The Wilderness Society v. Kane County, Utah

Decision Date31 August 2009
Docket NumberNo. 08-4090.,08-4090.
Citation581 F.3d 1198
PartiesTHE WILDERNESS SOCIETY and 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, and James Baca, former Directors of the Bureau of Land Management, Amici Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Michael S. Lee (Shawn T. Welch and Kendra Shirey, Holme Roberts & Owen LLP, Salt Lake City, UT, with him on the briefs), Howrey LLP, Salt Lake City, UT, for Defendants-Appellants.

James S. Angell (Edward B. Zukoski; Heidi J. McIntosh and Stephen H.M. Bloch, Southern Utah Wilderness Alliance, with him on the briefs), Earthjustice, Denver, CO, for Plaintiffs-Appellees.

Before LUCERO, HOLLOWAY, and McCONNELL, Circuit Judges.

LUCERO, Circuit Judge.

More than 1.6 million acres of federal public land lie within Kane County, Utah, which includes some of the most fragile and picturesque public lands in the United States. This case involves a dispute over alleged but unproven rights of way over these federal lands created by a Reconstruction-era law known as Revised Statute 2477 ("R.S. 2477"). At base, we face an ordering question: May a county exercise management authority over federal lands in a manner that conflicts with the federal management regime without proving that it possesses valid R.S. 2477 rights of way? As did the district court, we answer this question in the negative.

There are thousands of miles of claimed R.S. 2477 rights of way across federal lands in the western United States. This case involves some of those rights. In most instances, the scope and extent of such rights have never been placed at issue. This case involves some of those claimed R.S. 2477 rights as to which a dispute has arisen.1 Apparently claiming valid but admittedly unadjudicated R.S. 2477 rights, Kane County enacted an ordinance opening routes on federal land to off-highway vehicle ("OHV") use. It removed Bureau of Land Management ("BLM") signs from the routes in question, replacing them with its own signs. Two environmental groups, The Wilderness Society ("TWS") and the Southern Utah Wilderness Alliance ("SUWA") (collectively, the "environmental plaintiffs"), filed suit, alleging that the Ordinance and the County's signage activities were preempted by federal law.

Kane County advanced numerous arguments below, contending: (1) the environmental plaintiffs lacked standing; (2) the case became moot when the County rescinded the challenged ordinance; (3) the environmental plaintiffs did not possess a cause of action; and (4) both the United States and the State of Utah were necessary and indispensable parties. Rejecting each of these assertions, the district court found that Kane County's activities were preempted and enjoined it from enacting similar ordinances or posting signs on unproven R.S. 2477 routes.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


Nearly 1.3 million of the 1.6 million acres of federal public land in Kane County lie within Grand Staircase-Escalante National Monument ("Grand Staircase-Escalante" or "the Monument"). The other areas involved in this case include: Glen Canyon National Recreation Area ("Glen Canyon NRA"), Paria Canyon-Vermilion Cliffs Wilderness Area ("Paria Canyon"), and Moquith Mountain Wilderness Study Area ("Moquith Mountain WSA").2 Although these lands are managed under a variety of federal statutes and regulations, all of the lands in question must be managed "subject to valid existing rights." Federal Land Policy and Management Act of 1976 ("FLPMA"), Pub.L. No. 94-579, § 701(h), 90 Stat. 2744, 2786 (1976); see also 43 U.S.C. § 1782(c) (WSAs, including Moquith Mountain); Arizona Wilderness Act of 1984, Pub.L. No. 98-406, §§ 301(a)(7), 302(a), 98 Stat. 1485, 1493 (1984) (Paria Canyon Wilderness Area); An Act to establish the Glen Canyon National Recreation Area in the States of Arizona and Utah, Pub.L. No. 92-593, § 3(a), 86 Stat. 1311, 1312 (1972) (Glen Canyon NRA); Grand Staircase-Escalante National Monument Management Plan 46 (1999), available at st/en/fo/grand_staircase-escalante/ planning/monument_management.html [hereinafter Monument Plan] (Grand Staircase-Escalante).

Overlaying this complex framework is R.S. 2477, which created rights of way to construct highways over public land. That statute allows the creation of rights of way without any "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." S. Utah Wilderness Alliance v. BLM, 425 F.3d 735, 741 (10th Cir.2005) [hereinafter SUWA v. BLM]; accord An Act Granting the Right of Way to Ditch and Canal Owners Over the Public Lands, and for Other Purposes, ch. 262, § 8, 14 Stat. 251, 253 (1866), repealed by FLPMA § 706(a). Because FLPMA repealed R.S. 2477, no new R.S. 2477 rights have been created since 1976. SUWA v. BLM, 425 F.3d at 741. Then-existing rights, however, were explicitly preserved. Id.


The ongoing feud over OHV use on federal lands in Kane County has its roots in a Department of the Interior land management plan that governs Grand Staircase-Escalante. Notice of the plan was published in the Federal Register. Grand Staircase-Escalante National Monument Approved Management Plan and Record of Decision, 65 Fed.Reg. 10,819 (Feb. 29, 2000). Included in the Monument Plan was a map, known as "Map 2," which displays all roads in the Monument that are open to vehicle traffic. Monument Plan 46. Roads not indicated as open on Map 2 are closed "subject to valid existing rights." Id.

In 2003, after asserting that BLM road signs inside the Monument violated state law, Kane County officials unilaterally removed thirty-one such signs. Thirty of the removed signs restricted OHV travel. Approximately a year and a half later, county officials began erecting numerous county road signs on federal lands. Despite ongoing dialogue with BLM regarding which roads were disputed and which were agreed-upon R.S. 2477 roadways and a request from BLM that the County not place signs on the disputed roadways, Kane County pursued its signage program unabated. The environmental plaintiffs claim that Kane County placed 268 signs on BLM lands, including 103 inside Grand Staircase-Escalante, at least sixty-three of which purport to open routes to OHV use that are closed to such use under the Monument Plan.3

On August 22, 2005, the Kane County Board of Commissioners passed Ordinance 2005-03 (the "Ordinance") to regulate OHV use on county Class B and Class D roads.4 The Ordinance authorized Kane County to create a map showing which roads are open to OHV use, or to "post signs designating lands, trails, streets, or highways open to OHV use." Kane County opted not to create an OHV map pending a final decision in SUWA v. BLM, which also implicated the interplay between alleged R.S. 2477 rights and BLM regulation.5 Yet, Kane County admitted before the district court that the Ordinance authorized OHV use on routes within the Monument that do not appear on Map 2, as well as routes in Glen Canyon NRA, Paria Canyon, and Moquith Mountain WSA. Kane County further admitted that "no court or federal agency has issued a binding, final determination that Kane County possesses R.S. 2477 rights-of-way for any Class B and Class D road" in those four areas with one exception, Skutumpah Road. BLM administratively determined that Skutumpah Road is an R.S. 2477 right of way, although such administrative determinations are not legally binding, SUWA v. BLM, 425 F.3d at 757-58.


Shortly after passage of the Ordinance, the environmental plaintiffs filed suit in United States District Court for the District of Utah on October 13, 2005. On that date, the county signs in controversy were still posted. They sought declarations that the Ordinance and Kane County's signage program are preempted because they conflict with federal management schemes. They also requested an injunction prohibiting Kane County from adopting an ordinance or otherwise opening roads that are closed to OHV use under federal law and ordering the County to remove its signs from all such routes.

Kane County moved to dismiss under several sections of Federal Rule of Civil Procedure 12(b), arguing lack of subject matter jurisdiction, failure to state a claim, and failure to join necessary and indispensable parties (the State of Utah and the United States). The district court rejected each of these arguments, agreeing with the environmental plaintiffs that it "need not make any final determination regarding the existence of any R.S. 2477 right-of-way in order to grant TWS's requested relief." Following this order, Kane County filed a Rule 59(e) motion to alter or amend the court's order denying dismissal, seeking permission to prove in this case that it possesses R.S. 2477 rights of way. The Rule 59(e) motion was denied and Kane County filed a notice of appeal from denial of the motion to dismiss. That appeal was then dismissed by stipulation of the parties.

In the same order in which it denied Kane County's motion to dismiss, the court granted the environmental plaintiffs' motion to amend their complaint. The amended complaint added an Endangered Species Act claim against BLM and the U.S. Fish and Wildlife Service. These federal defendants later moved successfully to dismiss the Endangered Species Act claim, and it is not at issue in this appeal.

On December 11, 2006, Kane County rescinded Ordinance 2005-03, indicating in the minutes of its meeting that it did so to "secure the most successful legal resolution to current federal roads litigation." County Commissioner Mark W. Habbeshaw testified...

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