Kane County v. U.S.A

• Citation: 597 F.3d 1129
• Decision Date: 08 March 2010
• Docket Number: No. 09-4087.,09-4087.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Parties: KANE COUNTY, UTAH, a political subdivision, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellee. Southern Utah Wilderness Alliance, Wilderness Society, Sierra Club, Movants-Appel 1 ants.

597 F.3d 1129

KANE COUNTY, UTAH, a political subdivision, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellee. Southern Utah Wilderness Alliance, Wilderness Society, Sierra Club, Movants-Appel 1 ants.

No. 09-4087.

United States Court of Appeals, Tenth Circuit.

March 8, 2010.

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 arwell as portions of land that SUWA is advocating for protection under its longproposed 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 crossportions of federal public land.¹ The complaint alleged that under a Reconstructionera 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, " "including] 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 im munity 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.

On November 26, 2008, SUWA moved for leave to intervene as of right "as a defendant in th[e] action pursuant to Fed. R.Civ.P. 24(a)(2)." Id. at 210. "In the alternative, SUWA reques[ed] leave to permissively intervene pursuant to Fed. R.Civ.P. 24(b)." Id. Both Kane County and the United States opposed SUWA's motion to intervene.

On April 6, 2009, the district court issued a memorandum decision and order denying SUWA's motion to intervene. After outlining the requirements for intervention as of right under Rule 24(a)(2), the district court noted that Kane County and the United States disputed "only the issues of whether SUWA, as a practical matter, ha[d] an interest that m[ight] be impaired or impeded and whether SUWA's interest [wa]s adequately represented by the existing parties." Id. at 772. With respect to the first of these issues, the district court concluded:

As is evident from the Complaint, the only issue in this case is whether Kane County can establish that it holds title to the roads at issue. How the lands adjacent to the roads will be managed and whether the roads themselves will be open to the public once title is determined are not issues that are relevant to the determination of the quiet title action. In this case, it is evident that SUWA does not have a "legal interest" in the usual understanding of that word in a title context. While SUWA obviously has an interest in the sense that it cares deeply about the outcome of the decision, it does not claim title to the roads at issue. This conclusion was evident by SUWA's concession at oral argument that, were the United States and Kane County to resolve all of the title issues as to the roads without SUWA's consent or participation, SUWA would have no right to continue with the action and the action would be dismissed.

Based on the specific facts in this case and the differences between the issues raised by Kane County and those in San Juan County, the court finds that SUWA has not established the element of having an impaired interest in the litigation. The issues raised in this case do not include the same factual underpinnings of continuing controversy over roads into areas that have been protected by the National Park Service as did the roads at issue in San Juan County.

Id. at 773-74 (emphasis added). The district court further concluded that SUWA had "failed to show that its interests in th[e] case [we]re not adequately represented by the United States, " id at 774:

The only issue to be resolved, as SUWA conceded at oral argument, is whether the United States or Kane County holds title. Whether Kane County can establish the requirements to show that it holds title to the roads based on R.S. 2477 will turn entirely on the historic use of these roads by the public for the period required under Utah law prior to 1976. In neither its briefing nor at a[sic] oral argument was SUWA able to proffer any evidence to which it would have access about the historical use of the roads that is not available to the United States. Moreover, SUWA does not present evidence that it has any special expertise, experience or knowledge with respect to the historic use of the roads that would not be available to the United States.

Indeed, the primary focus of SUWA's briefing in support of its motion is its long history of advocating to preserve the wilderness characteristics of the lands and the risks that opening the roads to the public may have on preserving such wilderness areas. None ofthese facts is relevant to the determination of whether Kane County holds title. * * * In San Juan County, the court reminded that "nothing we have said would contravene the holding that Rule 24(a)(2) does not require intervention as of right for the purpose of presenting only irrelevant argument or evidence." The only arguments that SUWA appears to be prepared to make in this case would not be made by the United States are those relating to the management of the land, which would be irrelevant and not admissible in evidence.

The United States argues that it has been and will be vigorous in defending its claim to legitimate title to the roads. The record does not compel a different conclusion. Absent evidence showing that the United States will not...