597 F.3d 1129 (10th Cir. 2010), 09-4087, Kane County, Utah v. United States

Docket Nº:09-4087.
Citation:597 F.3d 1129
Opinion Judge:BRISCOE, Circuit Judge.
Party Name:KANE COUNTY, UTAH, a political subdivision, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellee. Southern Utah Wilderness Alliance, Wilderness Society, Sierra Club, Movants-Appellants.
Attorney:Heidi J. McIntosh, Southern Utah Wilderness Alliance, Salt Lake City, UT (Steven H.M. Bloch, Southern Utah Wilderness Alliance, Salt Lake City, UT; Edward B. Zukoski and Andrea Zaccardi, Earthjustice, Denver, CO, with her on the briefs), for Movants to Intervene-Appellants Southern Utah Wildernes...
Judge Panel:Before KELLY, EBEL, and BRISCOE, Circuit Judges.
Case Date:March 08, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1129

597 F.3d 1129 (10th Cir. 2010)

KANE COUNTY, UTAH, a political subdivision, Plaintiff-Appellee,

v.

UNITED STATES of America, Defendant-Appellee.

Southern Utah Wilderness Alliance, Wilderness Society, Sierra Club, Movants-Appellants.

No. 09-4087.

United States Court of Appeals, Tenth Circuit.

March 8, 2010

Page 1130

Heidi J. McIntosh, Southern Utah Wilderness Alliance, Salt Lake City, UT (Steven H.M. Bloch, Southern Utah Wilderness Alliance, Salt Lake City, UT; Edward B. Zukoski and Andrea Zaccardi, Earthjustice, Denver, CO, with her on the briefs), for Movants to Intervene-Appellants Southern Utah Wilderness Alliance, Wilderness Society, and Sierra Club.

Shawn T. Welch (Kendra L. Shirey and Janna B. Custer with him on the brief), of Holme, Roberts & Owen LLP, Salt Lake City, UT, for Plaintiff-Appellee Kane County, Utah.

Aaron P. Avila, Attorney, Environment & Natural Resources Division, United States Department of Justice, Washington, DC (John C. Cruden, Acting Assistant Attorney General; Brett L. Tolman, United States Attorney; John K. Mangum, Assistant United States Attorney; James E. Karkut, Office of the Regional Solicitor Department of the Interior, Salt Lake City, UT; Romney S. Philpott, Attorney, Environment & Natural Resources Division, United States Department of Justice, Washington, DC, with him on the brief), for Defendant-Appellee United States.

Before KELLY, EBEL, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Southern Utah Wilderness Alliance, The Wilderness Society and the Sierra Club (collectively SUWA) appeal from the district court's denial of their motion to intervene in this action brought by Kane County, Utah, to quiet title to several purported rights-of-way across federal public lands within Kane County. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

Kane County encompasses approximately 1.6 million acres of federal public land, nearly 1.3 million acres of which lie within the Grand Staircase-Escalante National Monument (Monument). The non-Monument federal public land that lies within Kane County includes wilderness study areas, as well as portions of land that SUWA is advocating for protection under its long-proposed America's Red Rock Wilderness Act (a piece of legislation that has been repeatedly introduced, but never adopted by Congress). Historically, Kane County officials have maintained public transportation routes that pass through or abut these areas of federal public land.

On April 25, 2008, Kane County initiated this action by filing a complaint against the United States under the Quiet Title Act, 28 U.S.C. § 2409a, seeking to quiet title to two roads, Mill Creek Road and Bald Knoll Road, both of which are located in western Kane County, approximately 20 miles northeast of Kanab, Utah, and cross

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portions of federal public land.1 The complaint alleged that under a Reconstruction-era law known as Revised Statute 2477 (R.S. 2477) 2, Kane County had " accepted R.S. 2477 rights-of-way for" these two roads " on public lands not reserved for public uses." App. at 19. More specifically, the complaint alleged that Kane County had designated both roads " as public highways and [had] expend[ed] public funds to construct and maintain these roads prior to [the] October 21, 1976" repeal of R.S. 2477. Id. In addition, the complaint alleged that both roads had been " continuous[ly] use[d] as public thoroughfares for a period in excess of ten years prior" to the repeal of R.S. 2477. Id. at 20. The first claim alleged in the complaint sought to quiet title to Kane County's purported " R.S. 2477 public highway right-of-way for the Mill Creek [R]oad," " includ[ing] a right-of-way width of 66 feet...." Id. at 35. The second claim alleged in the complaint sought, in similar fashion, to quiet title to Kane County's purported R.S. 2477 public highway right-of-way for Bald Knoll Road, " includ[ing] a right-of-way width of 66 feet...." Id. at 36.

On July 14, 2008, the United States filed an answer asserting six specific defenses to the two claims alleged in Kane County's complaint: (1) the district court " lack[ed] jurisdiction over the subject matter of th[e] action due to [Kane County]'s failure to satisfy the ‘ particularity’ requirement of the Quiet Title Act and thereby invoke a waiver of the United States' sovereign immunity under the Act," id. at 61; (2) the district court " lack[ed] jurisdiction over the subject matter of th[e] action due to [Kane County]'s failure to allege facts sufficient to show that it c[ould] satisfy the statute of limitations set forth in the Quiet Title Act," id.; (3) the district court " lack[ed] jurisdiction over the subject matter of th[e] action due to [Kane County]'s failure to allege a justiciable case or controversy between the parties," id. ; (4) Kane County " failed to state a claim upon which relief c[ould] be granted," id.; (5) Kane County " failed to join indispensable parties under Rule 19 of the Federal Rules of Civil Procedure with respect to the claimed rights-of-way that cross[ ] private land," id. at 62; and (6) Kane County's " claims are barred by the statute of limitations in the Quiet Title Act." Id.

On September 24, 2008, Kane County moved for leave to file an amended complaint. Attached to the motion was a proposed amended complaint asserting seven additional claims to quiet title to ten additional roads: Skutumpah, Swallow Park/Park Wash, North Swag and Nipple Lake Roads in western Kane County; and Sand Dune, Hancock, and four Cave Lakes Roads in southwestern Kane County. Id. at 98-129. The United States did not oppose the motion. On October 30, 2008, the district court granted Kane County's motion. Id. at 143. Kane County's amended complaint was subsequently filed on November 10, 2008.

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On November 26, 2008, SUWA...

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