Kane County, Utah v. United States
Dissenting Opinion
Kane County and the State of Utah are engaged in protracted litigation against the United States under the Quiet Title Act. In 2008, the district court denied the Southern Utah Wilderness Alliance's first attempt to intervene as of right under Federal Rule of Civil Procedure 24(a), and this court affirmed that judgment on appeal in 2010, finding the United States adequately represented SUWA's purported interest. See Kane Cty. v. United States ,
Today, however, this court reaches the opposite conclusion. I respectfully dissent. In my view, SUWA has not demonstrated a concrete injury giving it standing to pursue a claim in federal court, nor can it meet the requirements for mandatory intervention under Rule 24.
I will first address our jurisdiction and explain why I believe SUWA lacks standing to intervene, both under Article III and under the third-party standing doctrine. Then I will explain why, even if SUWA has standing, the district court applied the correct standard of review and did not err in denying intervention.
A. Jurisdiction
"Standing is a threshold issue in every case before a federal court." Phila. Indem. Ins. Co. v. Lexington Ins. Co. ,
Ensuring that every party before a federal court possesses standing is essential because of the doctrine's underpinnings in Article III of the Constitution, which confines federal courts to adjudicating "cases" and "controversies." U.S. Const. art. III, § 2, cl. 1. The doctrine also reflects "the separation-of-powers principles underlying that limitation." Lexmark Int'l, Inc. v. Static Control Components, Inc. ,
In prior cases involving SUWA, our circuit concluded that SUWA and other "parties seeking to intervene under Rule 24(a) or (b) need not establish Article III standing so long as another party with constitutional *898standing on the same side as the intervenor remains in the case." San Juan Cty. v. United States ,
The majority opinion here says SUWA seeks relief identical to the United States because the government has committed to "retention of the maximum amount of property" and will argue for "the smallest widths [it] can based on the historical evidence." See op. at 887. But this finding conflicts with the majority's later conclusion that the United States may not adequately represent SUWA's interests because "SUWA's and the United States' interests are not identical," id. at 895, with respect to the scope of Kane County's asserted rights-of-way. See also id. at 895 ("SUWA is focused on pursuing the narrowest scope [of road width], but many of the stakeholders involved may want wider roads. The Unites States represents these broad-ranging and competing interests, too."). If SUWA seeks identical relief to the United States-that is, federal retention of the maximum amount of property-then the United States provides adequate representation of SUWA's interests, as we acknowledged in Kane County I . If SUWA seeks relief different from the United States-because the government does not, in fact, wish to retain maximum property-then SUWA must demonstrate that it possess standing according to Town of Chester .
This circuit has recognized the Supreme Court's abrogation of San Juan County 's piggyback rule for intervenor standing in several published opinions, regardless of whether the remedy sought is identical. In Safe Streets Alliance , we affirmed that " Rule 24(a) 's provisions cannot remove the Article III hurdle that anyone faces when voluntarily seeking to enter a federal court."
*899Despite SUWA's assertions to the contrary, our precedent shows SUWA must demonstrate it possesses independent Article III standing to intervene in this litigation. Nevertheless, the majority opines that SUWA need not establish independent standing so long as the United States remains a party. This conclusion is, in my view, a return to the abrogated reasoning of San Juan County in violation of clear, binding precedent.
The majority goes on to say that, in any case, SUWA has established standing. Our Article III and third-party standing doctrines indicate otherwise.
1. Constitutional Standing
To establish Article III standing, an intervenor must first demonstrate "an 'injury in fact'-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defs. of Wildlife ,
An organization such as SUWA may assert associational standing if "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Collins v. Daniels ,
SUWA asserts its environmental concern is "a legally protectable interest" for purposes of Article III standing. San Juan Cty. ,
An injury-in-fact must be both concrete and particularized and actual or imminent. The asserted injury cannot merely be speculative, however. The "threatened injury must be certainly impending to constitute injury in fact" and "allegations of possible future injury are not sufficient." Clapper v. Amnesty Int'l USA ,
SUWA is correct that environmental interests, such as "the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing." Lujan ,
As was the case in Clapper , the path leading to SUWA's asserted injury is too attenuated to establish Article III standing. This chain of events relies on a patchwork of assumptions and possibilities resulting from the decisions of multiple actors, each with its own interests and institutional checks. A proposed party cannot rely on mere "speculation" that its members who have visited the relevant environmental locale "will find their recreation burdened" in the future due to an uncertain chain of events. Earth Island ,
For these reasons, I would find SUWA's alleged injury is not an imminent injury-in-fact for purposes of Article III standing.
2. Third-Party Standing
Even if SUWA could assert constitutional standing, it would lack standing under the third-party standing doctrine. "[A] party generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Kowalski v. Tesmer ,
An exception to this rule may apply when "the party asserting the right has a close relationship with the person who possesses the right [and] there is a hindrance to the possessor's ability to protect his own interests." Sessions v. Morales-Santana , --- U.S. ----,
This court previously applied the third-party standing rule to hold SUWA lacked prudential standing "to vindicate the property rights of the federal government" in a nearly identical quiet title action. Wilderness Soc'y v. Kane Cty. ,
After Wilderness Society , the Supreme Court substantially narrowed the category of prudential standing. See Lexmark ,
Because Lexmark did not eliminate the third-party standing rule, our determination in Wilderness Society remains sound. Indeed, in light of Lexmark , its logic appears even stronger in this case. The only issue on remand from the 2014 appeal is the length and width of Kane County's easements. An organization in SUWA's position does not possess a cause of action under the Quiet Title Act because it does not assert title to the roads. See 28 U.S.C. § 2409a(a), (d). The cause of action properly belongs to Kane County and Utah, because they do assert title. Even if we assume SUWA will certainly suffer environmental injury, "that doesn't necessarily demonstrate that [it] has prudential standing to bring its ... claims." VR Acquisitions, LLC v. Wasatch Cty. ,
Because SUWA's claim to relief rests "on the legal rights or interests of third parties," Kowalski ,
B. Intervention
Even if SUWA possessed standing to intervene, the district court did not abuse its discretion in determining SUWA fails to satisfy the Rule 24 requirements. Under Rule 24, an applicant may timely intervene as of right if it
claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
Fed. R. Civ. P. 24(a)(2). SUWA alleges it has an interest related to the property that may be impaired in the litigation and the United States may not adequately represent its interest.
1. Standard of Review
"We review the district court's denial of a motion for reconsideration for abuse of discretion." United States v. Randall ,
SUWA argues the district court improperly characterized its filing as a motion to reconsider, and that we should treat its motion as one to intervene. The majority agrees and proceeds to analyze the Rule 24 requirements of interest, impairment, and adequate representation de novo, relying on City of Colorado Springs v. Climax Molybdenum, Co. ,
On the contrary, successive motions for intervention in the same case are frequently treated as motions to reconsider. See, e.g. , Abeyta v. City of Albuquerque ,
This result is rooted in the law-of-the-case doctrine and the mandate rule. See Huffman v. Saul Holdings Ltd. P'ship ,
Furthermore, as the majority acknowledges, SUWA based its renewed motion for intervention on changed circumstances-namely a new legal and political landscape. See App. 119. SUWA's reliance on an intervening change of law or fact tracks the test for a motion to reconsider, not a motion to intervene. See Paraclete ,
In summary, I would apply the abuse of discretion standard to evaluate whether the district court properly denied SUWA's successive motion to intervene. That standard is more consistent with the law-of-the-case doctrine and more suitable to SUWA's changed-circumstance arguments.
2. Impaired Interest
SUWA argues intervention is proper because it has an environmental interest relating *903to wilderness lands and resources that are crossed by or adjacent to the three disputed roads. It asserts the district court erred in finding no changed circumstances under which the court should revisit its prior ruling on SUWA's impaired interest related to the roads.
This court applies a fact-specific inquiry to determine whether a proposed intervenor possesses an interest satisfying the requirements of Rule 24(a)(2) and (3). San Juan Cty. ,
We have previously said " Rule 24(a)(2) does not speak of 'an interest in the property'; rather, it requires only that the applicant for intervention 'claim[ ] an interest relating to the property or transaction which is the subject of the action." San Juan Cty. ,
Now that the issue is before us once again, I would conclude the district court reasonably determined the applicable law and issues on partial remand were the same as they were when the district court rendered its initial decision on SUWA's motion to intervene. Thus, in my view, the district court did not abuse its discretion in denying SUWA's motion to reconsider.
SUWA relies on Utah Association of Counties v. Clinton ,
Because no intervening change of fact or law with respect to SUWA's alleged interest compels a different result, the district court did not abuse its discretion in declining to reconsider SUWA's motion for intervention. The district court's decision does not prevent SUWA from presenting its environmental concerns as amicus, nor does it preclude SUWA from asserting its alleged interests through other lawsuits or administrative challenges to federal use or management of lands adjoining the road easements.
3. Adequate Representation
We presume adequate representation "when the objective of the applicant for intervention is identical to that of one of the parties." San Juan Cty. ,
The last time this court considered SUWA's motion to intervene in this litigation, it held SUWA had failed to carry its minimal burden of demonstrating inadequate representation. We observed that "SUWA's disagreement with the United States' land management decisions in the past does not demonstrate that the United States is an inadequate representative in this title dispute, which is ultimately grounded in non-federal activities that predate those management decisions." Kane Cty. I ,
SUWA emphasizes two circumstances it says have changed since the courts last considered its motion to intervene: (1) the change in presidential administration, and (2) the length and width of the three rights-of-way is now squarely presented to *905the district court and may be settled by the parties.
With respect to the first circumstance, SUWA extensively relates how the current presidential administration and BLM's approach to wilderness protection differs from that of their predecessors and explains the adversarial relations between itself and the new administration. This argument is nearly identical, as the government points out, to the argument SUWA raised and we rejected in the previous appeal-namely, that SUWA's "history of adversarial relations between itself and [federal defendants]" is inconsistent with adequate representation.
Moreover, SUWA's perceived disagreements with the current presidential administration or BLM over land-management policy bears little relation to how the United States will defend title to the roads themselves.
With respect to the second circumstance, we recognized in Kane County I that SUWA waived the argument that it might disagree with the United States about the length or width of Kane County's rights-of-way.
SUWA's speculation that the United States will be less than zealous to defend its title cannot explain (1) why the United States has not settled this case two years into the new presidential administration, *906(2) why the parties did not request further stays to continue negotiation after the stay expired last year, or (3) why extensive discovery and depositions have continued in other pending road disputes between the parties. Nor can the majority opinion explain these present circumstances.
In my view, the district court did not abuse its discretion in concluding that SUWA's position was based on speculation and "unsupported by any evidence other than statements by the parties [in 2017] that settlement might be possible." Kane Cty. v. United States , No. 2:08-CV-315-CW,
* * * *
Because I believe SUWA lacks standing to intervene and because the district court did not abuse its discretion in denying SUWA's motion to intervene under Rule 24(a), I respectfully DISSENT.
Perhaps the tension in the majority opinion might dissipate if this were a case in which the government had to balance various private and public interests. But because a Quiet Title Act suit is not such a dispute, the situation here is unlike Pennsylvania v. President United States of America ,
In Wilderness Society , SUWA relied on an implied cause of action under the Supremacy Clause of the Constitution-a cause of action which is no longer recognized, see Armstrong v. Exceptional Child Ctr., Inc. , --- U.S. ----,
Third-party standing has been traditionally considered as falling within the realm of "prudential standing." See Elk Grove Unified Sch. Dist. v. Newdow ,
Six judges disagreed. They explained in two separate concurrences that there "can be no logical or causal connection between the interest in land use asserted by SUWA and the dispute over land ownership in this case; a mere change in ownership will have no practical effect on the land's use, just as a change in the land's use would not affect the ownership" of the roads. San Juan Cty. ,
By statute, national monuments and wilderness study areas are expressly "subject to valid existing rights." Pub. L. No. 94-579, § 701(h),
Insofar as the administration's land-management policies have excluded parts of the relevant roads from the Grand Staircase-Escalante National Monument, those policies can be and have been challenged through the APA See, e.g. , City of Carmel-By-The-Sea v. U.S. Dep't of Transp. ,
Opinion of the Court
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
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 ,
Seven months after Kane County filed its complaint, SUWA
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 ,
We raised the possibility of looking beyond the binary title determination to address the "potential scope of Kane County's purported rights-of-way."
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,
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. ,
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 ,
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 *88510 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 ,
After remand, the case slowed until September 2017, when the district court entered an order directing the parties to file briefs on the effect of our ruling. Ten days later, the parties jointly moved for a four-month stay, stating that they had begun settlement discussions and were "optimistic" that they could "reach agreement regarding the effect of [our] decision" and resolve the remaining issues. Appellant's App. at 38, 110-11. Three days later, the district court granted the motion.
Though SUWA styled its 2017 motion as a "Motion to Intervene," the district court treated it as a motion to reconsider its denial of SUWA's 2009 motion to intervene.
*886In deciding the motion, the district court assumed for purposes of argument that the motion was timely, but still denied it on grounds that SUWA had presented nothing to undermine the court's earlier determination that the United States was adequately representing SUWA's interest. In doing so, the district court relied on three bases.
First, rejecting SUWA's argument to the contrary, the district court ruled that determining title necessarily includes determining the scope of the rights-of-way. The district court reasoned that "scope is inherent in the quiet title process because as a practical matter the court cannot quiet title to an undefined property." Kane Cty., Utah v. United States , No. 2:08-CV-315,
DISCUSSION
SUWA argues that the district court erred by denying its second motion to intervene. Kane County, the State of Utah, and the United States ("the Appellees") have each filed response briefs in support of the district court's order. Before considering the merits of their arguments, we must consider Kane County's argument that SUWA lacks Article III standing.
I. Standing
To seek relief in federal court, a party must show constitutional standing. Bennett v. Spear ,
In San Juan Cty., Utah v. United States , another R.S. 2477 case involving SUWA, a majority
But ten years later, the Supreme Court modified our "piggyback standing" rule, holding that an intervenor as of right must "meet the requirements of Article III if the intervenor wishes to pursue relief not requested" by an existing party. Town of Chester, N.Y. v. Laroe Estates, Inc. , --- U.S. ----,
Citing Town of Chester ,
*888Moreover, even if SUWA needed to establish its own independent standing, it has done so. Article III standing requires a litigant to show: (1) an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury can likely be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. ,
Here, as in San Juan County , it is "indisputable that SUWA's environmental concern is a legally protectable interest." See
Under this standard, we conclude that SUWA has established an imminent injury. Kane County and the State of Utah seek to double the width of Swallow Park and North Swag roads, which are both dirt roads, and to more than double the width of Skutumpah Road. Wider roads will likely require realignments or improvements, such as grading or paving. See generally , Hodel ,
Nor is such an injury speculative. An injury may be imminent even though contingent upon an unfavorable outcome in litigation. See Protocols, LLC v. Leavitt ,
II. Standard of Review
Under Rule 24(a)(2) of the Federal Rules of Civil Procedure, a nonparty seeking to intervene as of right must establish (1) timeliness, (2) an interest relating to the property or transaction that is the subject of the action, (3) the potential impairment of that interest, and (4) inadequate representation by existing parties. W. Energy All. v. Zinke ,
SUWA filed its second motion to intervene nine years after filing its first.
We agree with SUWA. Though our court has never determined what standard of review applies to a successive motion to intervene, we conclude that de novo review is more appropriate when, as here, a proposed intervenor shows that circumstances have changed between the two motions to intervene.
In City of Colorado Springs v. Climax Molybdenum Co. , a movant had filed three motions to intervene over a nearly-fifty-year span.
*890In addition, other cases in our circuit point us to de novo review here. In San Juan County , seven judges acknowledged that case developments can alter the intervention calculus. In the lead opinion, Judge Hartz, joined by two other judges, stated that the "denial [of a motion to intervene] does not forever foreclose" intervention and that "the matter may be revisited" if "developments after the original application for intervention undermine" the basis for the initial denial. San Juan Cty. ,
III. SUWA is entitled to intervene as of right.
As previously noted, to intervene as of right SUWA must establish that (1) the application is timely; (2) it claims an interest relating to the property or transaction which is the subject of the action; (3) the interest may as a practical matter be impaired or impeded; and (4) the interest may not be adequately represented by existing parties. Zinke ,
A. SUWA's motion is timely.
Kane County argues that SUWA's motion is untimely. "The timeliness of a motion to intervene is assessed 'in light of all the circumstances, including *891the length of time since the applicant knew of his interest in the case, prejudice to the existing parties, prejudice to the applicant, and the existence of any unusual circumstances.' " Utah Ass'n of Ctys. ,
Reviewing de novo,
B. SUWA possesses an interest that may be impaired by the litigation.
To meet the interest requirement, an applicant "must have an interest that could be adversely affected by the litigation." San Juan Cty. ,
In San Juan County , we concluded that it was "indisputable that SUWA's environmental concern is a legally protectable interest."
First, as mentioned previously, we view the difference in impacts between opening closed roads and widening already-opened roads as one of degree. Wider roads attract more traffic, which would impair SUWA's interest in preservation and enjoyment of the surrounding land. Second, a majority of our court recognized in San Juan County that although "SUWA d[id] not claim that it ha[d] title" to the disputed right-of-way, Rule 24(a)(2) "requires only that the applicant for intervention 'claim an interest relating to the property or transaction which is the subject of the action.' "
C. The United States may not adequately represent SUWA's interest.
Next, SUWA must show that existing parties may not adequately represent its interest. This burden is "minimal," and "it is enough to show that the representation 'may be' inadequate." Nat. Res. Def. Council v. U.S. Nuclear Regulatory Comm'n ,
When a would-be intervenor's and the representative party's interests are "identical," we presume adequate representation. Bottoms v. Dresser Indus., Inc. ,
Illustrative is WildEarth Guardians v. United States Forest Service , a case in which we allowed a coal company to intervene over an environmental group's opposition.
*893
Here, the parties agree that the only remaining issue in the district court is the scope of three roads. In deciding scope, the district court must determine whether it is reasonable and necessary to widen the roads to "meet the exigencies of increased travel ... in the light of traditional uses to which the right-of-way was put." Kane Cty. II ,
Relying on the above cases, SUWA first argues that its interests are not identical to those of the United States. In that circumstance, we do not apply a presumption of adequate representation. More specifically, SUWA points to the broader interests the United States must consider beyond seeking the narrowest scope of the rights-of-way.
In addition, as it did in the district court, SUWA argues that unlike a title determination, the scope issues in the district court are not a binary choice. Indeed, the title issues-Kane County's and the State of Utah's rights-of-way-are now established, and not contested on appeal. Instead, the intervenors seek to participate in the limited issue on which we remanded-the scope of the three remaining roads. In contrast, the Appellees contend that the United States' interests are identical to SUWA's, arguing that this is merely a "case about title," and that the United States' only interest is to advocate for the narrowest scope of the roads. United States' Resp. Br. at 13-14, 17-19, 21, 31, 38; State of Utah's Resp. Br. at 12-16. We agree with SUWA.
In San Juan County , four judges expressly viewed title and scope as separate determinations, observing that the question of title is a "binary" determination, while scope is much more "nuanced."
We agree with the district court that "scope is inherent in the quiet title process." Kane Cty. ,
For a proposed intervenor to establish inadequate representation by a representative party, "the possibility of divergence of interest need not be great," Nat. Res. Def. Council ,
*895Utahns for Better Transp. v. U.S. Dep't of Transp. ,
SUWA is focused on pursuing the narrowest scope, but many of the stakeholders involved may want wider roads. The United States represents these broad-ranging and competing interests, too. See San Juan Cty. ,
In addition to the public interest, the United States must consider internal interests, such as the efficient administration of its own litigation resources. When pressed at oral argument about whether it was seeking a reviewable judicial order in this case, the United States responded that it "ha[s] 12,000 of these claims statewide" and is "interested in trying to resolve them as quickly and efficiently as [it] can," see Oral Argument at 24:30, an interest that SUWA certainly doesn't share.
Given these conflicting interests, we conclude that SUWA's and the United States' interests are not identical. See Utah Ass'n of Ctys. ,
Moreover, even if such a presumption were to apply, we would conclude that SUWA has rebutted it. Our court has recognized that a "change in [presidential a]dministration raises 'the possibility of divergence of interest' or a 'shift' during litigation." Zinke ,
Significantly, although SUWA will not be entitled to veto any settlement agreement between the United States and the plaintiffs, see Local No. 93, Int'l Ass'n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland ,
In conclusion, given our court's "relaxed" intervention requirements in "cases raising significant public interests" such as this one, see San Juan Cty. ,
CONCLUSION
Consistent with this opinion, we reverse the district court's denial of SUWA's motion to intervene.
SUWA is a member-based nonprofit dedicated to preserving the wilderness of the Colorado Plateau. The Wilderness Society and the Sierra Club both joined SUWA's motion to intervene.
The district court allowed SUWA to participate as amicus in a limited capacity. The court denied SUWA's request to address the court during trial, but did accept three of its post-trial briefs (though it limited SUWA to those briefs). And in one of its post-trial memorandum decisions, the district court considered SUWA's jurisdictional arguments. See Kane Cty., Utah v. United States ,
Though not at issue here, we also reversed the district court's finding of subject-matter jurisdiction to resolve title over six of the roads,
We have distinguished between "routine maintenance, which does not require consultation with the BLM," and "construction of improvements, which does." S. Utah Wilderness All. v. Bureau of Land Mgmt. ,
Kane County and the State of Utah each unsuccessfully petitioned the United States Supreme Court for a writ of certiorari. Kane Cty., Utah v. United States , --- U.S. ----,
On January 2, 2018, the parties jointly requested and were granted an additional stay of 31 days. The day the second stay expired, Kane County filed a "Supplemental Brief and Request for Further Findings of Fact and Conclusions of Law," asking the court to conduct an additional site inspection. The United States responded, agreeing that further factfinding was necessary, but asserting that the existing record could be supplemented by lay and expert testimony without a second site visit.
See Presidential Proclamation Modifying the Grand Staircase-Escalante National Monument,
The Wilderness Society joined the second intervention motion, but the Sierra Club did not.
The Appellees make no prudential-standing arguments.
Unless we indicate otherwise, every citation to San Juan County refers to a portion of Judge Hartz's lead opinion that received seven votes.
The dissent cites Safe Streets Alliance v. Hickenlooper ,
Town of Chester involved a plaintiff-side intervenor, but we see no reason not to apply that rule to defendant-side intervenors as well. See Pennsylvania v. President United States of Am. ,
Contrary to the dissent's view, see Dissenting Op. at 898, the interests of the United States and SUWA are not necessarily identical under Rule 24(a)(2) just because they pursue the same form of relief for piggyback standing under Town of Chester . See e.g. , Coal. of Ariz./N.M. Ctys. for Stable Econ. Growth v. Dep't of Interior ,
Though this portion of the opinion concerned the potential impairment of SUWA's interests under Rule 24(a)(2), other courts have recognized that "any person who satisfies Rule 24(a) will also meet Article III's standing requirement." Roeder v. Islamic Republic of Iran ,
Kane County represents that this is SUWA's "fifth attempt" to intervene in this case. See Kane Cty.'s Resp. Br. at 1. To reach this figure, Kane County includes SUWA's appeal of the 2008 denial, SUWA's attempt to intervene in the Kane County II appeal, and SUWA's current appeal. We reject such a broad characterization.
We note that the dissent's cited cases on this point, Abeyta v. City of Albuquerque ,
We discuss these developments later in Part III.C addressing adequate representation. In short, we consider a district court's moving from the binary title question to the more nuanced scope question as a qualifying development, as well as the change in presidential administration and its recent efforts to settle. See Zinke ,
Indeed, during oral argument in Kane County I , the panel explored whether SUWA's interests might not arise until after title had been decided in favor of Kane County or the State of Utah.
We review the timeliness prong de novo because the district court made no timeliness findings. See Utah Ass'n of Ctys. ,
Though our court used to require an interest to be "direct, substantial, and legally protectable," we abandoned that test in San Juan County , finding it "problematic."
Neither Judge Kelly's nor Judge McConnell's concurrence takes a position on the question of scope.
The Appellees argue that SUWA waived this argument, citing to our decision in Kane County I . But we merely deemed the argument waived "for purposes of th[at] appeal." Kane Cty. I ,
An order approving a settlement agreement would be reviewable only for an abuse of discretion. United States v. Hardage ,
SUWA cites a State of Utah attorney's testimony before a legislative committee in 2014, stating that "the federal government has taken the position that the only way we get an R.S. 2477 road is if a court orders it." See Utah State Legislature, Meeting of the Natural Resources, Agricultural, and Environmental Quality Appropriations Subcommittee, Public Lands Office: RS 2477 Efforts and Results (Sept. 18, 2014), available at http://utahlegislature.granicus.com/MediaPlayer.php?view_id=2&clip_id=17764. Consistent with this testimony, SUWA also cites a memo from a regional BLM director to the Acting BLM Solicitor, which states that although settlement negotiations with the previous administration had "broke[n] down," the parties agreed in April 2017 "to begin a dialogue to explore potential resolutions to the R.S. 2477 issue[s in Utah] under th[e new] administration." Appellant's App. vol. 1 at 133-34, 292-93.
SUWA also argues that the administration's decision to reduce by half the Grand Staircase-Escalante National Monument presents a basis to disbelieve that the United States will, in fact, fight for the narrowest scope of the roads. As SUWA sees it, if the administration is willing to rescind protections of a vast expanse of land in the same area as the roads at issue, one could reasonably infer that it may not vigorously fight for the smallest scope of the roads. Because we find that SUWA has met its burden without this evidence, we need not address this argument.
Reference
- Full Case Name
- 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.
- Cited By
- 79 cases
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- Published