Environmental Groups Denied Intervention in Right-of-Way Case

action that [wa]s different from any other member of the public who cares deeply on july 14, 2008, the united states filed an answer asserting six specific hosp., 254 f.3d 1168, 1174 (10th cir. 2001) (defining abuse of discretion review) first claim alleged in the complaint sought to quiet title to kane county's government "ha[s] displayed no reluctance [in these proceedings], at least so far erroneously held that suwa [wa]s obligated to offer `additional defenses or id. at 773-74 (emphasis added). the district court further concluded that suwa claims relevant to the issue to be decided that would not already be fully and suwa's interest. consequently, we agree with the district court that suwa was suwa's interest. proceeding directly to the latter of these inquiries, we conclude lands not reserved for public uses." app. at 19. more specifically, the complaint district court's ruling on a motion to intervene as of right under federal rule of society, sierra club, 1228 (ebel, j., concurring in part, dissenting in part). in seeking to intervene in that it has any special expertise, experience or knowledge with of-way were in fact created on public land." san juan county v. united states, act," id. at 61; (2) the district court "lack[ed] jurisdiction over the subject matter states." id. further, the district court noted "[t]here [wa]s nothing in the briefing the remaining six members of the en banc court concluded that this case do not include the same factual underpinnings of continuing 9 thus, the propriety of suwa's motion to intervene as of right hinges on: (1) subsection (b)(1)(b) thereof requires the potential intervenor to show that it "has practical matter impair or impede the movant's ability to protect its interest, beginning of the case, and suwa agree[d] to abide by the schedules set by the alliance, wilderness society, and sierra club. civil procedure 24(a)(2). coal. of ariz./n.m. counties for stable econ. growth rule 24(b) would be an invitation to any member of the public who holds strong before kelly, ebel, and briscoe, circuit judges. (d.c. no. 2:08-cv-00315-cw) "r.s. 2477 was repealed by the federal land policy and management act act." id. lastly, suwa asserted that its "presence in the litigation w[ould] not fully defend" against kane county's quiet title claims. id. at 777. continuing, timely motion `claims an interest relating to the property or transaction that is the elisabeth a. shumaker a reconstruction-era law known as revised statute 2477 (r.s. 2477)2 impeded by the disposition of the litigation; and (2) whether the united states, in located in western kane county, approximately 20 miles northeast of kanab, assuming, for purposes of argument, that the district court erred in relying on this identical "adequacy of representation" question, but was unable to reach a that it c[ould] satisfy the statute of limitations set forth in the quiet title act," 3 satisfied its minimal burden of showing that the [government might not] would not involve any claims or defenses in common "with suwa's asserted heidi j. mcintosh, southern utah wilderness alliance, salt lake city, utah to the roads at issue. id. at 1204 (opinion of hartz, j.). in that same section, the the complaint alleged that under v. dep't of the interior, 100 f.3d 837, 840 (10th cir. 1996). we review rulings part, on the notion that the quiet title action at issue would not "require[] a simple alliance, wilderness southern utah wilderness as is evident from the complaint, the only issue in this case is quiet title proceedings, it has failed to establish, at this stage of the litigation, that quiet title to two roads, mill creek road and bald knoll road, both of which are holding that that is an improper consideration under rule 24(b)). moreover, even publish alleged that kane county had designated both roads "as public highways and an inadequate representative in this title dispute, which is ultimately grounded in 15 would be irrelevant and not admissible in evidence. factor, suwa has not challenged the three other rationales offered by the district speculation about and critiques of potential litigation strategies by the" federal public land, nearly 1.3 million acres of which lie within the grand staircase- defendant-appellee. quiet title action. in this case, it is evident that suwa does not have 7 management decisions in the past does not demonstrate that the united states is id. at 772. with respect to the first of these issues, the district court concluded: between the parties," id.; (4) kane county "failed to state a claim upon which respect to the historic use of the roads that would not be available to (1976) ("[a] federal appellate court does not consider an issue not passed upon rule 24, from taking that fact into consideration (and suwa has cited no cases permissive intervention, the united states in this case had "assert[ed] its intent to public may have on preserving such wilderness areas. none of these holds title to the roads based on r.s. 2477 will turn entirely on the october 21, 1976" repeal of r.s. 2477. id. in addition, the complaint alleged on april 6, 2009, the district court issued a memorandum decision and intervention as of right under rule 24(a)(2), the district court noted that kane holme, roberts & owen llp, salt lake city, utah, for plaintiff-appellee kane as the record before us shows, to claim full title to" the roads at issue, and protect[ed] r.s. 2477 rights-of-way in existence at the time of its enactment. protectable interest in the quiet title action, and because, in any event, a claim or defense that shares with the main action a common question of law or concluded that because "suwa d[id] not share any claim or defense in th[e] appears to be prepared to make in this case would not be made by the because such a right-of-way could have come into existence without any judicial the district court, in denying suwa's request for permissive intervention, court that "[t]he only issue to be resolved . . . [wa]s whether the united states or the only issue to be resolved, as suwa conceded at oral nor the arguments to suggest that suwa would offer any additional defenses or briefing nor the arguments to suggest that suwa would offer any additional argument was suwa able to proffer any evidence to which it would lead opinion further concluded that suwa could not overcome this presumption plaintiff-appellee, 5 march 8, 2010 continue with the action and the action would be dismissed. county, utah. affirmed. present . . . an argument on the merits that suwa would make." 503 f.3d at although san juan county does not mandate a particular outcome in this argument, is whether the united states or kane county holds title. repeatedly introduced, but never adopted by congress). historically, kane 14 tenth circuit water & sanitation dist. v. browner, 9 f.3d 88, 89-90 (10th cir. 1993). i (steven h.m. bloch, southern utah wilderness alliance, salt lake city, utah; adopted by the two competing contingents in san juan county, that suwa has ii. permissive intervention county's purported rights-of-way. but any argument in that regard has, for adequately represent suwa's interests in th[e] litigation." id. at 1227 (ebel, j., on april 25, 2008, kane county initiated this action by filing a complaint failed to establish that its interest in the instant case will not be adequately v. u.s. forest serv., 573 f.3d 992, 995 (10th cir. 2009) (quoting fed. r. civ. p. [had] expend[ed] public funds to construct and maintain these roads prior to [the] of its motion for permissive intervention under rule 24(b). we review de novo a not compel a different conclusion. absent evidence showing that the 1 "rule 24(a)(2) provides for intervention as of right by anyone who in a clerk of court [we]re in common with those that [we]re at the center of th[e] action: whether the the three judges who joined the lead opinion, comprised a majority that 2 against the united states under the quiet title act, 28 u.s.c. � 2409a, seeking to basis to allow intervention by suwa. this case, however, suwa made no such assertion regarding the quiet title claims id.; (3) the district court "lack[ed] jurisdiction over the subject matter of th[e] intervention by suwa was improper both because suwa lacked a legally defenses to the two claims alleged in kane county's complaint: (1) the district "limited to the question of title, an issue . . . adequately represented by the united b) conclusion determined are not issues that are relevant to the determination of the parties under rule 19 of the federal rules of civil procedure with respect to the states." aplt. br. at 50. suwa argues "[t]his is clear legal error that warrants facts and circumstances of th[e] case support[ed] a finding that kane county represented by the united states," id. at 774: counsel attempted, upon questioning at oral argument before this court, to argue a) adequacy of the united states' representation of suwa's interests share any claim or defense . . . that [wa]s different from any other member of the 8 scope of that right-of-way if it d[id] exist." id. at 1228. shawn t. welch (kendra l. shirey and janna b. custer with him on the brief), of the united states argues that it has been and will be vigorous in united states will not vigorously defend this position, there is no v. no. 09-4087 philpott, attorney, environment & natural resources division, united states fully and completely advocated by the united states," and that "suwa d[id] not not be available to the united states." app. at 775. national park service as did the roads at issue in san juan county. kane county h[eld] title" to the roads at issue. id. at 775. to be sure, suwa's conservation interest." id. rather, the district court concluded, the claims were binary determination" of whether "san juan county ha[d] a right-of-way "even if an applicant satisfies the other requirements of rule 24(a)(2), it is utah law prior to 1976. in neither its briefing nor at a [sic] oral "nuanced" determination encompassing "not only whether there [wa]s any right- court "lack[ed] jurisdiction over the subject matter of th[e] action due to [kane characteristics of the lands and the risks that opening the roads to the non-federal activities that predate those management decisions." gov't br. at 20. department of justice, washington, d.c., with him on the brief), for defendant- cares deeply about the outcome of the decision, it does not claim title southern utah wilderness alliance, the wilderness society and the sierra 10 because it provided "no reason to believe that the [government] ha[d] any interest united states are those relating to the management of the land, which require intervention as of right for the purpose of presenting only exercising jurisdiction pursuant to 28 u.s.c. � 1291, we affirm. tenth circuit facts is relevant to the determination of whether kane county holds fed. r. civ. p. 24(b)." id. both kane county and the united states opposed cause `undue delay or prejudice'" because "[t]he parties [we]re at the very regional solicitor department of the interior, salt lake city, utah; romney s. that both roads had been "continuous[ly] use[d] as public thoroughfares for a appeal from the united states district court county's amended complaint was subsequently filed on november 10, 2008. whether suwa's interest [wa]s adequately represented by the existing parties." members of the en banc court concluded that suwa had a legally protectable county had "accepted r.s. 2477 rights-of-way for" these two roads "on public filed the first time on appeal."). further, suwa has not challenged on appeal the issue. how the lands adjacent to the roads will be managed and 503 f.3d 1153, 1168 (10th cir. 2007) (internal quotation marks and citations public who cares deeply about the outcome of th[e] litigation." id. at 777. defending against kane county's quiet title claims, will adequately represent interest in the quiet title action, and thus only those seven members reached the unless existing parties adequately represent that interest.'" wildearth guardians united states court of appeals for the reasons outlined above, we conclude the district court did not err in motion to intervene as of right under rule 24(a)(2), and the district court's denial alleged in the complaint sought, in similar fashion, to quiet title to kane county's ("absent extraordinary circumstances, we will not consider arguments raised for to the united states. moreover, suwa does not present evidence escalante national monument (monument). the non-monument federal public experience or knowledge with respect to the historic use of the roads that would although suwa is correct in noting that rule 24(b) does not require a in this appeal, suwa challenges both the district court's denial of its portions of land that suwa is advocating for protection under its long-proposed represented by the federal government. as noted, the four members of the en period in excess of ten years prior" to the repeal of r.s. 2477. id. at 20. the 2 club (collectively suwa) appeal from the district court's denial of their motion purported r.s. 2477 public highway right-of-way for bald knoll road, that, even assuming suwa has an interest in the quiet title proceedings at issue, whether kane county can establish the requirements to show that it united states court of appeals must consider whether the intervention will unduly delay or prejudice the the lead opinion in san ii claims relevant to the issue to be decided' from those offered by the united fact." further, rule 24(b)(3) states that "[i]n exercising its discretion, the court that suwa and the united states might disagree as to the potential scope of kane county emphasized that the quiet title action at issue there would involve a reversal" because "rule 24(b) contains no requirement that intervenors offer a 13 land that lies within kane county includes wilderness study areas, as well as different kane county route numbers (k3930a and k3935). on september 24, 2008, kane county moved for leave to file an amended suwa's motion to intervene. persuaded they are sufficient, either alone or together, to establish that the federal concurring in part, dissenting in part). this conclusion was based, in pertinent kane county encompasses approximately 1.6 million acres of federal in contrast, four of the seven members concluded that "suwa [had] edward b. zukoski and andrea zaccardi, earthjustice, denver, colorado, with concession at oral argument that, were the united states and kane appellee united states. order denying suwa's motion to intervene. after outlining the requirements for seven members, that a presumption of adequate representation applied because the , kane suwa has failed to establish that the united states may not adequately represent title. * * * in san juan county, the court reminded that "nothing we action due to [kane county]'s failure to allege a justiciable case or controversy banc court who concluded that intervention should have been granted in san juan elec. coop., 79 f.3d 1038, 1043 (10th cir. 1996). of adversarial relations between itself and the bureau of land management the federal government will not adequately protect its interest. a defendant in th[e] action pursuant to fed. r. civ. p. 24(a)(2)." id. at 210. "in for the district of utah moreover, we note that, as was the case in san juan county, the federal below."); turner v. pub. serv. co. of colo., 563 f.3d 1136, 1143 (10th cir. 2009) intervention was barred by sovereign immunity. those six judges, together with have access about the historical use of the roads that is not available america's red rock wilderness act (a piece of legislation that has been "claims are barred by the statute of limitations in the quiet title act." id. purposes of this appeal, been waived. see singleton v. wulff, 428 u.s.106, 120 the united states. and sand dune, hancock, and four cave lakes roads in southwestern kane of having an impaired interest in the litigation. the issues raised in 4 assistant attorney general; brett l. tolman, united states attorney; john k. on permissive intervention under rule 24(b) for abuse of discretion. alameda concerning whether kane county c[ould] maintain its action under the quiet title in its motion to intervene, suwa argued, in addressing the possibility of juan county concluded, in a section garnering the votes of only three of those id. at 775-76 (emphasis added). lastly, the district court rejected suwa's motion is its long history of advocating to preserve the wilderness whether suwa has an interest relating to the quiet title claims alleged in kane whimsical, or manifestly unreasonable judgment." see nalder v. west park mill creek road includes segments of three different kane county route numbers consensus in resolving that question. to begin with, only seven of the thirteen a "legal interest" in the usual understanding of that word in a title complaint. attached to the motion was a proposed amended complaint asserting relief c[ould] be granted," id.; (5) kane county "failed to join indispensable county]'s failure to satisfy the `particularity' requirement of the quiet title act 1206 (opinion of hartz, j.). easement or not," but instead would involve a "more nuanced" determination that the alternative, suwa request[ed] leave to permissively intervene pursuant to omitted). as for the two arguments actually asserted below by suwa, we are not this case regarding the adequacy of representation question with the rationales kane county, utah, a political practical matter, ha[d] an interest that m[ight] be impaired or impeded and separate or additional claim or defense." id. (emphasis in original). government, and "suwa's disagreement with the united states' land with the federal government that those arguments "rel[y] on inapplicable cases to the roads at issue. this conclusion was evident by suwa's "includ[ing] a right-of-way width of 66 feet . . . ." id. at 36. "includ[ing] a right-of-way width of 66 feet . . . ." id. at 35. the second claim assuming, for purposes of argument, that suwa has a valid interest in these seven additional claims to quiet title to ten additional roads: skutumpah, swallow h[eld] a valid [right-of-way] under r.s. 2477 to" the routes at issue. app. at 247. on appeal, suwa challenges the district court's ruling, but only very "suwa has provided no basis to predict that the [federal government] will fail to claimed rights-of-way that cross[] private land," id. at 62; and (6) kane county's states department of justice, washington, d.c. (john c. cruden, acting to intervene in this action brought by kane county, utah, to quiet title to several county and the united states disputed "only the issues of whether suwa, as a 11 united states of america, about the outcome of th[e] litigation," "allow[ing] suwa to intervene . . . under first noted that unlike the situation in kootenai tribe of idaho v. veneman, 313 purported rights-of-way across federal public lands within kane county. irrelevant argument or evidence." the only arguments that suwa whether kane county can establish that it holds title to the roads at (blm) demonstrated that the united states might not adequately represent indeed, the primary focus of suwa's briefing in support of its not established that the district court's decision was "an arbitrary, capricious, county, the court finds that suwa has not established the element (internal quotations omitted). briefly. suwa asserts that "the district court abused its discretion because it on november 26, 2008, suwa moved for leave to intervene as of right "as controversy over roads into areas that have been protected by the between the issues raised by kane county and those in san juan lies within the discretion of the district court. city of stillwell v. ozarks rural federal rule of civil procedure 24(b) governs permissive intervention. i. intervention as of right permissive intervention, that it "intend[ed] to assert claims and defenses that the united states," or (b) "present evidence that it ha[d] any special expertise, the district court concluded that resolution of kane county's quiet title claims government will fail to adequately represent suwa's interests. indeed, we agree (k4400, k4410, and k4405) and bald knoll road includes segments of two effectively affirmed the district court's denial of intervention. parties.'" san juan county, 503 f.3d at 1203 (quoting fed. r. civ. p. 24(a)(2)). movants-appellants. involving intervention in challenges to administrative action as well as irrelevant adjudication of the original parties' rights." the grant of permissive intervention mangum, assistant united states attorney; james e. karkut, office of the court for denying suwa's request for permissive intervention. thus, suwa has views about the outcome to seek to intervene." id. district court's findings that suwa failed to (a) "proffer any evidence to which it of 1976, pub.l. no. 94-579, � 706(a), 90 stat. 2743, 2793. but that act explicitly ---------------------------------------------- completely advocated by the united states." id. finally, the district court in the rule necessarily prohibits a district court, in exercising its discretion under 3 context. while suwa obviously has an interest in the sense that it [district court]." id. at 248. her on the briefs), for movants to intervene-appellants southern utah wilderness aaron p. avila, attorney, environment & natural resources division, united merits of the "adequacy of representation" question.3 abut these areas of federal public land. park/park wash, north swag and nipple lake roads in western kane county; and thereby invoke a waiver of the united states' sovereign immunity under the 244. moreover, suwa conceded at the hearing on its motion before the district county. id. at 98-129. the united states did not oppose the motion. on october purported "r.s. 2477 public highway right-of-way for the mill creek [r]oad," based on the specific facts in this case and the differences case, we are persuaded, based upon comparing the arguments made by suwa in included "not only whether there [wa]s any right-of-way, but also the nature and have said would contravene the holding that rule 24(a)(2) does not county officials have maintained public transportation routes that pass through or briscoe, circuit judge. of-way, but also the nature and scope of that right-of-way if it d[id] exist." id. at request for permissive intervention, concluding "there [wa]s nothing in the suwa also noted that "in its proposed answer [it] raise[d] a number of defenses of th[e] action due to [kane county]'s failure to allege facts sufficient to show alleged by kane county. instead, suwa argued below only that (1) the history utah, and cross portions of federal public land.1 historic use of these roads by the public for the period required under 6 not entitled to intervene if its `interest is adequately represented by existing the two roads actually encompass five segments of kane county routes: whether the roads themselves will be open to the public once title is would have access about the historical use of the roads that [wa]s not available to government and suwa shared the "single objective" of defending exclusive title 24(a)(2)). it is undisputed in this case that suwa timely moved to intervene. 30, 2008, the district court granted kane county's motion. id. at 143. kane not entitled to intervene as of right under rule 24(a)(2). rejecting suwa's motion to intervene as a matter of right under rule 24(a). suwa's interests, and (2) "blm ha[d] not shown a willingness to defend federal had "failed to show that its interests in th[e] case [we]re not adequately suwa's consent or participation, suwa would have no right to permissive intervenor to assert a separate or additional claim or defense, nothing subdivision, county to resolve all of the title issues as to the roads without county's first amended complaint that may, as a practical matter, be impaired or defenses or claims relevant to the issues to be decided that would not already be f.3d 1094 (10th cir. 2002), the sole case relied upon by suwa in support of subject of the action, and is so situated that disposing of the action may as a in san juan county, this court, sitting en banc, was presented with a nearly control of its routes in the face of [prior] county claims and actions." app. at in relinquishing . . . any part of the federal title to the road" at issue. id. at 1207. or other governmental declaration, much litigation continues over whether rights- defending its claim to legitimate title to the roads. the record does 12