Kane County v. United States

94 F.4th 1017

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 4, 2024
• Docket: 22-4087
• Status: Published

Opinion

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. Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 2

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), 928 F.3d 877, 882 (2019), cert. denied, 141 S. Ct.

1283, 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, 461 U.S. 273, 286 (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, 285 P. 646, 648 (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, 928 F.3d at 882 (citing 43 U.S.C. § 1769(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), 425 F.3d 735, 747 (10th Cir. 2005).

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F.3d 1205, 1224 (10th Cir. 2014) (quoting S. Utah Wilderness All. v. Bureau of

Land Mgmt. (SUWA v. BLM), 425 F.3d 735, 741 (10th Cir. 2005)), cert. denied,

577 U.S. 922 (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)), 606 F. Supp. 3d 1138 (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, 928 F.3d at 882,

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., 997 F.2d 803, 805 (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,

928 F.3d at 889 (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,

2009 WL 959804, 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.” Id. 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. 6 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 7

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), 597

F.3d 1129, 1133 (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.” Id. 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. Id. at 1135.

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

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.”

Id. (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.” Id. We

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

of-way “in light of the pre-1976 uses.” Id. at 1223.

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, 928 F.3d at

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

a party defendant. Id. 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

id. 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.” Id. at 895; see id. at 892 (“When a would-be

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

adequate representation.”) (quoting Bottoms v. Dresser Indus., Inc., 797 F.2d

869, 872 (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.” Id. at 894. We

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

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

factors.” Id. (quoting San Juan Cnty. v. United States, 503 F.3d 1163, 1229

(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 928 F.3d at 893 (“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.” Id. at 895. 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., 295 F.3d 1111, 1112 (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) 10 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 11

pointing to the United States’ opposition to SUWA’s intervention motion. Id.

(citing San Juan Cnty., 503 F.3d at 1230 (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.,

573 F.3d 992, 997 (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, 255 F.3d 1246, 1256 (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.’” 928 F.3d at 895 (cleaned up). This interest, we observed, was “an interest that SUWA certainly doesn’t share.” Id. 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. Id. 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.” Id.

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

SUWA’s motion to intervene. Id. at 897. 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.” Id. 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.” Id. 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, 597 F.3d at 1135. 13 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 14

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, 333 F.R.D. 225,

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, 928 F.3d at 886 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 28 U.S.C. § 1292(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, 928 F.3d at 889. 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). 16 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 17

SUWA relied on in its fourth intervention motion. See id. at 884 (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.” Id. at 890.

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, 928 F.3d at 894.

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

way exists at all.” Id. at 884; accord Kane I, 597 F.3d at 1134 (quoting San

Juan Cnty., 503 F.3d at 1228 (Ebel, J., concurring in part, and dissenting in

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

Kane III, 928 F.3d at 884. 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.” Id. Thus, step one concerns title, and steps two and three,

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

425 F.3d at 768 (applying state law to decide title); Kane III, 928 F.3d at 884

(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, 425

F.3d at 771 (“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,

928 F.3d at 893 (quoting San Juan Cnty., 503 F.3d at 1229 (Ebel, J., concurring

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

pre-1976 use.” Id. 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, 642 P.2d 750,

754 (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.”

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

14 See, e.g., Kane Cnty. v. United States, No. 08-cv-00315, 2011 WL 2489819, 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 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 19

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, 848 F.2d 1068, 1083 (10th Cir. 1988), overruled on other

grounds, Vill. of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970 (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, 928 F.3d at 884. 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.” Id. at 894. 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. 848 F.2d at 1084. 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, 928 F.3d at 884 & 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 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 20

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.” Id. (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.” Id. (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, 75 F.4th 1132, 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.

20 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 21

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 Id. 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., 604 F.3d 1192, 1198 (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 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 22

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, 404 U.S. 528, 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, 597 U.S. 179, 195

(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, 578 F.2d 1341, 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, 797 F.2d at 872. 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.” Id. at 197 (quoting 7C Wright, A. Miller, & M. Kane, Federal

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

22 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 23

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, 877 F.3d 1157, 1168 (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, 255 F.3d at 1256. “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.” Id.

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

23 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 24

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 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 25

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.

928 F.3d at 894.

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,

255 F.3d at 1256); see also Clinton, 255 F.3d at 1256 (“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., 425 F.3d at 747. “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, 848 F.2d at 1083 (quoting Big Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148, 158 (Utah 1946); and then citing Nielson v. Sandberg, 141 P.2d 696, 701 (Utah 1943) (denoting that an easement is limited to the original use for which it was acquired)). 25 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 26

the property at issue in R.S. 2477 litigation “is public land, public interests are

involved.” Kane III, 928 F.3d at 894 (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., 503 F.3d at 1167

(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 54 U.S.C. § 320301(a) (authorizing the President to

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

Government”); Proclamation No. 6920, 61 Fed. Reg. 50,223, 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, 928 F.3d at 896.

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,

26 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 27

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.” 928 F.3d at 895 (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). Id. 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 . . . .” Id. 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. 581 U.S. 433, 435 (2017) (emphasis added).

27 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 28

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

“conflicting interests” in the scope determination. 928 F.3d at 895. 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.” 503 F.3d at 1207;

see also Kane I, 597 F.3d at 1135 (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, 928 F.3d at 895, 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.

28 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 29

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, 597 U.S. at 197; see

id. at 198 (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, 41 F.4th 767, 777 (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, 29 F.4th 299,

308-09 (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, 749 F.3d 339, 346 (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

29 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 30

“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, 558 F.2d 861, 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.” 928 F.3d at 895. 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. Id. at

896–97 (cleaned up); see id. at 894 (“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, 255 F.3d at 1254)). 21

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

would have rebutted it. 928 F.3d at 895. Because we have concluded that no presumption applies in this case, we need not consider whether SUWA could overcome such a presumption. 30 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 31

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

31 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 32

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., 503 F.3d at 1197 (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. 597 F.3d at 1135; accord Kane III,

928 F.3d at 894 (“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

32 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 33

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

33 Appellate Case: 22-4087 Document: 010111008938 Date Filed: 03/04/2024 Page: 34

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), 928 F.3d 877 (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, 787 F.3d 918, 921 (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, 503 F.3d 1163, 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, 950 F.3d 1323, 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).