of-way in existence" at the time of its enactment. Sierra Club, 848 F.2d at 1078. Because such a right-of-way could have come into existence without any judicial or other governmental declaration, much litigation continues over whether rights-of-way were in fact created on public land.

B. Earlier Litigation

San Juan County's quest for title to Salt Creek Road stems from its dissatisfaction with restrictions on travel imposed while the road has been under federal control. In 1992 the NPS began preparation of a Backcountry Management Plan for Canyonlands National Park. See S. Utah Wilderness Alliance v. Dabney, 7 F.Supp.2d 1205, 1207 (D. Utah 1998), rev'd, 222 F.3d 819 (10th Cir. 2000). SUWA submitted comments and communicated with NPS personnel with the goal of closing Salt Creek Road to vehicular traffic. The final Backcountry Management Plan, published in January 1995, established a system of gates and permits to limit vehicular traffic, but it stopped short of closing the road. SUWA sued the NPS in federal court, challenging the plan. See id. at 1206, 1209. On June 19, 1998, the district court ruled that the NPS had violated the National Park Service Organic Act by permitting vehicular traffic in Salt Creek Canyon beyond Peekaboo Spring (also referred to as Peekaboo campsite). See id. at 1211. As a result of this decision, the Canyon was closed to vehicular traffic.

On August 15, 2000, we reversed the district court, holding that it had used an improper standard of review and remanding for further proceedings. See S. Utah Wilderness Alliance v. Dabney, 222 F.3d 819, 822, 829 (10th Cir. 2000). Shortly thereafter, on October 23, 2000, the NPS issued a temporary order closing Salt Creek Canyon above Peekaboo Spring to vehicular traffic while it engaged in formal rulemaking regarding use of the Canyon.

Two days later the County, asserting an R.S. 2477 right-of-way through Salt Creek Canyon, informed Canyonlands officials that NPS signs and gates near Salt Creek Road would be forcibly removed by County officials if the NPS did not remove them by December 1, 2000. A few days...

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