Kane County, Utah v. United States, 062519 FED10, 18-4122

Docket Nº:18-4122
Opinion Judge:PHILLIPS, Circuit Judge.
Party Name:KANE COUNTY, UTAH, Plaintiff - Appellee, v. UNITED STATES OF AMERICA, Defendant-Appellee. and THE STATE OF UTAH, Intervenor Plaintiff - Appellee, SOUTHERN UTAH WILDERNESS ALLIANCE; THE WILDERNESS SOCIETY, Movants - Appellants.
Attorney:Chad R. Derum, Manning Curtis Bradshaw & Bednar PLLC (Jess M. Krannich and Trevor J. Lee, Manning Curtis Bradshaw & Bednar PLLC, and Stephen H.M. Bloch, Southern Utah Wilderness Alliance, with him on the briefs), Salt Lake City, Utah, for Movants-Appellants. James A. Maysonett, United States Depa...
Judge Panel:Before TYMKOVICH, Chief Judge, EBEL, and PHILLIPS, Circuit Judges. TYMKOVICH, Chief Judge, dissenting.
Case Date:June 25, 2019
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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KANE COUNTY, UTAH, Plaintiff - Appellee,

and

THE STATE OF UTAH, Intervenor Plaintiff - Appellee,

v.

UNITED STATES OF AMERICA, Defendant-Appellee.

SOUTHERN UTAH WILDERNESS ALLIANCE; THE WILDERNESS SOCIETY, Movants - Appellants.

No. 18-4122

United States Court of Appeals, Tenth Circuit

June 25, 2019

Appeal from the United States District Court for the District of Utah (D.C. No. 2:08-CV-00315-CW)

Chad R. Derum, Manning Curtis Bradshaw & Bednar PLLC (Jess M. Krannich and Trevor J. Lee, Manning Curtis Bradshaw & Bednar PLLC, and Stephen H.M. Bloch, Southern Utah Wilderness Alliance, with him on the briefs), Salt Lake City, Utah, for Movants-Appellants.

James A. Maysonett, United States Department of Justice, Environment & Natural Resources Division (Jeffrey Bossert Clark, Assistant Attorney General, and Eric Grant, Deputy Assistant Attorney General, with him of the brief), Washington, D.C., for Defendant-Appellee United States of America.

Shawn T. Welch, Holland & Hart LLP (Richard D. Flint and Chelsea J. Davis, Holland & Hart LLP, with him on the brief), Salt Lake City, Utah, for Plaintiff-Appellee Kane County, Utah.

Sean D. Reyes, Utah Attorney General, Anthony L. Rampton, Kathy A.F. Davis, and David Halverson, Assistant Attorneys, Utah Attorney General's Office, Salt Lake City, Utah, on the brief for the Intervenor Plaintiff-Appellee The State of Utah.

Before TYMKOVICH, Chief Judge, EBEL, and PHILLIPS, Circuit Judges.

PHILLIPS, Circuit Judge.

This case comes to us for a third time. This time, we review SUWA's challenge to the district court's denial of its second motion to intervene. SUWA filed this second motion after we reversed the district court's determinations on the width of rights-of-way on three roadways. Responding to the issues now raised, we conclude that SUWA has standing to intervene as a party defendant; that we review SUWA's second motion to intervene de novo and not for an abuse of discretion; and that SUWA has met all requirements to intervene as of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court's denial of SUWA's second motion to intervene.

BACKGROUND

In 2008, Kane County sued the United States under the Quiet Title Act, 28 U.S.C. § 2409a, which provides "the exclusive means by which adverse claimants c[an] challenge the United States' title to real property." Block v. N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 286 (1983). Kane County alleged that it held title to fifteen rights-of-way under Section 8 of the Mining Act of 1866, more commonly known as "Revised Statute (R.S.) 2477." In enacting R.S. 2477, Congress codified "a standing offer of a free right of way over the public domain," allowing the construction of highways over public lands not already "reserved for public uses." Lindsay Land & Live Stock Co. v. Churnos, 285 P. 646, 648 (Utah 1929) (internal quotations omitted). In 1976, Congress enacted the Federal Land Policy and Management Act, which repealed R.S. 2477, but preserved already-existing rights-of-way. 43 U.S.C. § 1769(a).

Seven months after Kane County filed its complaint, SUWA1 moved to intervene as of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure. Both Kane County and the United States opposed the motion. After a hearing, the district court denied SUWA's motion, concluding that SUWA had no legal interest in the asserted rights-of-way, because "the only issue in this case is whether Kane County can establish that it holds title to the roads at issue" and SUWA "does not claim title to th[ese] roads." Kane Cty., Utah v. United States, No. 2:08-CV-315, 2009 WL 959804, at *2 (D. Utah Apr. 6, 2009). The court further concluded that even if SUWA did have an interest, it had failed to show that the United States would not adequately represent that interest or that it possessed "any special expertise, experience, or knowledge with respect to the historic use of the roads that would not be available to the United States." Id. at *2-3.

In 2009, SUWA appealed, and in March 2010 we affirmed, concluding that "even assuming SUWA has an interest in the quiet title proceedings at issue, SUWA has failed to establish that the United States may not adequately represent SUWA's interest." Kane Cty., Utah v. United States, 597 F.3d 1129, 1133 (10th Cir. 2010) ("Kane County I"). Specifically, we rejected SUWA's argument that it had shown the United States would not adequately represent SUWA's interest in litigating title, despite SUWA's reliance on its history of adversarial relations with the Bureau of Land Management (BLM) and on the BLM's alleged unwillingness to defend federal control. Id. at 1134-35.

We raised the possibility of looking beyond the binary title determination to address the "potential scope of Kane County's purported rights-of-way." Id. at 1135. But we ultimately declined to do so after noting that SUWA had not argued in the district court that scope was part of the title determination. Id. Further, we noted that SUWA hadn't even raised the issue on appeal until questioned about it during oral argument. Id. Accordingly, we deemed the scope argument waived "for purposes of this appeal." Id. We affirmed on grounds that SUWA had "failed to establish, at this stage of the litigation, that the federal government will not adequately protect its interest." Id.

In March 2010, soon after we decided Kane County I, the district court granted the State of Utah's motion to intervene as of right as a plaintiff. Then, in August 2011, after having "traveled all of the roads at issue with counsel and representatives of the parties during a two-day site visit," the district court held a bench trial on the disputed rights-of- way. See Kane Cty., Utah (1) v. United States, No. 2:08-CV-00315, 2013 WL 1180764, at *1 (D. Utah Mar. 20, 2013). At trial, the court heard from twenty-six witnesses and received over one hundred and sixty exhibits. Kane Cty., Utah v. United States, 772 F.3d 1205 (10th Cir. 2014). After post-trial briefing, in which SUWA participated as an amicus curiae, [2] the district court issued memorandum decisions concluding that (1) it had subject-matter jurisdiction under the Quiet Title Act over all the disputed roads, and that (2) Kane County and the State of Utah had proved R.S. 2477 rights-of-way on twelve of the fifteen roads or road segments. Id. The court also decided the scope-i.e., the reasonable and necessary width based on the pre-1976 use-of the proved rights-of-way. Id.

In 2013, the United States and the plaintiffs each filed separate appeals. We summarily denied SUWA's motion to intervene in the cross-appeals. In 2014, we affirmed in part and reversed in part. Kane Cty., 772 F.3d at 1209-25 ("Kane County II"). Relevant here, we reversed the district court's scope determination for three of the rights-of-way-Swallow Park Road, North Swag Road, and Skutumpah Road-as well as its decision to allow "unspecified future improvements" on these three rights-of-way, id. at 1223-25.[3]

The "scope" of a right-of-way is a question of state law, and under Utah law a right-of-way may be expanded beyond the beaten path where "reasonable and necessary" to safely accommodate the pre-1976 use. Sierra Club v. Hodel, 848 F.2d 1068, 1080, 1083 (10th Cir. 1988), overruled on other grounds by Vill. of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992). In other words, an R.S. 2477 right-of-way in Utah may be widened "as necessary to meet the exigencies of increased travel, at least to the extent of a two-lane road." Id. at 1083. This analysis requires the district court to proceed in three steps. First, the court must make the binary determination of whether a right-of-way exists at all. Id. Second, the court must determine the pre-1976 uses of the right-of-way. Id. And third, the court must decide whether, based on the pre-1976 use, the right-of-way should be widened to meet the exigencies of increased travel. Id. To the extent that the right-of-way holder wishes to improve4 the right-of-way beyond what is reasonable and necessary, however, it must first consult with the BLM. Id. at 1084-85.

In its memorandum decision, the district court had concluded that Kane County and the State of Utah had proved 24-foot rights-of-way on Swallow Park and North Swag roads (five-mile stretches of dirt road with a current travel surface of between 10 and 12 feet), and a 66-foot right-of-way on Skutumpah Road (a "major two-lane thoroughfare" stretching thirty three miles with a current travel surface of between 24 and 28 feet). Kane Cty. II, 772 F.3d at 1223; Kane Cty., 2013 WL 1180764, at *9. But because the district court had failed to consider the pre-1976 uses of these roads...

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