The Wilderness Soc'y v. Kane County, No. 08–4090.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: PAUL KELLY, JR., Circuit Judge, joined by TACHA, MURPHY, HARTZ, TYMKOVICH, and HOLMES, Circuit Judges.
• Citation: 632 F.3d 1162
• Parties: THE WILDERNESS SOCIETY; Southern Utah Wilderness Alliance, Plaintiffs–Appellees,v.KANE COUNTY, UTAH; Daniel W. Hulet, Mark W. Habbeshaw, and Duke Cox, in their official capacities as Kane County Commissioners, Defendants–Appellants.Utah Association of Counties; National Trust For Historic Preservation; Patrick A. Shea, Michael P. Dombeck, James Baca, Former Directors of the Bureau of Land Management; Natural Resources and Public Lands Law Professors; State of Utah; Sierra Club; National Parks Conservation Association; National Senior Citizens Law Center, AARP, and National Health Law Program, Amici Curiae.
• Docket Number: No. 08–4090.
• Decision Date: 11 January 2011

632 F.3d 1162

THE WILDERNESS SOCIETY; Southern Utah Wilderness Alliance, Plaintiffs–Appellees,
v.
KANE COUNTY, UTAH; Daniel W. Hulet, Mark W. Habbeshaw, and Duke Cox, in their official capacities as Kane County Commissioners, Defendants–Appellants.Utah Association of Counties; National Trust For Historic Preservation; Patrick A. Shea, Michael P. Dombeck, James Baca, Former Directors of the Bureau of Land Management; Natural Resources and Public Lands Law Professors; State of Utah; Sierra Club; National Parks Conservation Association; National Senior Citizens Law Center, AARP, and National Health Law Program, Amici Curiae.

No. 08–4090.

United States Court of Appeals, Tenth Circuit.

Jan. 11, 2011.

[632 F.3d 1164]

Michael S. Lee, Howrey LLP, Salt Lake City, UT (Thomas R. Lee, Provo, UT, Shawn T. Welch and Kendra Shirey, Holme Roberts & Owen LLP, Salt Lake City, UT, with him on the briefs), for the Appellants.James S. Angell, Earthjustice, Denver, CO (Edward B. Zukoski, Earthjustice, Denver, CO, and Heidi J. McIntosh, Stephen H.M. Bloch, Southern Utah Wilderness Alliance, Salt Lake City, UT, with him on the briefs), for the Appellees.Michael S. Lee, Howrey LLP, and Thomas R. Lee, Provo, UT, filed a brief on behalf of Amicus Curiae, Utah Association of Counties.Elizabeth S. Merritt, Michael D. Smith, Alexander Hays, V., National Trust for Historic Preservation in the United States, Washington, D.C., filed a brief on behalf of Amicus Curiae, National Trust for Historic Preservation.W. Cullen Battle, Fabian & Clendenin, Salt Lake City, UT, filed a brief on behalf of Amicus Curiae, Patrick A. Shea, James Baca, and Michael P. Dombeck, Former Directors of the Bureau of Land Management.Sarah Krakoff, University of Colorado Law School, filed a brief on behalf of the following Amicus Curiae Natural Resources and Public Lands Law Professors; Robert W. Adler, University of Utah, S.J. Quinney College of Law, Eric Biber, University of California, Berkeley, Bret C. Birdsong, William S. Boyd School of Law, University of Nevada, Las Vegas, Michael C. Blumm, Lewis and Clark Law School, Joe Feller, Arizona State University, Dale Goble, University of Idaho, Robert B. Keiter, University of Utah, S.J. Quinney College of Law, Christine A. Klein, University of Florida Levin College of Law, Amanda C. Leiter, The Catholic University of America, Columbus School of Law, John D. Leshy, University of California, Hastings College of Law, James R. Ray, University of Colorado Law School, Mark Squillace, University of Colorado Law School.Charles Wilkinson, University of Colorado Law School, and Sandra Zeller, University of Nebraska College of Law.Harry Souvall, Assistant Utah Attorney General, (Mark L. Shurtleff, Utah Attorney General with him of the brief) filed a brief on behalf of Amicus Curiae State of Utah.Eric E. Huber, Boulder, CO, filed a brief on behalf of Amicus Curiae Sierra Club.W. Cullen Battle, Fabian & Clendenin, Salt Lake City, UT filed a brief on behalf of Amicus Curiae National Parks Conservation Association.Rochelle Bobroff, Herbert Semmel Federal Rights Project, filed a brief on behalf of Amicus Curiae National Senior Citizens Law Center, AARP, and National Health Law Program.Before BRISCOE, Chief Circuit Judge, HOLLOWAY, TACHA, KELLY, LUCERO, MURPHY, HARTZ, O'BRIEN, TYMKOVICH, GORSUCH, HOLMES and MATHESON ^*, Circuit Judges.PAUL KELLY, JR., Circuit Judge, joined by TACHA, MURPHY, HARTZ, TYMKOVICH, and HOLMES, Circuit Judges.

We granted rehearing en banc to consider several issues in this suit challenging a

[632 F.3d 1165]

local government's rights of way over federal lands in southern Utah. The Wilderness Society and other environmental groups (collectively “TWS”) brought this action challenging Kane County's assertion of R.S. 2477 rights of way over federal lands managed by the Bureau of Land Management and the National Park Service. TWS sued under the Supremacy Clause of the U.S. Constitution, alleging that federal statutes, regulations, and agency management decisions preempted Kane County's actions. The district court granted TWS's motion for summary judgment, holding that Kane County must first establish the validity of its R.S. 2477 rights in a separate action and, until it did so, federal law preempted any ordinances and actions to assert those rights. The district court also enjoined Kane County from any action to open routes over federal lands to public use.

A divided panel affirmed the district court. See Wilderness Soc'y v. Kane County, 581 F.3d 1198 (10th Cir.2009). According to the panel: (1) TWS demonstrated constitutional and prudential standing; (2) the matter was not moot; (3) TWS had a cause of action under the Supremacy Clause; (4) the State of Utah and the United States were not necessary parties; and (5) the district court correctly decided the merits of the preemption claims. Id. at 1209–26.

We reverse because TWS lacks prudential standing to sue. The general prohibition against third-party standing applies to a Supremacy Clause challenge where TWS seeks to vindicate the property rights of the federal government, and no countervailing factors exist here which might permit standing.

Background 1. R.S. 2477 Rights of Way

This case is the latest stage in years of litigation over road rights on federal lands in southern Utah. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004); Kane County v. United States, 597 F.3d 1129 (10th Cir.2010); Kane County v. Salazar, 562 F.3d 1077 (10th Cir.2009); San Juan County v. United States, 503 F.3d 1163 (10th Cir.2007) (en banc); Utah Shared Access Alliance v. Carpenter, 463 F.3d 1125 (10th Cir.2006); S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735 (10th Cir.2005) (“ SUWA ”); Sierra Club v. Lujan, 949 F.2d 362 (10th Cir.1991); Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.1988). Like most of those cases, this one concerns the nature of Congress's grant of a “right of way for the construction of highways over public lands, not reserved for public uses.” Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by Federal Land Policy and Management Act of 1976 (“FLPMA”), Pub.L. No. 94–579, § 706(a), 90 Stat. 2743. Known as “R.S. 2477,” this statute and the roads established under its authority “were an integral part of the congressional pro-development lands policy.” SUWA, 425 F.3d at 741.

The establishment of these rights of way “required no administrative formalities: no entry, no application, no license, no patent, and no deed on the federal side; no formal act of public acceptance on the part of the states or localities in whom the right was vested.” Id. Indeed, “R.S. 2477 was a standing offer of a free right of way over the public domain,” the acceptance of which occurred “without formal action by public authorities.” Id. (internal citations and quotation marks omitted). “All that is required” for title to pass “are acts on the part of the grantee sufficient to manifest an intent to accept the congressional offer.” Id. at 754; see also

[632 F.3d 1166]

San Juan County, 503 F.3d at 1168 (“ ‘[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.’ ” (quoting Hodel, 848 F.2d at 1078)). Although FLPMA repealed R.S. 2477 in 1976, it expressly preserved any existing rights-of-way. Pub.L. No. 94–579, § 701(a), 90 Stat. 2743, 2786 (“Nothing in this Act ... shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this act.”); § 701(h), 90 Stat. 2743, 2786 (“All actions by the Secretary concerned under this Act shall be subject to valid existing rights.”).

2. Kane County's Actions

The events relevant to this case began in March 2003, when Kane County requested that BLM remove its road signs closing certain routes in the Grand Staircase–Escalante National Monument. Aplt.App. 848–51. The BLM's management plan for the Monument closed many routes to off-highway vehicles such as all-terrain vehicles, snowmobiles, and the like. See id. at 2856. The management plan depicted the open routes on a map labeled “Map 2,” but provided that “[a]ny route not shown on Map 2 is considered closed upon approval of this plan, subject to valid existing rights.” Id. at 1624, 1628. The plan contemplated the assertion of R.S. 2477 rights in the Monument:

If claims are determined to be valid R.S. 2477 highways, the Approved Plan will respect those as valid existing rights.... Nothing in this Plan alters in any way any legal rights the Counties of Garfield and Kane or the State of Utah has [sic] to assert and protect R.S. 2477 rights, and to challenge in Federal court or other appropriate venue any BLM road closures that they believe are inconsistent with their rights.

Id. at 1624 & n. 1. The County's March 2003 letter asserted that the BLM had wrongfully closed “county roads asserted as R.S. 2477 Rights–of–Way.” Id. at 848. The County proposed some temporary solutions, but the BLM would not remove the signs. Id. at 850, 853.

In August 2003, the County removed thirty-one BLM signs from alleged R.S. 2477 rights of way, returned the signs to BLM, and wrote BLM a letter detailing its actions. Id. at 853–54. In 2005, the County posted its own signs along routes in the Monument that the County understood to be county roads. Id. at 756–57, 921. The signs indicated that the routes were open to off-highway vehicle use despite the management plan. Id. at 1635–36. The County later removed “some” of these signs “pending consideration of the roads' status and uses.” Id. at 929. In August 2005, the County adopted Ordinance No. 2005–03, which opened Class B and Class D county roads to off-highway vehicle use. Id. at 1755. The Ordinance...