Kane Cnty. v. United States

606 F.Supp.3d 1138

KANE COUNTY, UTAH (2), (3), and (4), a Utah political subdivision; and State of Utah, Plaintiffs (or Plaintiff-Intervenor, as to State of Utah in Kane County (2)),

v. UNITED STATES of America, Defendant,andSouthern Utah Wilderness Alliance et al., Defendant-Intervenors.

Consolidated Case No. 2:10-cv-1073-CW¹

Consolidated with Case Nos. 2:11-cv-1031-CW

2:12-cv-476-CW

Docket also in the following Case Nos: 1:12-cv-105

2:10-cv-1073

2:11-cv-1043

2:11-cv-1045

2:12-cv-423

2:12-cv-425

2:12-cv-428

2:12-cv-429

2:12-cv-434

2:12-cv-447

2:12-cv-451

2:12-cv-452

2:12-cv-461

2:12-cv-462

2:12-cv-466

2:12-cv-467

2:12-cv-471

2:12-cv-472

2:12-cv-477

United States District Court, D. Utah.

Signed June 6, 2022

Anthony L. Rampton, Kathy A. F. Davis, Mark Spencer Boshell, Roger R. Fairbanks, Kelsie Lynn Last, Utah Attorney General's Office, Salt Lake City, UT, for Beaver County, State of Utah.

Joseph Hosu Kim, Pro Hac Vice, US Department of Justice, Washington, DC, Melina Shiraldi, John K. Mangum, US Attorney's Office, Salt Lake City, UT, Cameron B. Johnson, US Dept. of the Interior, Salt Lake City, UT, for Defendant.

MEMORANDUM DECISION AND ORDER DENYING SUWA'S FIFTH MOTION TO INTERVENE AS OF RIGHT and RETAINING FOURTH AMENDED PERMISSIVE INTERVENTION ORDER

Clark Waddoups, United States District Judge

INTRODUCTION

On March 6, 2020, a mandate issued from the Tenth Circuit Court of Appeals that allowed SUWA² to intervene as of right on the issue of scope in Kane County (1), Utah v. United States , No. 2:08-cv-315 (D. Utah) (hereinafter "Kane County (1) ").³ Based on that ruling in

Kane County (1)

, SUWA has now filed a fifth motion to intervene as of right⁴ in this case—Kane County (2) —on the issues of title and scope.

Intervention as of right has serious effects. Courts have allowed one who cannot bring a claim or defense on its own to enter a suit and obtain the right to "conduct discovery, participate fully at trial, and pursue an appeal in the event of an adverse judgment." Caleb Nelson, Intervention , 106 Va. L. Rev. 271, 274–75 (2020) (hereinafter, "Nelson"). Despite the importance of intervention law, one professor has accurately noted, "the law governing motions [to intervene] is a mess." Id. at 274.

In this case, the State of Utah and Kane County assert title to certain roads that cross federal land. Although the roads at issue came into existence before SUWA did,⁵ SUWA nevertheless asserts it has rights that will be infringed if it is not permitted to intervene as of right. Indeed, SUWA contends its rights are so important that the United States, as the sovereign landowner, cannot possibly defend title and scope adequately without SUWA's involvement.

This case, however, is now at the post-trial stage. Throughout the proceedings in this case, the United States has vigorously defended against Plaintiffs’ claims to title. During a three-week bench trial, the court observed that very defense, which the United States put on through multiple attorneys. In its post-trial briefing, the United States seeks dismissal of every bellwether road in this case on jurisdictional grounds. See United States’ Amended Motion to Dismiss (ECF No. 671). To the extent jurisdiction is found, the United States has not conceded title to a single road and is arguing for the narrowest width it can under the law. See United States’ Proposed Findings of Fact and Conclusions of Law (ECF No. 677). SUWA's interests have been, and continue to be, adequately represented by the United States in this case.

SUWA also seems to imply that because the Tenth Circuit allowed SUWA to intervene as of right in Kane County (1) , this court also must allow SUWA to intervene as of right in this case and, by extension, all other R.S. 2477 cases. While the court respects the Tenth Circuit's Intervention Ruling , SUWA's contention does not appear to be in harmony with it.

Under Tenth Circuit precedent, one panel cannot overrule another panel; nor may a panel overrule an en banc ruling. Burlington N. & Santa Fe Ry. Co. v. Burton , 270 F.3d 942, 947 (10th Cir. 2001) (citing United States v. Morris , 247 F.3d 1080, 1085 (10th Cir. 2001) ) (stating a panel "cannot overrule the judgement of another panel of this court absent en banc reconsideration or a superseding contrary decision by the Supreme Court"); see also United States v. Goines , No. 20-3183, 2021 WL 4544098 (10th Cir. Oct. 5, 2021) (citing United States v. Manzanares , 956 F.3d 1220, 1225 (10th Cir. 2020) ) (same). Because an en banc panel has concluded SUWA does not have a per se right to intervene in R.S. 2477 cases, the court does not read Kane County (1) as establishing a contrary ruling.⁶ Moreover, Kane County (1) is distinguishable from this case. Accordingly, the court again denies SUWA intervention as of right.

BACKGROUND

This court has been assigned Kane County (1) , which was filed in 2008, and Kane County (2) , which was filed in 2010. Both cases involve R.S. 2477 road issues. In 2013, this court also was assigned to do case management⁷ on about twenty other R.S. 2477 cases pending in this district (the "Road Cases"). See Case Mgmt. Order (ECF No. 78).⁸ Throughout all of this litigation, this court has had interaction with SUWA. It knows of SUWA's actions from the time it first sought to intervene in these R.S. 2477 road cases, which knowledge informs this decision.

STANDING

I. PIGGYBACK STANDING

" ‘One essential aspect of [a court's jurisdiction] is that any person invoking the power of a federal court must demonstrate standing to do so.’ " Virginia House of Delegates v. Bethune-Hill , ––– U.S. ––––, 139 S. Ct. 1945, 1950, 204 L.Ed.2d 305 (2019) (quoting Hollingsworth v. Perry , 570 U.S. 693, 704, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013) ). Thus, "[a]ny party, whether original or intervening, that seeks relief from a federal court must have standing to pursue its claims" or defenses. Dillard v. Chilton Cnty. Comm'n , 495 F.3d 1324, 1330 (11th Cir. 2007). With respect to a person seeking entry as an intervenor, the United States Supreme Court has clarified that "[f]or all relief sought, there must be a litigant with standing.... Thus, at the least , an intervenor of right must demonstrate Article III standing when it seeks additional relief beyond that which the [original party] requests." Town of Chester, N.Y. v. Laroe Estates, Inc. , 581 U.S. 433, 137 S. Ct. 1645, 1651, 198 L.Ed.2d 64 (2017) (emphasis added).

In the Intervention Ruling , the majority addressed whether piggyback standing was still permitted, such that SUWA could " ‘piggyback’ upon the standing of [the United States] to satisfy the standing requirement." Dillard , 495 F.3d at 1330. The majority distinguished prior Tenth Circuit and Supreme Court cases, and concluded that piggyback standing is still allowed, as long as an intervenor does not seek relief different from the original party. Kane County (1) , 928 F.3d at 886–87. Because the United States represented in Kane County (1) that it was seeking "retention of the maximum amount of property" and "the smallest [road] widths it can based on the historical evidence," the majority concluded SUWA and the United States were seeking the same relief. Id. at 887 (quotations, citations, and alteration omitted). Accordingly, the majority held that SUWA had satisfied the standing requirements.

Based on the Intervention Ruling , as long as SUWA does not seek relief different from the United States, SUWA also has piggyback standing in Kane County (2).

II. ARTICLE III – CONSTITUTIONAL STANDING

A. Majority's Conclusion in Kane County (1)

The majority in the Intervention Ruling also concluded that SUWA had "establish[ed] its own independent standing." Intervention Ruling , 928 F.3d at 888. For constitutional standing, a party must 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.

Id. (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ).

The majority found that SUWA had "established an imminent injury" because the plaintiffs in Kane County (1) are "seek[ing] to double the width of" two dirt roads and "more than double the width" of a third road. The majority then concluded:

(1) "Wider roads will likely require realignments or improvements, such as grading or paving."

(2) "Such widening and improvement of the roads in a scenic area would almost inevitably increase traffic, diminishing the enjoyment of the nearby natural wilderness," and

(3) These injuries were not speculative because a project that realigns, widens, and significantly improves a road "accommodate[s] large increases in future traffic"

Id. at 888 (quotations and citations omitted). Each point made by the majority had as its premise that the State and County were seeking to make the roads wider.

A word often is susceptible to multiple meanings in the English language. It appears that the majority envisioned something different than what is before this court in Kane County (1) . In the underlying Kane County (1) case, this court concluded that the scope of the rights-of-way for three roads was wider than the travel surfaces of those roads. Kane Cnty., Utah (1) v. United States , No. 2:08-CV-00315, 2013 WL 1180764, at *64–65 (D. Utah Mar. 20, 2013), rev'd and remanded sub nom. Kane Cnty., Utah v. United States , 772 F.3d 1205 (10th Cir. 2014). This court's opinion, however, did not increase the travel surface of the three roads. Instead, the width at issue in the underlying case pertained to the room needed to do the following:

maneuver equipment, repair culverts, clear vegetation, obtain fill, and divert water to maintain the roads to their present travel surface. [Such room] further allows for shoulders along the road for emergency pull-offs and room to address any future

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