Appellate Case: 22-4087   Document: 010111008938   Date Filed: 03/04/2024   Page: 1
                                                                          FILED
                                                                   United States Court of
                                    PUBLISH                            Appeals
                                                                       Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                      March 4, 2024
                         FOR THE TENTH CIRCUIT                    Christopher M. Wolpert
                     _________________________________                Clerk of Court

  KANE COUNTY, UTAH,

         Plaintiff - Appellee,

  STATE OF UTAH,

         Intervenor Plaintiff - Appellee,

  v.                                                   No. 22-4087

  UNITED STATES OF AMERICA,

         Defendant - Appellee,

  and

  SOUTHERN UTAH WILDERNESS
  ALLIANCE; SIERRA CLUB; THE
  WILDERNESS SOCIETY; GRAND
  CANYON TRUST,

         Movants - Appellants.
                    _________________________________

                  Appeal from the United States District Court
                            for the District of Utah
                         (D.C. No. 2:10-CV-01073-CW)
                    _________________________________

 Kathleen R. Hartnett, Cooley LLP, San Francisco, California (Stephen H.M.
 Bloch and Michelle White, Southern Utah Wilderness Alliance, Salt Lake City
 Utah; John C. Dwyer and Tijana Brien, Cooley LLP, Palo Alto, California;
 Lauren Pomeroy, Cooley LLP, San Francisco, California; and Trevor J. Lee and
 Mitch M. Longson, Manning Curtis Bradshaw & Bednar PLLC, Salt Lake City,
 Utah, with her on the briefs), for Movants-Appellants.
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 John E. Bies, United States Department of Justice, Environmental & Natural
 Resources Division (Todd Kim, Assistant Attorney General, with him on the
 brief), Washington, D.C., for Defendant-Appellee United States of America.

 Shawn T. Welch, Holland & Hart LLP (Michelle Quist, 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 K. Tess Davis, Assistant Attorneys General, Salt Lake City, Utah,
 on the brief for the Intervenor Plaintiff-Appellee The State of Utah.
                      _________________________________

 Before PHILLIPS, KELLY, and ROSSMAN, Circuit Judges.
                  _________________________________

 PHILLIPS, Circuit Judge.
                   _________________________________

       We are called on again to review an order denying a motion to intervene

 as of right in the Kane County litigation. Most recently, in a 2019 appeal

 involving the same parties raising the same issues and interests—but different

 alleged rights-of-way—we concluded that Southern Utah Wilderness Alliance

 (SUWA) (1) had Article III standing and (2) was entitled to intervene as of

 right under Rule 24(a)(2) of the Federal Rules of Civil Procedure. Kane Cnty. v.

 United States (Kane III), 

 (2019), cert. denied, 

, 1284 (2021). Because there is no material distinction between this case

 and Kane III, we reverse the district court’s denial of SUWA’s motion to

 intervene on the issue of scope and remand for further proceedings consistent

 with this opinion.




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                                 BACKGROUND

       This appeal comes to us amid years of litigation between Kane County,

 Utah and the United States under the Quiet Title Act, 28 U.S.C. § 2409a. The

 Act 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, 

 (1983). During the past fifteen-plus years,

 Kane County has filed multiple lawsuits seeking to quiet title to hundreds of

 alleged rights-of-way crossing federal land in Kane County, Utah. The suits

 rely on Section 8 of the Mining Act of 1866, more commonly known as Revised

 Statute (R.S.) 2477.

       In enacting R.S. 2477 in 1866, Congress codified “a standing offer of a

 free right of way” over public lands not already “reserved for public uses.”

 Lindsay Land & Live Stock Co. v. Churnos, 

 (Utah 1929)

 (cleaned up). 1 But on October 21, 1976, “Congress enacted the Federal Land

 Policy and Management Act, which repealed R.S. 2477, but preserved already-

 existing rights-of-way.” Kane III, 

 (citing 

(a)).

 Congress’ repeal of R.S. 2477 “had the effect of ‘freezing’” rights-of-way in

 existence before October 21, 1976. Kane Cnty. v. United States (Kane II), 772



       1
         As we have previously noted, “[a] right of way is not tantamount to fee
 simple ownership of a defined parcel of territory. Rather, it is an entitlement to
 use certain land in a particular way.” S. Utah Wilderness All. v. Bureau of Land
 Mgmt. (SUWA v. BLM), 

 (10th Cir. 2005).

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 (10th Cir. 2014) (quoting S. Utah Wilderness All. v. Bureau of

 Land Mgmt. (SUWA v. BLM), 

 (10th Cir. 2005)), cert. denied,

 

 (2015).

       In 2008, Kane County filed its first quiet-title action (Kane (1)) seeking

 to quiet title to fifteen alleged R.S. 2477 rights-of-way. Then, in 2010, while

 Kane (1) was proceeding, Kane County, later joined by the State of Utah as an

 intervenor (collectively, “Kane County”), filed this action (Kane (2)) seeking to

 quiet title to sixty-four more rights-of-way. 2 In 2011, and again in 2012, Kane

 County and the State of Utah filed two more actions (styled as Kane (3) and

 Kane (4)), claiming title to 711 more rights-of-way. The district court

 consolidated Kane (3) and Kane (4) with Kane (2). See generally Kane Cnty.

 (2), (3), & (4) v. United States (Kane (2)), 

 (D. Utah

 2022). Like the parties, we refer to these consolidated cases as Kane (2).

 Though Kane (2) involves claims to different alleged R.S. 2477 rights-of-way

 than those in Kane (1), the legal issues, parties, state, county, and the presiding

 district court judge are the same.




       2
         In December 2011, the district court granted the State of Utah’s motion
 to intervene as plaintiff in support of Kane County’s claims based, in part, on
 the United States’ concession that the State of Utah met Rule 24(a)(2)’s
 requirements.

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       In Kane (1), SUWA 3 moved to intervene as of right as a defendant in

 support of the United States under Rule 24(a)(2) of the Federal Rules of Civil

 Procedure. 4 On March 6, 2020, we issued the mandate in Kane III directing the

 district court to grant SUWA’s motion to intervene as of right in the remand

 proceedings in Kane (1), where the one remaining issue was the scope of three

 of Kane County’s R.S. 2477 rights-of-way. See Kane III, 

,

 884–85.

       In Kane (2), relying on our ruling in Kane III, SUWA moved to intervene

 as of right. Two years later, the district court denied this intervention motion,

 remarking that Kane III did not grant SUWA a “per se right to intervene in R.S.

 2477 cases” and that the intervention motion before it in Kane (2) was

 “distinguishable” from the intervention motion in Kane (1). Kane (2), 606 F.

 Supp. 3d at 1142.

       SUWA now appeals, asking us to determine whether, based on Kane III—

 which allowed SUWA to intervene in Kane (1)—the district court erred in

 denying its motion to intervene in Kane (2).


       3
         SUWA is a member-based nonprofit dedicated to preserving the
 wilderness of the Colorado Plateau. In Kane (2), The Wilderness Society, Sierra
 Club, and Grand Canyon Trust have joined SUWA’s motions to intervene. We
 refer to these parties collectively as “SUWA.”
       4
         “[W]hen a party intervenes [under Rule 24(a)(2)], it becomes a full
 participant in the lawsuit and is treated just as if it were an original party.”
 Alvarado v. J.C. Penney Co., 

 (10th Cir. 1993) (citation
 omitted).

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       We begin by retracing the history of Kane (1) to put the present appeal in

 context. 5

 I.    SUWA’s Intervention as of Right in Kane (1)

       In 2008, seven months after Kane County filed its complaint in Kane (1),

 SUWA moved to intervene as of right as a defendant in the action under

 Rule 24(a)(2). Rule 24(a)(2) requires that “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.” Kane III,

 

 (citing Fed. R. Civ. P. 24(a)(2)).

       The district court denied SUWA’s motion. Addressing Rule 24(a)(2)’s

 interest prong, the court concluded that SUWA lacked a legal interest relating

 to the asserted rights-of-way. Kane Cnty. (1) v. United States, No. 08-cv-00315,

 

, at *2 (D. Utah Apr. 6, 2009). This conclusion rested on the

 court’s view that “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 the roads.” 

 Next, addressing the adequate-representation prong, the



       5
         From the 2008 lawsuit now styled as Kane (1), this court has issued
 three published opinions: in 2010, 2014, and 2019. All three opinions are part
 of Kane (1), as each appeal addressed an issue arising from that lawsuit. The
 instant appeal arises from Kane County’s later litigation: Kane (2). Though
 Kane (2) is a separate case, our decision in Kane (1) governs the analysis in
 this appeal too, because both lawsuits involve R.S. 2477 claims by Kane
 County to quiet title against the United States in Kane County, Utah.
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 court concluded that even if SUWA did have a legal interest relating to the

 asserted rights-of-way, it had failed to show that the United States would not

 “vigorously defend” its own claim “to legitimate title to the roads.” Id. at *3.

 SUWA appealed.

       A.     Kane I

       We affirmed the district court’s denial of SUWA’s motion to intervene as

 of right on the R.S. 2477 title issue. Kane Cnty. v. United States (Kane I), 

 (10th Cir. 2010). We agreed with the district court’s

 determination that “even assuming SUWA has an interest in the quiet title

 proceedings at issue, SUWA . . . failed to establish that the United States may

 not adequately represent SUWA’s interest.” 

 But during oral argument, the

 court questioned SUWA’s counsel about whether the adequacy-of-

 representation result might be different on the issue of scope. 

.

 Ultimately, we treated that issue as waived “for purposes of th[e] appeal.” 

 In affirming, we noted that SUWA had “failed to establish, at this stage of the

 litigation, that the federal government will not adequately protect its interest.”

 

 (emphasis added).

       Soon after we decided Kane I, the district court granted the State of

 Utah’s motion to intervene as of right as a plaintiff under Rule 24(a)(2). The

 next year, the district court held a bench trial on the disputed rights-of-way.

 After post-trial briefing—in which SUWA participated in a limited capacity as

 amicus curiae—the district court quieted title to Kane County and the State of

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 Utah on twelve of the fifteen alleged rights-of-way. The court also decided the

 scope of those twelve rights-of-way. The United States and Kane County

 (joined by the State of Utah) filed separate appeals, bringing the case before us

 again.

          B.    Kane II

          As pertinent here, we reversed the district court’s scope determination for

 three of the rights-of-way. Kane II, 772 F.3d at 1223–25. We did so (1) because

 the district court had determined the scope of the three rights-of-way without

 considering their respective uses before 1976, and (2) because the court’s

 decision allowed “room for unspecified future improvements.” 

 We

 remanded for the district court to redetermine the scope of those three rights-

 of-way “in light of the pre-1976 uses.” 

.

          On remand, SUWA again moved to intervene to participate in

 proceedings on the sole outstanding issue: the scope of three of Kane County’s

 rights-of-way. The district court again denied SUWA’s motion. SUWA timely

 appealed.

          C.    Kane III

          We reversed the district court’s intervention ruling. Kane III, 

. Reviewing de novo, we concluded that SUWA had standing to intervene as

 a party defendant. 

 at 889–90. Next, we determined that SUWA had met all

 requirements to intervene as of right under Rule 24(a)(2): (1) that SUWA’s

 application was timely; (2) that SUWA had an interest relating to the property

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 or transaction which is the subject of the action; (3) that SUWA’s interest may

 as a practical matter be impaired or impeded by the litigation; and (4) that

 SUWA’s interest may not be adequately represented by the United States. See

 

 at 890–96.

       In analyzing the adequate-representation prong—the focus of the appeal

 now before us—we concluded that “SUWA’s and the United States’ interests

 are not identical” on the issue of scope, and therefore that “no presumption of

 adequate representation applies.” 

; see 

 (“When a would-be

 intervenor’s and the representative party’s interests are ‘identical,’ we presume

 adequate representation.”) (quoting Bottoms v. Dresser Indus., Inc., 

 (10th Cir. 1986)).

       We described SUWA’s interest in the scope determination as being “to

 limit as much as possible the number of vehicles on the roads.” 

. We

 contrasted that with the United States’ representing “multiple interests,”

 including “competing policy, economic, political, legal, and environmental

 factors.” 

 (quoting San Juan Cnty. v. United States, 

 (10th Cir. 2007) (Ebel, J., concurring in part, and dissenting in part)). 6 We


       6
        In San Juan County, seven of thirteen members of the en banc court
 addressed the issue of adequate representation. Of those seven, three joined
 Judge Ebel’s opinion. In Kane III, this court adopted the reasoning in Judge
 Ebel’s opinion. See 

 (“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 now adopt this reasoning.” (citation omitted)).

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  summarized it this way: though “SUWA is focused on pursuing the narrowest

  scope, . . . many of the stakeholders involved may want wider roads,” and the

  United States represents these “competing interests.” 

. So even if the

  United States was advocating “as well as can be expected” for the narrowest

  scope of the rights-of-way, we concluded that its representation of such “broad-

  ranging and competing interests” rendered its representation of SUWA’s

  interests inadequate. Id.; see Utahns for Better Transp. v. U.S. Dep’t of

  Transp., 

 (10th Cir. 2002) (“We have repeatedly pointed

  out that . . . the government’s prospective task of protecting not only the

  interest of the public but also the private interest of the petitioners in

  intervention is on its face impossible and creates the kind of conflict that

  satisfies the minimal burden of showing inadequacy of representation.”

  (cleaned up)).

        “In addition to the public interest,” we observed that “the United States

  must consider internal interests, such as the efficient administration of its own

  litigation resources” in resolving the “12,000 R.S. 2477 claims” it is defending

  in Utah “‘as quickly and efficiently as it can,’ an interest that SUWA certainly

  doesn’t share.” Id. at 895 (emphasis added) (cleaned up) (quoting counsel for

  the United States at Oral Argument at 24:30). 7 We reinforced this rationale by


        7
          “When pressed at oral argument” in Kane III “about whether [the
  United States] was seeking a reviewable judicial order in th[at] case, the United
  States responded that it ‘has 12,000 of these claims statewide’ and is
                                                               (footnote continued)
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  pointing to the United States’ opposition to SUWA’s intervention motion. Id.

  (citing San Juan Cnty., 

 (Ebel, J., concurring in part, and

  dissenting in part) (“[T]he fact that the United States has opposed SUWA’s

  intervention in this action suggests that the United States does not intend fully

  to represent SUWA’s interests.”); WildEarth Guardians v. U.S. Forest Serv.,

  

 (10th Cir. 2009) (finding inadequate representation, in part,

  because the representative party, while taking no position on intervention,

  objected to the idea that it be required to “coordinate filings with” the

  intervenor); Utah Ass’n of Cntys. v. Clinton, 

 (10th Cir.

  2001) (“The government has taken no position on the motion to intervene in

  this case. Its silence on any intent to defend the intervenors’ special interests is

  deafening.” (cleaned up)). 8




  ‘interested in trying to resolve them as quickly and efficiently as it can.’”
  

 (cleaned up). This interest, we observed, was “an interest that
  SUWA certainly doesn’t share.” 

        8
          Alternatively, we decided that “even if” SUWA and the United States
  had identical interests in the scope determination—meaning a presumption of
  adequate representation would apply—SUWA would have rebutted the
  presumption. Kane III, 928 F.3d at 895–96. The United States’ sudden
  inclination to engage in settlement negotiations in Kane (1) after the
  inauguration of a new presidential administration—though the case had
  proceeded on remand for two-and-a-half years—signified to us that SUWA’s
  interests and the United States’ interests had possibly diverged. 

 Because
  Presidential administrations have changed in the years since then, SUWA’s
  argument on this point is gone, and it has no place in the present appeal.

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        “[G]iven our court’s relaxed intervention requirements in cases raising

  significant public interests such as this one, and our liberal approach to

  intervention,” we held that “SUWA ha[d] satisfied its minimal burden of

  showing that the United States may not adequately represent its interests.” 

  at 896–97 (cleaned up). Accordingly, we reversed the district court’s denial of

  SUWA’s motion to intervene. 

. As a result of our ruling, SUWA is

  now participating as a party in the district court remand proceedings in

  Kane (1). 9

  II.   SUWA’s Intervention Attempts in Kane (2)

        In Kane (2), SUWA has four times sought to intervene as of right as a

  defendant in support of the United States. 10 Though for context we briefly

  review each of SUWA’s motions below, the present appeal concerns just the

  denial of SUWA’s fourth motion to intervene.

        The first denial. On September 10, 2014, the district court denied

  SUWA’s first motion to intervene as of right in Kane (2), but granted SUWA

  permissive intervention subject to certain limitations on its participation in


        9
          At oral argument in this appeal, SUWA confirmed that it is now
  participating in remand proceedings in Kane (1) as an intervenor of right—
  calling experts and witnesses and submitting briefing. See Oral Argument at
  2:00–2:35.
        10
          Kane County represents that this is SUWA’s “fifth attempt” to
  intervene in this case. See K.C. Br. at 7. To reach this figure, Kane County
  counts SUWA’s near identical motions that it filed on two different dockets a
  few days after those dockets had been consolidated.

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  discovery, claims and defenses, motions, settlement negotiations, and trial. 11

  One such limitation was that SUWA could not file any motion without the

  district court’s permission. Thus, SUWA filed each motion discussed below

  after first obtaining the court’s permission.

        The second denial. On May 25, 2018, SUWA filed its second motion to

  intervene as of right. SUWA argued that “[g]ood cause now exists to revisit the

  [2014] Intervention Order.” App. vol. II, at 535. In support, SUWA relied on

  “the change in the Presidential Administration.” 

 SUWA asserted that this

  change had “resulted in a fundamental transformation in land policy that has

  placed the United States at best beholden to a diversity of new interests, if not

  entirely at odds with SUWA.” 

 Denying SUWA’s second motion, the district

  court ruled that “no change to SUWA’s intervention status is warranted,”

  because “SUWA’s arguments that the United States no longer represents its

  interests are unavailing.” App. vol. IV, at 1150.

        The third denial. On July 10, 2019, after we issued the order in Kane III,

  SUWA filed its third motion to intervene. This time, SUWA argued that “in a

  related case, the Tenth Circuit recently held that the Court’s conclusions about

  SUWA’s interests were incorrect and SUWA is legally entitled to intervention

  as of right.” App. vol. VI, at 1553. Ultimately, the district court denied


        11
           Whether to grant permissive intervention under Rule 24(b) “lies within
  the discretion of the district court,” and allows parties to participate in the
  litigation, subject to limitations imposed by the district court. Kane I, 

.
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  SUWA’s motion, reasoning, in part, that it was not bound by the Kane III

  decision because the mandate in that case had not yet issued due to pending en

  banc petitions. Kane Cnty. (2), (3), & (4) v. United States, 

,

  243–44 (D. Utah 2019).

        SUWA then sought a writ of mandamus from this court, asking us to

  review the district court’s denial of its third intervention motion and to reassign

  the ongoing R.S. 2477 cases to a different district court judge. In deciding

  SUWA’s request, we noted that the district court had stated that “[w]hen the

  mandate on [Kane III] ultimately issues, the court will respect the ruling.” App.

  vol. VII, at 1885. And so in our view, the only error that SUWA had shown was

  that the district court “at most” had “erred as a matter of law in holding that the

  district court is not bound, pre-mandate, to apply Kane [III] in the other

  pending R.S. 2477 cases.” Id. at 1889. Because “such an error would not

  constitute ‘the egregious error necessary for the court to issue a writ of

  mandamus,’” we denied SUWA’s requested relief. Id. (citations omitted).

        In February 2020, in Kane (2), the district court held a three-week

  bellwether bench trial on fifteen of the 775 claimed rights-of-way.

        The fourth denial. This brings us to SUWA’s present appeal of the denial

  of its fourth motion to intervene. Four days after we issued the mandate in

  Kane III, SUWA sought the district court’s permission to file a motion to

  intervene as of right. The district court ordered expedited briefing on SUWA’s

  request, and on March 16, 2020, the court entered an order allowing SUWA to

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  file its intervention motion. On April 6, 2020, SUWA filed its motion asserting

  that it was entitled to intervene as of right on the issues of title and scope

  because (1) the district court must apply Kane III, (2) SUWA has an interest

  that may be impaired by the litigation, and (3) the United States does not

  adequately represent SUWA’s interests. Both Kane County and the United

  States opposed SUWA’s motion.

        More than two years later, the district court issued an order, once again

  denying SUWA’s motion to intervene as of right on the issues of title and

  scope. Kane (2), 606 F. Supp. 3d at 1142. The district court began by

  acknowledging that, under Kane III, SUWA had both piggyback and Article III

  standing. Id. at 1142–45; see Kane III, 928 F.3d at 886–89. And though Kane

  County then (for the first time) asserted that “SUWA lack[ed] prudential

  standing,” the court declared that it is “unclear . . . what the interplay is

  between piggyback standing and prudential standing,” and it declined to resolve

  the prudential-standing issue. 12 Kane (2), 606 F. Supp. 3d at 1145; see also

  Kane III, 

 n.9 (noting that neither Kane County nor the United

  States challenged SUWA’s prudential standing). Turning to the intervention

  requirements under Rule 24(a)(2), the court relied on Kane III and San Juan

  County in ruling that SUWA had shown a Rule 24(a)(2) interest in the case.


        12
          On appeal, Kane County challenges SUWA’s prudential standing, but it
  does not contend that prudential standing is required to intervene under Rule
  24(a)(2). See K.C. Br. at 39–41. So we do not consider that issue further.

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  606 F. Supp. 3d at 1152. 13 But because the court determined that SUWA’s

  interests were “adequately represented by the United States,” it denied

  SUWA’s motion on the adequate-representation prong. Id. at 1153–54.

        At SUWA’s request, the district court certified an interlocutory appeal

  under 

(b) to enable SUWA to challenge its denial of

  intervention as of right in the Kane (2) proceedings. On September 13, 2022,

  this court exercised its discretion to hear SUWA’s appeal. On February 3, 2023,

  the same day that the United States and Kane County filed their merits briefs,

  they each petitioned for initial hearing en banc, which SUWA opposed. On

  April 17, 2023, we denied the en banc request and assigned the appeal for oral

  argument. Now, exercising jurisdiction under § 1292(b), we affirm in part and

  reverse in part.

                             STANDARD OF REVIEW

        We review de novo the denial of a “successive motion to intervene” when

  “a proposed intervenor shows that the circumstances have changed between the

  two motions to intervene.” Kane III, 

. In its mandate in Kane

  III, this court announced controlling legal principles on intervention, which


        13
           The district court did not mention the timeliness requirement of
  Rule 24(a)(2). We note that neither Kane County nor the United States asserts
  that SUWA’s fourth motion to intervene was untimely. “The timeliness of a
  motion to intervene is assessed in light of all the circumstances, including the
  length of time since the applicant knew of his interest in the case . . . .” Kane
  III, 928 F.3d at 890–91. Because SUWA promptly requested permission from
  the district court after we issued our mandate in Kane III, we conclude that
  SUWA’s fourth motion was timely under Rule 24(a)(2).
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  SUWA relied on in its fourth intervention motion. See 

 (deciding that

  “though SUWA and the United States had identical interests in the title

  determination, they do not on scope”). Given this change in circumstances,

  “[w]e see no sense in blocking ourselves from the same de novo review we give

  the initial motion to intervene.” 

.

                              LEGAL FRAMEWORK

        Before proceeding to the merits of the intervention issue, we briefly

  describe the legal framework governing R.S. 2477 claims under the Quiet Title

  Act. Such disputes involve two issues: title and scope, which the district court

  is to address “in separate steps.” Kane III, 

.

        First, the court makes the “binary determination of whether a right-of-

  way exists at all.” 

; accord Kane I, 

 (quoting San

  Juan Cnty., 

 (Ebel, J., concurring in part, and dissenting in

  part)). Second, the court determines “the pre-1976 uses of the right-of-way.”

  Kane III, 

. And third, the court decides “whether, based on the

  pre-1976 use, the right-of-way should be widened to meet the exigencies of

  increased travel.” 

 Thus, step one concerns title, and steps two and three,

  scope. Both title and scope are questions of state law. See SUWA v. BLM,

  

 (applying state law to decide title); Kane III, 

  (applying state law to decide scope).

        At step one, in deciding whether a right-of-way exists, the court

  evaluates whether the grant of the alleged R.S. 2477 right-of-way was accepted

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  through continuous public use before October 21, 1976. SUWA v. BLM, 

 (“Acceptance of an R.S. 2477 right of way in Utah . . . requires

  continuous public use for a period of ten years.”). If Kane County proves such

  pre-1976 acceptance, the court must quiet title to the identified travel surface—

  i.e., the beaten path—in favor of Kane County. But otherwise, Kane County’s

  quiet title claim must fail.

        If Kane County succeeds in proving that the R.S. 2477 right-of-way

  exists, the litigation proceeds to the more “nuanced” scope inquiry. 14 Kane III,

  

 (quoting San Juan Cnty., 

 (Ebel, J., concurring

  in part, and dissenting in part)). Here, “scope” refers to the “width based on the

  pre-1976 use.” 

 But the “width” of a right-of-way “is not limited to the

  actual beaten path as of October 21, 1976.” Kane II, 772 F.3d at 1223. In Utah,

  the width of a right-of-way is that which is “reasonable and necessary under all

  the facts and circumstances.” Id. (quoting Memmott v. Anderson, 

 (Utah 1982)). And so an R.S. 2477 right-of-way “can be widened to meet

  the exigencies of increased travel, including where necessary to ensure safety.”

  

 (cleaned up). But still, the reasonableness and necessity of any expansion


        14
           See, e.g., Kane Cnty. v. United States, No. 08-cv-00315, 

, at *7–9 (D. Utah June 21, 2011) (granting in part Kane County’s
  motion for summary judgment—quieting title to select roads in favor of Kane
  County but reserving “issues pertaining to scope” for trial); Kane II, 772 F.3d
  at 1223 (accepting the district court’s determination that Kane County had
  proven title to three rights-of-way with a “travel surface” of 10 feet, 10–12
  feet, and 24–48 feet, respectively, but reversing for further proceedings to
  determine the scope of those rights-of-way).
                                          18
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  beyond the “actual beaten path” before October 21, 1976, must be read “in the

  light of traditional uses to which the right-of-way was put.” Id. (quoting Sierra

  Club v. Hodel, 

 (10th Cir. 1988), overruled on other

  grounds, Vill. of Los Ranchos De Albuquerque v. Marsh, 

 (10th

  Cir. 1992)).

        Thus, to determine the scope of an R.S. 2477 right-of-way, the court

  undertakes steps two and three.

        At step two, the court “determine[s] the pre-1976 uses of the right-of-

  way” based on historical evidence. Kane III, 

. 15 And at step

  three, based on the pre-1976 use, the court must decide, under Utah law,

  whether “Kane County . . . [is] entitled to widen the scope of the rights-of-way

  beyond the beaten path existing before October 21, 1976.” 

. 16


        15
           “Uses” is plural because there may be multiple pre-1976 uses relevant
  to determining the scope of the right-of-way. For example, in Hodel, we
  observed that the district court had found several pre-1976 uses including,
  “driving livestock; oil, water, and mineral development”; and tourism. 

.
        16
           “To the extent that” Kane County “wishes to improve the right-of-way
  beyond what is reasonable and necessary, however, it must first consult with”
  the Bureau of Land Management. Kane III, 

 & n.4 (citation
  omitted) (distinguishing “routine maintenance, which does not require
  consultation with the BLM,” from “construction of improvements, which
  does”). “Construction of improvements” includes, for example, “the widening
  of the road, the horizontal or vertical realignment of the road, the installation
  (as distinguished from cleaning, repair, or replacement in kind) of bridges,
  culverts and other drainage structures, as well as any significant change in the
  surface composition of the road (e.g., going from dirt to gravel, from gravel to
  chipseal, from chipseal to asphalt, etc.), or any improvement, betterment, or
                                                                (footnote continued)
                                         19
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        With this three-step framework in mind, we proceed to the question of

  whether the United States adequately represents SUWA’s interests in this case.

                                   DISCUSSION

        Before this court, SUWA challenges the district court’s denial of its

  fourth motion to intervene not only on scope but on title. Kane County and the

  United States have each filed separate response briefs. Though Kane County

  seeks affirmance of the district court’s denial of intervention it does not explain

  how Kane III is distinguishable from this case. 17 In contrast, the United States

  concedes that “there are no material differences” between this case and Kane

  III, and thus that this panel is “bound by [that] controlling precedent.” U.S. Br.


  any other change in the nature of the road that may significantly impact Park
  lands, resources, or values.” 

 (quoting SUWA v. BLM, 425 F.3d at 748–49).
  “[R]outine maintenance,” in contrast, “preserves the existing road, including
  the physical upkeep or repair of wear or damage whether from natural or other
  causes, maintaining the shape of the road, grading it, making sure that the
  shape of the road permits drainage, and keeping drainage features open and
  operable—essentially preserving the status quo.” 

 (quoting same).
        17
           At most, Kane County asserts that “[e]ach case has different facts,
  different roads, and different circumstances,” K.C. Br. at 43, but does not
  identify how such differences remove this case from the ambit of Kane III.
         We acknowledge that Kane County’s brief goes on to assert that,
  notwithstanding Kane III, SUWA does not have standing and cannot satisfy the
  interest prongs of Rule 24(a)(2). But because a panel lacks authority to override
  Kane III, Kane County must obtain en banc review before pursuing those
  arguments. Arostegui-Maldonado v. Garland, 

, 1142 (10th Cir.
  2023) (emphasizing that one panel cannot override the decision of another
  panel). We therefore presume that because Kane County filed a motion for an
  initial en banc review the same day it filed its merits brief, Kane County has
  asserted these arguments to preserve them for consideration by an en banc
  court.

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  at 16. The United States adds that, under Kane III, we must affirm the district

  court’s denial of SUWA’s motion to intervene as to title but reverse as to

  scope. 18 

 We agree with the United States.

  I.    Intervention as of Right Under Rule 24(a)(2)

        To intervene as of right under Rule 24(a)(2), SUWA must establish

  (1) that the application is timely, (2) that it claims an interest relating to the

  property or transaction that is the subject of the action, (3) that the interest may

  as a practical matter be impaired or impeded, and (4) that the interest may not

  be adequately represented by the United States.

        No party disputes that SUWA’s motion is timely. And the district court

  acknowledged that under governing law, SUWA has an interest that may as a

  practical matter be impaired or impeded. Kane (2), 606 F. Supp. 3d at 1152; see

  San Juan Cnty., 503 F.3d at 1190–1203; Kane III, 928 F.3d at 891–92;

  WildEarth Guardians v. Nat’l Park Serv., 

 (10th Cir. 2010)

  (“With respect to Rule 24(a)(2), we have declared it indisputable that a

  prospective intervenor’s environmental concern is a legally protectable

  interest.” (cleaned up)). So the only issue in dispute is whether the district



        18
           The United States’ brief asserts additional arguments challenging this
  court’s reasoning in Kane III as it relates to SUWA’s intervention under
  Rule 24(a)(2) “to be considered by the full court if it grants initial hearing en
  banc and to preserve them for further review.” U.S. Br. at 23. As with Kane
  County’s en banc arguments, we acknowledge but do not reach them. See
  Arostegui-Maldonado, 75 F.4th at 1142.

                                           21
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  court erred in concluding that the United States adequately represents SUWA’s

  interests.

         As the proposed intervenor, SUWA must show that the representation by

  the existing parties may be inadequate; but this burden is “minimal.” Trbovich

  v. United Mine Workers, 

, 538 n.10 (1972) (“The requirement of

  the Rule is satisfied if the applicant shows that representation of his interest

  ‘may be’ inadequate; and the burden of making that showing should be treated

  as minimal.” (quoting 3B J. Moore, Federal Practice 24.09–1 (4) (1969));

  accord Berger v. N. Carolina State Conf. of the NAACP, 

  (2022) (“This Court has described the Rule’s test as presenting proposed

  intervenors with only a minimal challenge.”); see also Nat. Res. Def. Council v.

  U.S. Nuclear Regul. Comm’n, 

, 1346 (10th Cir. 1978) (“[T]he

  possibility of divergence of interest need not be great in order to satisfy th[is]

  burden . . . .”).

         When a would-be intervenor’s and the representative party’s interests are

  “identical,” we presume adequate representation. Bottoms, 

. But

  “this presumption applies only when interests overlap fully.” Berger, 597 U.S.

  at 196–97 (cleaned up). As the Supreme Court recently stated, “[w]here ‘the

  absentee’s interest is similar to, but not identical with, that of one of the

  parties,’ that normally is not enough to trigger a presumption of adequate

  representation.” 

 at 197 (quoting 7C Wright, A. Miller, & M. Kane, Federal

  Practice and Procedure § 1909 (3d ed. Supp. 2022)). And when, as here, the

                                           22
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  government is the representative party, we have expressed doubt about whether

  it can “adequately represent the interests of a private intervenor and the

  interests of the public.” W. Energy All. v. Zinke, 

 (10th Cir.

  2017). We have also noted that “[i]n litigating on behalf of the general public,

  the government is obligated to consider a broad spectrum of views, many of

  which may conflict with the particular interest of the would-be intervenor.”

  Clinton, 

. “This potential conflict exists even when the

  government is called upon to defend against a claim which the would-be

  intervenor also wishes to contest.” 

        A.    The United States does not adequately represent SUWA’s
        interests on the issue of scope.

        As detailed above, we determined in Kane III that the United States does

  not adequately represent SUWA’s interests on scope. But the district court

  brushed past Kane III in remarking that Kane III did not create “a per se right

  to intervene in R.S. 2477 cases” and that Kane III is “distinguishable” from this

  case. Kane (2), 606 F. Supp. 3d at 1142. But Kane III’s intervention analysis

  applies in this substantially identical case. As spelled out below, we are

  unpersuaded by any of the district court’s reasons for saying otherwise.

              1.     The United States’ Interest

        The district court ruled that the “very nature of the legal analysis and

  evidence” in this R.S. 2477 litigation shows that “competing policy, economic,

  political, legal, and environmental factors” are extraneous to the scope


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  determination. Kane (2), 606 F. Supp. 3d at 1152–53 (quoting Kane III,

  928 F.3d at 893–94). Viewed this way, the court determined that the only

  interest that the United States represents is its “exclusive title to property.” Id.

  at 1153. We disagree.

        First, we conclude that the “nature of the legal analysis and evidence” in

  Kane III is indistinguishable from that in this case. See id. As the United States

  concedes, this case and Kane III have no material differences that would alter

  the nature of the legal analysis or evidence. Indeed, the only difference we

  detect is that the two cases involve separate alleged R.S. 2477 rights-of-way.

  But neither the parties’ briefs nor the district court’s order identifies why this

  difference matters.

        Second, the district court misidentifies the United States’ interests in the

  scope determination. In the court’s view, the only interest that the United States

  represents is its “exclusive title to property.” Id. But as outlined above, the

  scope issue arises only after the United States has lost on the underlying title

  dispute—meaning after the district court has quieted title in favor of Kane

  County. Thus, when the United States begins litigating scope, it has already

  lost its title argument and is next litigating the permitted use and width of the

  right-of-way. 19 The district court’s scope determination will dictate how Kane


        19
           We agree with Kane County that scope encompasses both use and
  width. See Oral Argument at 32:10. Due to the limited nature of the property
  right, “alter[ing] the use” of the right-of-way “affects the [United States’]
                                                                 (footnote continued)
                                           24
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  County can use its right-of-way, for instance as a two-lane vehicular road, a

  two-track jeep trail, a bridle path, or a footpath. See SUWA v. BLM, 425 F.3d at

  747–48. So contrary to the district court’s view, the scope determination is not

  about the United States’ exclusive title to property; it is about how Kane

  County can use its right-of-way across federal public land. Moreover, in

  Kane III, we rejected the view that in litigating the scope of an R.S. 2477 right-

  of-way, the United States’ only interest is its exclusive title to property.

  

.

        We acknowledge that “the federal government is not always legally

  obligated to consider a broader spectrum of views.” Kane (2), 606 F. Supp. 3d

  at 1153. But as the district court itself recognized, such an obligation “arises

  when it is ‘litigating on behalf of the general public.’” Id. (quoting Clinton,

  

); see also Clinton, 

 (“In litigating on behalf

  of the general public, the government is obligated to consider a broad spectrum

  of views . . . .”); WildEarth Guardians, 573 F.3d at 996–97 (observing that the

  federal government “has multiple objectives” in litigating on “behalf of the

  general public” (citation omitted)). And as we determined in Kane III, because


  servient estate,” even if “conducted within the physical boundaries” of the
  right-of-way. SUWA v. BLM., 

. “Utah adheres to the general
  rule that the owners of the dominant and servient estates ‘must exercise [their]
  rights so as not unreasonably to interfere with the other.’” Hodel, 

 (quoting Big Cottonwood Tanner Ditch Co. v. Moyle, 

  (Utah 1946); and then citing Nielson v. Sandberg, 

 (Utah
  1943) (denoting that an easement is limited to the original use for which it was
  acquired)).
                                           25
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  the property at issue in R.S. 2477 litigation “is public land, public interests are

  involved.” Kane III, 

 (citing Block, 461 U.S. at 284–85)

  (observing that the Quiet Title Act was “necessary for the protection of the

  national public interest”); see also San Juan Cnty., 

  (qualifying R.S. 2477 rights-of-ways as those over “public lands”).

        As in Kane III, the scope issue in this case concerns the use of R.S. 2477

  rights-of-way across the Grand Staircase-Escalante National Monument—i.e.,

  federal public lands. See 

(a) (authorizing the President to

  establish national monuments “on land owned or controlled by the Federal

  Government”); Proclamation No. 6920, 

, 50,225 (Sept. 18,

  1996) (establishing the Grand Staircase-Escalante National Monument in the

  State of Utah, reserving “approximately 1.7 million acres” of “Federal land”).

  And so, consistent with Kane III, we conclude that the scope determination,

  unlike the title determination, implicates the United States’ “broad-ranging and

  competing interests.” Kane III, 

.

              2.     Relief versus interest

        In ruling that “SUWA’s interests [on scope] are adequately protected” by

  the United States, the district court emphasized that the United States (1) has

  “asserted it intends to argue for the narrowest width possible if any right-of-

  way is established in [Kane County’s] favor” and (2) has “not acted contrary to

  its representations” during or after trial. Kane (2), 606 F. Supp. 3d at 1154. In

  the district court’s view, “SUWA can ask for no more.” Id. In a similar vein,

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  Kane County asserts that the United States adequately represents SUWA’s

  interests in this lawsuit because both parties seek the same “relief.” K.C. Br. at

  53. But as we reasoned in Kane III, “even if the United States is advocating as

  well as can be expected for the narrowest scope of the roads, its conflicting

  interests render its representation inadequate.” 

 (citations

  omitted and emphasis added). Moreover, even if the United States and SUWA

  are pursuing the same form of relief for purposes of piggyback standing, 20 that

  does not render their interests identical under Rule 24(a)(2). 

 at 887 n.13

  (collecting cases). “To hold otherwise would leave movants who pursued the

  same form of relief as the representative party per se adequately represented

  under Rule 24(a)(2) and thus denied intervention . . . .” 

 We decline to

  equate relief and interests.

        At bottom, the pertinent inquiry is not whether SUWA and the United

  States are pursuing the same relief—we accept that they are—but instead is

  whether they have identical interests in pursuing that relief. We turn to that

  question next.

               3.    SUWA’s and the United States’ Interests




        20
          In Town of Chester v. Laroe Estates, Inc., the Supreme Court modified
  the “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. 

 (2017) (emphasis added).

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        In Kane III we determined that SUWA and the United States have

  “conflicting interests” in the scope determination. 

. This was

  not novel. As far back as San Juan County, a majority of this court recognized

  that if title is settled in favor of Kane County, then the United States “may wish

  to compromise with the County concerning use of the road.” 

;

  see also Kane I, 

 (anticipating that “SUWA and the United

  States might disagree as to the potential scope of Kane County’s purported

  rights-of-way,” but that SUWA had waived such an argument “for purposes of

  this appeal”).

        Here, the parties do not contend that their interests have shifted since

  Kane III or between Kane (1) and Kane (2). Despite Kane III’s pronouncement

  that “SUWA’s and the United States’ interests are not identical” on the issue of

  scope, 

, the district court considered their interests as

  “harmonious” enough that the United States adequately represented SUWA’s

  interests on scope, Kane (2), 606 F. Supp. 3d at 1153.

        The district court reasoned that “SUWA’s objectives and interests in this

  litigation are the same as the United States” because “if title is found in favor

  of [Kane County] for any” right-of-way, SUWA and the United States “seek for

  that right-of-way to be as narrow as possible.” Id. To the district court, this

  meant that “any interests SUWA may have are still adequately represented by

  the United States.” Id. at 1153–54. But as discussed above, this reasoning

  improperly equates the distinct concepts of relief and interests.

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        Another problem with the district court’s adequacy-of-representation

  determination is that Rule 24(a)(2) requires that the interests of SUWA and the

  United States be identical, not just “harmonious.” Id. at 1153. Indeed, the

  Supreme Court has declared that “[w]here ‘the absentee’s interest is similar to,

  but not identical with, that of one of the parties,’ that normally is not enough to

  trigger a presumption of adequate representation.” Berger, 

; see

  

 (concluding that under Rule 24(a)(2), the intervening party’s interests

  were not “identical” to the current party, though both were defending the

  constitutionality of the disputed state law, because the intervenor “s[ought] to

  give voice to a different perspective” and had a different “primary objective”

  than the current party); accord Wineries of the Old Mission Peninsula Ass’n v.

  Twp. of Peninsula, 

 (6th Cir. 2022) (“[O]verlapping interests

  do not equal convergent ones for the purposes of assessing representation under

  Rule 24(a).”); see also, e.g., La Union del Pueblo v. Abbott, 

 (5th Cir. 2022) (finding inadequate representation under Rule 24(a)(2))

  (expounding that despite the intervenor-affiliate group and current government-

  party sharing the “same objective” of defending the constitutionality of a

  statute, the affiliate-group’s interests were “less broad than those of the

  governmental defendants” and “different in kind from the public interests of the

  State or its officials”); Brumfield v. Dodd, 

 (5th Cir. 2014)

  (concluding same) (observing that though Louisiana and the parent-intervenors

  both sought to defend the state’s school voucher program, Louisiana had

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  “extensive interests to balance” in defending its school voucher program, while

  the parent-intervenors’ “only concern [wa]s keeping their vouchers”); Planned

  Parenthood of Minnesota, Inc. v. Citizens for Cnty. Action, 

, 870

  (8th Cir. 1977) (concluding same) (articulating that despite the intervenor and

  representative parties being “interested in upholding the constitutionality of the

  ordinance” that their “respective interests, while not adverse, [were]

  disparate”).

        Because, as in Kane III, SUWA’s interests are not “identical” to the

  United States’ interests, we conclude that “no presumption of adequate

  representation applies.” 

. And so, “given our court’s relaxed

  intervention requirements in cases raising significant public interests such as

  this one, and our liberal approach to intervention, we hold that SUWA has

  [again] satisfied its minimal burden of showing that the United States may not

  adequately represent its interests” on scope in the Kane (2) litigation. 

 at

  896–97 (cleaned up); see 

 (“For a proposed intervenor to establish

  inadequate representation by a representative party, ‘the possibility of

  divergence of interest need not be great,’ and this showing ‘is easily made’

  when the representative party is the government.” (first quoting Nat. Res. Def.

  Council, 578 F.2d at 1346; and then quoting Clinton, 

)). 21


         In Kane III we ruled that “even if” the presumption applied, SUWA
        21

  would have rebutted it. 

. Because we have concluded that no
  presumption applies in this case, we need not consider whether SUWA could
  overcome such a presumption.
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               4.    Rule 1 of the Federal Rules of Civil Procedure

        Finally, the district court theorized that even if SUWA had satisfied the

  requirements of intervention under Rule 24(a)(2), Rule 1 of the Federal Rules

  of Civil Procedure might still provide grounds for denying intervention.

  Kane (2), 606 F. Supp. 3d at 1155–56. Rule 1 states that the civil rules are to

  “be construed, administered, and employed by the court and the parties to

  secure the just, speedy, and inexpensive determination of every action and

  proceeding.” We sympathize with district court judges hearing cases involving

  multiple parties and multiple lawyers. But we liken this case to Berger, where

  the Court stated that, “[w]hatever additional burdens adding [the intervenor] to

  this case may pose, those burdens fall well within the bounds of everyday case

  management” in cases involving multiple parties. 597 U.S. at 199–200

  (rejecting the argument that allowing intervention could “make trial

  management impossible” (citation omitted)). We further note that we have

  found no caselaw using Rule 1 to deny intervention to a party that has satisfied

  Rule 24(a)(2)’s requirements. Having already concluded that SUWA has

  satisfied such requirements, we reject the contention that Rule 1 precludes

  intervention in this case.

                                        ***

        Because this case is materially indistinguishable from Kane III, along

  with the reasons discussed above, we hold that the district court’s order

  contravenes Kane III and thus its denial of SUWA’s motion to intervene on the

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  issue of scope was error. This conclusion stands despite our agreeing with Kane

  County and the district court that Kane III did not grant SUWA a “per se right

  to intervene in all R.S. 2477 cases.” K.C. Br. at 43–44 (quoting Kane (2),

  606 F. Supp. 3d at 1142 n.6). Nor do we suggest that Kane III “mandate[s] that

  courts in this circuit allow SUWA—and every other environmental, recreational

  or other special interest group . . . to intervene in every road case in which it

  seeks to intervene.” K.C. Br. at 43. The intervention inquiry is, indeed, “a

  highly fact-specific determination.” San Juan Cnty., 

 (citation

  omitted). So in cases in which the material facts, the parties, and the legal

  issues differ from those in Kane III, the result might differ, too. But where, as

  here, there is no “material difference in fact,” U.S. Br. at 45, between this case

  and Kane III, Kane III controls.

        We now turn to the matter of whether SUWA’s interests are adequately

  represented on the issue of title.

        B.    The United States adequately represents SUWA’s interests on
        the issue of title.

        In Kane I this court ruled that the United States adequately represents

  SUWA’s interest on the issue of title. 

; accord Kane III,

  

 (“SUWA and the United States ha[ve] identical interests in the

  title determination . . . .”). Acknowledging our holding in Kane I, SUWA

  asserts that we still should allow it to intervene in Kane (2) on the issue of title.

  But Kane I binds this panel, Arostegui-Maldonado, 75 F.4th at 1142; and we


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  agree with the reasoning of that opinion. We accordingly reject SUWA’s

  arguments asking us to overrule binding precedent, and we affirm the district

  court’s order denying SUWA intervention on the issue of title.

                                  CONCLUSION

        Consistent with our holdings in Kane I and Kane III, we reverse the

  district court’s denial of SUWA’s motion to intervene on the issue of scope,

  affirm on the issue of title, and remand for further proceedings in accordance

  with this opinion.




                                         33
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  No. 22-4087, Kane County, Utah et al. v. United States of America, et al.
  KELLY, Circuit Judge, concurring.
         Based upon Kane County v. United States (Kane III), 

 (10th Cir.

  2019), I am compelled to agree that the district court’s denial of SUWA’s motion to

  intervene on the issue of scope is reversible.

         That said, I agree with the government that Kane III’s distinction between title and

  scope in quiet title actions does not comport with our precedent and is not analytically

  sound. Aplee. Br. (U.S.) at 57–60. When it comes to title, SUWA has no interest that

  qualifies it to act as a party in this litigation which differs from the interest that any hiker

  or off-road vehicle enthusiast would have. SUWA could not bring a quiet title action

  against the United States nor could SUWA be a defendant in a quiet title suit over the

  roads at issue in this litigation, as it has no property interest of its own at stake. A quiet

  title action simply does not involve questions of federal land management, see N. Dakota

  ex rel. Stenehjem v. United States, 

 (8th Cir. 2015), and the government

  has the exclusive right to defend its title — and by extension, the scope — of any right-

  of-way, see San Juan Cnty. v. United States, 

, 1215–16 (10th Cir. 2007) (en

  banc) (McConnell, J., concurring); Aplee. Br. (U.S.) at 45–48.

         The United States and SUWA share identical objectives as to title: defending the

  government’s title and minimizing any rights-of-way across federal land. See Kane Cnty.

  v. United States, 

, 1334–36 (10th Cir. 2020) (Tymkovich, C.J., dissenting

  from denial of reh’g en banc). As the district court observed (and through whatever steps
Appellate Case: 22-4087      Document: 010111008938          Date Filed: 03/04/2024      Page: 35



  crafted by this court to divide the inquiry), “ownership and scope are the two sides of the

  same coin that comprises title.” VIII Aplt. App. 2304–05.

         Moreover, despite Federal Rule of Civil Procedure 24(a)(2)’s mandate to consider

  “practical matter[s]” regarding intervention as of right, Kane III results in an impractical

  (or remarkably inefficient) case management situation. The parties agree that title and

  scope are not neatly divisible. As SUWA notes: “The same evidence and arguments

  underlie both the title and scope determinations, and there is no practical way to split up

  discovery, trial, and litigation into ‘title’ and ‘scope.’” Aplt. Reply Br. at 20. And as the

  government explains: “The district court cannot find the existence of a right-of-way

  without defining its scope.” Aplee. Br. (U.S.) at 58; accord Aplee. Br. (Utah & Kane

  County) at 44. The court should revisit the unworkable construct it has created. See San

  Juan Cnty., 503 F.3d at 1209–10 (Kelly, J., concurring).




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