Kane County, Utah v. United States

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 27, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

KANE COUNTY, UTAH,

Plaintiff - Appellee,

and

THE STATE OF UTAH,

Intervenor Plaintiff - Appellee,

v. No. 18-4122
(D.C. No. 2:08-CV-00315-CW)
UNITED STATES OF AMERICA, (D. Utah)

Defendant - Appellee.

------------------------------

SOUTHERN UTAH WILDERNESS
ALLIANCE; THE WILDERNESS
SOCIETY,

Movants - Appellants.
_________________________________

ORDER
_________________________________

Before TYMKOVICH, Chief Judge, BRISCOE, LUCERO, HARTZ, HOLMES,
BACHARACH, PHILLIPS, MORITZ, EID, and CARSON, Circuit Judges. *
_________________________________

*
The Honorable Scott M. Matheson and the Honorable Carolyn B. McHugh are
recused and did not participate in the consideration of the rehearing petitions.
 This matter is before the court on the Petition by United States of America for

Rehearing En Banc, and Appellees Kane County, Utah and State of Utah’s Petition for

Panel Rehearing and Request for En Banc Rehearing. Appellants have filed a

consolidated response to both petitions.

The Utah Appellees’ request for panel rehearing is denied by a majority of the

original panel members. Chief Judge Tymkovich would grant panel rehearing.

Both petitions and the response were transmitted to all non-recused judges of the

court who are in regular active service, and a poll was called. Because an equal number

of participating judges voted against rehearing as voted for it, the requests for en banc

rehearing are denied. See Fed. R. App. P. 35(a) (“[a] majority of the circuit judges who

are in regular active service” may order en banc rehearing).

Chief Judge Tymkovich, as well as Judges Hartz, Holmes, Eid and Carson would

grant en banc rehearing. Judge Phillips has filed a separate concurrence in the denial of

en banc rehearing, which Judge Briscoe joins. Chief Judge Tymkovich has written

separately in dissent. Judges Hartz and Holmes join in Part II of the dissent, and Judges

Eid and Carson join the dissent in full.

Entered for the Court,

CHRISTOPHER M. WOLPERT, Clerk

2
No. 18-4122, Kane County, Utah, et al. v. United States

PHILLIPS, Circuit Judge, joined by BRISCOE, Circuit Judge, concurring in the denial

of rehearing en banc.

This case fails the standard governing en banc consideration. See Fed. R. App. P.

35(a)(1) and 10th Cir. R. 35.1(A). Our local rule directs us that “[a] request for en banc

consideration is disfavored[,]” and that “[e]n banc review is an extraordinary procedure

intended to focus the entire court on an issue of exceptional public importance or on a

panel decision that conflicts with a decision of the United States Supreme Court or of this

court.” 10th Cir. R. 35.1(A).

In this case, the en banc dissent contends that the panel decision conflicts with

controlling precedent. Obviously, this requires a greater showing than that the en banc

dissenters would have ruled differently than did the panel. 1 With this in mind, I will

discuss how the panel-majority’s opinion fits well within controlling precedents. In fact,

as will be seen, much of the panel-majority’s opinion is compelled by binding precedent,

and the remainder properly rested with the panel to decide.

I. Panel Rulings Alleged to Contravene Supreme Court and Tenth
Circuit Precedents

A. Standing

1
In this regard, we must be mindful to filter out any attempts to reargue our earlier
precedents. Here, that is particularly important to remember when encountering the en
banc dissent’s discussion of San Juan County v. United States, 503 F.3d 1163 (10th Cir.
2007) (en banc).
 In Kane County v. United States (Kane III), 928 F.3d 877 (10th Cir. 2019), the

case now before us, the panel majority concluded that the Southern Utah Wilderness

Association (SUWA) had established standing to seek intervention as of right under

Fed. R. Civ. P. 24(a)(2). The panel ruled that SUWA had met the standing requirement in

two separate ways—piggyback standing and Article III standing. Either suffices.

1. Piggyback Standing

Applying the rule announced in Town of Chester v. Laroe Estates, Inc., 137 S. Ct.

1645 (2017), the panel majority first ruled that SUWA had established piggyback

standing 2 to proceed with its motion to intervene. Kane III, 928 F.3d at 886–87. The

panel acknowledged that the availability of piggyback standing had narrowed from when

we applied that doctrine in San Juan County v. United States, 503 F.3d 1163, 1172 (10th

Cir. 2007) (en banc). Specifically, the panel majority addressed that point as follows:

But ten years later [after San Juan County], the Supreme Court modified our
“piggyback standing” rule, holding that an intervenor as of right must “meet
the requirements of Article III if the intervenor wishes to pursue relief not
requested” by an existing party. Town of Chester, . . . 137 S. Ct at 1648[.] In
that case, the record was ambiguous whether the intervening plaintiff was
seeking a different form of relief from the existing plaintiff: a separate award
of money damages against the same defendant in its own name. Id. at 1651–
52. Because “[a]t least one [litigant] must have standing to seek each form of
relief requested,” the Court remanded for the circuit court to determine
whether the intervenor, in fact, sought “additional relief beyond” what the
plaintiff requested. Id. at 1651.

2
This term refers to the situation in which a proposed intervenor relies on the
Article III standing of a party to a lawsuit. See United States v. Colo. & E. R.R., 882 F.3d
1264, 1268 (10th Cir. 2018) (“NDSC could not ‘piggyback’ on the standing of one of the
described parties to the Consent Decree because there was no current case or controversy
pending before the court on the part of those parties[.]”).
2
 Citing Town of Chester, Kane County argues that SUWA cannot simply
invoke the United States’ Article III standing, contending that SUWA and
the United States are pursuing different relief. We disagree with that view.
After all, the United States has informed us that it seeks “retention of the
maximum amount of property” and will argue for “the smallest widths [it]
can based on the historical evidence,” the same relief that SUWA seeks. See
United States’ Resp. Br. at 22, 32; Oral Arg., at 18:30.

Kane III, 928 F.3d at 886–87 (second, third, and fourth alterations in original) (footnotes

omitted). As seen, the Kane III panel majority applied piggyback standing in accordance

with Town of Chester. Piggyback standing was available because the United States and

SUWA seek the same relief.

The en banc dissent disputes the panel-majority’s ruling that SUWA satisfied

piggyback standing under Town of Chester. First, the en banc dissent asserts that the

panel majority “held that SUWA was excused from establishing standing, or, in the

alternative, that it had adequately done so.” En banc dissent at 3 (citing Kane III, 928

F.3d at 886–89). Certainly, the panel majority ruled that SUWA could piggyback the

United States’ Article III standing. But the panel majority correctly applied the Town of

Chester standard in doing so. Second, the en banc dissent correctly asserts that under

Town of Chester, “where an intervenor pursues separate relief from a party, it must

establish standing under Article III.” Id. at 4 (citing Town of Chester, 137 S. Ct at 1648)

(emphasis removed). But the en banc dissent wrongly ascribes to the panel majority a

position it never took, saying that “[a]ccording to the majority, SUWA’s interests are thus

similar enough to the United States’ to avoid having to establish its own standing under

Town of Chester.” Id. at 6. In fact, the block quote above shows that the panel majority

disagreed with Kane County’s argument that “SUWA and the United States are pursuing

3
different relief.” Kane III, 928 F.3d at 887. After reciting how the United States

characterized its own interest, the panel majority concluded that the United States was

seeking “the same relief that SUWA seeks.” Id. (emphasis added). This being so, the

panel majority allowed SUWA to piggyback on the United States’ Article III standing.

Id. The en banc dissent errs in saying that the panel majority read Town of Chester as

approving piggyback standing when an intervenor’s and party’s interests are “similar

enough.” See en banc dissent at 6. Third, the en banc dissent claims that the majority

read Town of Chester as embracing a “more expansive point” 3 than permitted by

Hollingsworth v. Perry, 570 U.S. 693, 704 (2013), and two of this court’s decisions 4

3
Immediately before this statement, the en banc dissent cites Town of Chester as
“holding merely that ‘at the least, an intervenor of right must demonstrate Article III
standing when it seeks additional relief beyond which the plaintiff requests.’” En banc
dissent at 4–5. The Court’s point preceding these quoted words was that just as with
plaintiffs and multiple plaintiffs, “[a]t least one plaintiff must have standing to seek each
form of relief requested in the complaint.” Town of Chester, 137 S. Ct. at 1651. The
Court next simply states that “[t]he same principle applies to intervenors of right.” Id.
That gives the en banc dissent no basis to say that the Kane III panel majority reads Town
of Chester expansively.
4
In particular, the en banc dissent cites two Tenth Circuit cases. First, it cites
Colorado & Eastern Railroad, 882 F.3d at 1269. En banc dissent at 5. Unlike
Hollingsworth at least, Colorado & Eastern was decided after Town of Chester, in fact by
eight months. But Colorado & Eastern had no reason to address Town of Chester,
because Colorado & Eastern raised no piggyback-standing issue. Colo. & E. R.R., 882
F.3d at 1269. Instead, the intervenor-appellant there asserted standing solely under
Article III. Id. Facing that issue, we ruled that the intervenor-appellant had failed to
establish Article III standing, reasoning that “the record conclusively establishes that the
relief requested by NDSC will not redress any assumed injury to it caused by C & E[.]”
Id. Second, it cites Safe Streets Alliance v. Hickenlooper, 859 F.3d 865, 912 (10th Cir.
2017). En banc dissent at 5. That case came two days after Town of Chester and did not
cite it. Instead, Safe Streets Alliance cited Hollingsworth as abrogating San Juan
County’s expansive piggyback-standing rule. Safe Streets All., 859 F.3d at 912; Cf. San
Juan Cty., 503 F.3d at 1172 (holding “that parties seeking to intervene under Rule 24(a)
4
“establishing that any person seeking relief from a federal court must demonstrate

standing to do so.” En banc dissent at 5 (next quoting Hollingsworth in a parenthetical for

the proposition that “[o]ne essential aspect of [the powers conferred by Art. III] is that

any person invoking the power of a federal court must demonstrate standing to do so”).

But Hollingsworth must be read in accordance with Town of Chester, which was decided

four years later. Fourth, the en banc dissent mixes into its Article III standing analysis its

Rule 24(a)(2) adequacy-of-representation analysis. Id. at 6-7. The two analyses do not

mix this way. For piggyback standing, Town of Chester tells us exactly what to consider

here—that is, whether the intervenor is seeking the same relief as a party is. 137 S. Ct. at

1651. By contrast, the Rule 24(a)(2) adequacy-of-representation analysis looks not only

to the degree of similarity of the sought interests but to the degree the party will assert

them. See San Juan Cty., 503 F.3d at 1206. The panel majority applied the piggyback-

standing requirements in accordance with Town of Chester, and in doing so it

contravened neither Supreme Court nor Tenth Circuit law.

2. Article III Standing

Separate and apart from piggyback standing, the majority panel ruled that SUWA

had shown its own standing under Article III. In this regard, the majority recognized that

or (b) need not establish Article III standing ‘so long as another party with constitutional
standing on the same side as the intervenor remains in the case’”). The panel majority
acknowledged the demise of San Juan County’s broad piggyback standing rule and
turned to Town of Chester. See Kane III, 928 F.3d at 887. But just as Safe Streets Alliance
needed to acknowledge and apply Hollingsworth, so too did the panel majority here need
to acknowledge and apply Town of Chester.

5
SUWA needed to show “(1) an injury in fact that is (a) concrete and particularized and

(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to

the challenged conduct; and (3) the injury can likely be redressed by a favorable

decision.” Kane III, 928 F.3d at 888 (citing Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)).

In concluding that SUWA had met these requirements, the panel majority turned

to the primary case the en banc dissent claims the majority’s decision contravenes—San

Juan County. The panel majority noted that “[h]ere, as in San Juan County, it is

‘indisputable that SUWA’s environmental concern is a legally protectable interest.’”

Kane III, 928 F.3d at 888 (citing San Juan Cty., 503 F.3d at 1199). 5 We noted that “[i]n

San Juan County, we recognized that ‘if the County prevails, it will then pursue opening

the road to vehicular traffic that SUWA has been trying to prevent.’” Id. (citing San Juan

Cty., 503 F.3d at 1200). We explained that in San Juan County we had seen “nothing

speculative about the impact on SUWA’s interests if the County prevails in its quiet-title

action” and further noted that San Juan County had stated that the opening of roads was

the whole point of the lawsuit. Kane III, 928 F.3d at 888 (quoting San Juan Cty., 503

F.3d at 1201–02) (internal quotation marks omitted). And we “acknowledge[d] that San

5
In a footnote, the panel majority stated that “[t]hough this portion of the opinion
concerned the potential impairment of SUWA’s interests under Rule 24(a)(2), other
courts have recognized that ‘any person who satisfies Rule 24(a) will also meet Article
III’s standing requirement.’ Roeder v. Islamic Republic of Iran, 333 F.3d 228, 233 (D.C.
Cir. 2003); see also Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 946 (7th Cir.
2000) (‘Any interest of such magnitude as to support Rule 24(a) intervention of right is
sufficient to satisfy the Article III standing requirement as well.’) (internal quotations and
alterations omitted).” Kane III, 928 F.3d at 888 n.14.
6
Juan County involved the possibility of reopening closed roads, as opposed to widening

already-opened roads, as here—but we view both as sufficient degrees of impact.” Kane

III, 928 F.3d at 888–89. On this point, we observed that “[a] 24–foot road allows more

traffic than a 10– or 12–foot road (in the case of North Swag and Swallow Park roads),

and a 66–foot road allows more traffic than a 24– to 28–foot road (in the case of

Skutumpah Road).” Id. at 889.

In my view, the en banc dissent does not fully credit that the seven-judge majority

in San Juan County ruled that SUWA had established a protectible interest under

Fed. R. Civ. P. 24(a)(2). The Kane III panel majority merely followed in its wake.

B. Right to Intervene Under Fed. R. Civ. P. 24(a)(2)

1. Title or Property-Rights Dispute

The en banc dissent describes the underlying suit as one solely involving property

law, an ownership dispute between the governmental parties. En banc dissent at 1–2, 7, 9.

From this, it concludes that “[a]s a quiet title action, this dispute focuses solely on the

various ownership rights the parties have in the disputed rights-of-way. SUWA has no

role in such litigation because it lacks any independent ownership claim in the disputed

property.” Id. at 9. From this, I gather that the dissent concludes that environmental

groups (or any others lacking an ownership claim) can never intervene in R.S. 2477 suits.

See id. (saying that “[t]he nature of the suit [described as a property dispute] further

compels this result”—that SUWA cannot show standing under Article III). This ignores

the San Juan County’s seven-judge majority’s two-sentence statement that “[w]e

recognize that SUWA does not claim that it has title to Salt Creek Road, even though this

7
is a quiet-title suit. But Rule 24(a)(2) does not speak of ‘an interest in the property’;

rather, it requires only that the applicant for intervention ‘claim[ ] an interest relating to

the property or transaction which is the subject of the action.’” 503 F.3d at 1200 (quoting

Fed. R. Civ. P. 24(a)(2)) (alterations in original).

In addition, as mentioned, the seven-judge majority in San Juan County agreed

that SUWA had satisfied the first portion of Fed. R. Civ. P. 24(a)(2)—namely, that in that

R.S. 2477 suit involving the Salt Creek Road, SUWA had “claim[ed] ‘an interest relating

to the property or transaction which is the subject of the action and . . . is so situated that

the disposition of the action may as a practical matter impair or impede [the movant’s]

ability to protect [its] interest.’” See 503 F.3d at 1201. I agree that six judges would have

held differently. Id. at 1210 (Kelly, J., concurring 6) (concluding that “SUWA ha[d] not

‘asserted an interest’” relating to the property at issue in the lawsuit); id. (McConnell, J.,

concurring 7) (agreeing with the three-judge lead opinion’s “conclusion that the district

court correctly denied SUWA’s motion to intervene, but . . . not agree[ing] with its

reasoning”). In view of the San Juan County split, I do not see how the Kane III panel-

majority’s opinion would contravene San Juan County.

Next, the en banc dissent says that the panel majority contravened Kane County v.

United States (Kane I), 597 F.3d 1129 (10th Cir. 2010). En banc dissent at 3, 11 n.5, 12.

6
Joined by Chief Judge Tacha and Judges Porfilio, O’Brien, McConnell, and
Holmes.
7
Joined by Chief Judge Tacha and Judges Porfilio, Kelly, O’Brien, and Holmes.

8
But as the panel majority detailed in Kane III, the Kane I panel declined to consider

whether the United States had adequately represented SUWA on the scope of the rights-

of-way (as opposed to the binary determination of title). It declined for one reason—that

SUWA had failed to preserve the argument. 928 F.3d at 883 (citing Kane I, 597 F.3d at

1135). And on that point, the Kane I panel—as had the seven-judge majority in San Juan

County—acknowledged that SUWA may later try again to intervene on scope grounds

despite having waived the ability to do so in that particular appeal. See Kane I, 597 F.3d

at 1135 (ruling that SUWA “has failed to establish, at this stage of the litigation, that the

federal government will not adequately protect its interest”); San Juan Cty., 503 F.3d at

1207 (noting that this denial of SUWA’s motion to intervene “does not forever foreclose

SUWA from intervention” and that “[i]f developments after the original application for

intervention undermine the presumption that the Federal Defendants will adequately

represent SUWA’s interest, the matter may be revisited”).

2. Adequacy of Representation

On this question, the seven-judge majority in San Juan County split into two

opinions. In Part IV(B) of Judge Hartz’s three-judge lead opinion, he concluded that the

United States would adequately represent SUWA’s interests. See id. at 1203–07. In Judge

Ebel’s four-judge opinion, he concurred in all but this part of Judge Hartz’s opinion. See

id. at 1226–27. As mentioned, the remaining six judges concurred in judgment but did

not comment on the adequacy-of-representation issue. Thus, because blocs of three-

judges and six-judges concluded that SUWA had not shown that it was entitled to

9
intervene (for different reasons), the Judge Hartz three-judge opinion became the lead

opinion on the adequacy-of-representation issue.

The Kane III panel majority did not contravene Kane I, which had denied SUWA

intervention on adequacy-of-representation grounds. As mentioned, in Kane I, the court

raised the possibility that the adequacy-of-representation result might hinge on SUWA’s

having relied on scope as well as title, but the panel ruled that SUWA had waived that

issue on appeal. So Kane I obviously did not take a view that San Juan County somehow

rendered the scope issue as off limits.

Nor could Kane I have taken such a view. The three-judge lead opinion in San

Juan County runs forty pages, about four of which pertain to the adequacy-of-

representation issue. In the lead opinion, Judge Hartz looked to the amended complaint’s

claims, including one for declaratory judgment, and he noted that the district court when

denying intervention to SUWA had “stated that ‘the pleadings define the case in a very

narrow fashion[:] the existence or non-existence of a right-of-way and its length and its

breadth[.]’” 8 San Juan Cty., 503 F.3d at 1206. He then held that “on the record before us,

SUWA will be adequately represented by the Federal Defendants with respect to the

8
The en banc dissent contends that the panel majority “reads the lead opinion
from San Juan County as consistent with its conclusion that the scope of the rights-of-
way was not at issue in that case.” En banc dissent at 11 n.5. In opposition, the en banc
dissent quotes a portion of San Juan referencing a portion of the amended complaint in
San Juan alleging that “the right-of-way must be sufficient in scope for vehicle travel[.]”
Id. (quoting San Juan Cty., 503 F.3d at 1171). I agree the amended complaint alleged this
and that scope ultimately needed determined, but the amended complaint’s allegation
does not refute the above-quoted portions of San Juan’s lead opinion.

10
quiet-title claim.” Id. Presumably speaking to that record, which becomes important, he

“recognize[d] that SUWA and the NPS have had their differences over the years

regarding Salt Creek Road[,]” but emphasized that “when SUWA filed its application to

intervene, the Federal Defendants had only a single litigation objective—namely,

defending exclusive title to the road—and SUWA could have had no other objective

regarding the quiet-title claim.” Id. (emphasis added). He continued along this line when

noting that “[t]he Federal Defendants have displayed no reluctance, at least so far as the

record before us shows, to claim full title to Salt Creek Road.” Id. (emphasis added). He

noted that “SUWA has given us no reason to believe that the Federal Defendants have

any interest in relinquishing to the County any part of the federal title to the road.” Id. at

1207 (emphasis added). And perhaps most importantly, he also noted that though “the

Federal Defendants may not wish to exercise their authority as holder of title in the same

way that SUWA would wish, 9 the district court did not treat such exercise of authority as

being at issue in this litigation when SUWA’s application for intervention was rejected.”

Id. 1206–07 (footnote and emphasis added).

Judge Hartz’s three-judge lead opinion addressed Judge Ebel’s four-judge opinion

(which had dissented on the adequacy-of-representation issue) in just one respect. Judge

Hartz stated that “we are not inclined to infer from the Federal Defendants’ opposition to

intervention that they will fail to vigorously resist the claim to an RS 2477 right-of-way.”

Id. at 1206. He did not comment on Judge Ebel’s extensive discussion about how the

9
This sounds to me as a recognition that the United States and SUWA might well
disagree on the scope of any rights-of-way.
11
United States “may not adequately represent” SUWA’s interest on the scope of the right-

of-way. See Id. at 1227 (Ebel, J., concurring in part and dissenting in part).

With this background in San Juan County, it is no wonder the Kane I panel, after

reviewing the San Juan County case, commented that “San Juan County does not

mandate a particular outcome in this case[.]” 597 F.3d at 1134. The panel noted that

SUWA had not argued in the district court for a more nuanced “determination

encompassing ‘not only whether there [wa]s any right-of-way, but also the nature and

scope of that right-of-way if it d[id] exist.’” Id. (quoting San Juan Cty., 503 F.3d at 1228

(Ebel, J., concurring in part and dissenting in part)). Though SUWA, upon questioning at

oral argument in Kane I, argued that it “and the United States might disagree as to the

potential scope of Kane County’s purported rights-of-way[,]” the court held that

argument waived “for purposes of this appeal[.]” Id. at 1335.

For the reasons given, I respectfully submit that the Kane III majority panel did

not contravene any Supreme Court or Tenth Circuit caselaw, which defeats the present

request for en banc consideration.

12
No. 18-4122, Kane County, Utah, et al. v. United States

TYMKOVICH, Chief Judge, joined as to Part II by HARTZ and HOLMES, Circuit

Judges, and joined in full by EID and CARSON, Circuit Judges, dissenting from the

denial of rehearing en banc.

This case should be reheard en banc. The panel majority’s decision rests on an

overbroad understanding of Article III standing and extends a right of intervention to

third parties who have no legal interest at issue in the dispute. In doing so, the majority

contravenes Supreme Court precedent and that of this court, and thus should be corrected.

Moreover, the decision opens the intervention doors to parties that wish to disrupt

property disputes between the United States and state and local governments—a common

occurrence in the Western United States—and make them proxy battlegrounds for the

airing of specialty interests.

This case is one of many regarding the scope of unadjudicated road claims across

the American West.1 The Southern Utah Wilderness Alliance (SUWA) wishes to

intervene and shape the litigation; Utah and the United States assert SUWA has no

interest that will not be adequately represented by the United States. Although this court

has become accustomed to interest group participation in cases regarding the

administration of public lands, this is no such case. Instead, all that is presently before

the court is a property dispute that will be resolved by looking to the pre-1976 uses of the

1
As the United States asserts, it currently faces “more than 12,000” R.S.
2477 claims in Utah alone. Pet. by United States for Reh’g En Banc 8.
lands at issue. After adjudication of the property claims, when and if the court is

presented with the question of how best to administer such property, the logic and

rationale of the majority’s opinion may prove sufficient to permit SUWA’s participation.

But to extend such reasoning here contravenes established principles of standing and

intervention. See San Juan Cty. v. United States, 503 F.3d 1163, 1211 (10th Cir. 2007)

(McConnell, J., concurring) (“As citizens and users, SUWA’s members have enforceable

statutory rights regarding how the land is administered if the United States owns the land,

but they have no legal rights regarding whether the United States owns the land.”).

The instant suit is a R.S. 2477 roadway case2—an ownership dispute between the

United States on the one hand and the State of Utah and Kane County on the other. The

underlying controversy has a long history, but all that presently remains is a

determination of the width and length of three rights-of-way that Kane County and the

State of Utah possess. See Kane Cty. v. United States, 772 F.3d 1205, 1223 (10th Cir.

2014) (Kane II).

The question is one of property law. And the answer turns exclusively “on the

2
In 1866, Congress granted public access to unreserved public lands by
providing that the “right of way for the construction of highways over public lands,
not reserved for public uses, is hereby granted.” Mining Act of July 26, 1866, ch.
262, § 8, 14 Stat. 251, 253 (1866) (codified at 43 U.S.C. § 932). This statute is
commonly referred to as “R.S. 2477.” In 1976, Congress repealed this broad grant,
but grandfathered in all “valid” rights of way in existence at the time. See Pub. L.
No. 94-579, §§ 701(a), 706(a), 90 Stat. at 2786, 2793. Accordingly, those claiming
a right of way may sue for quiet title to the property under the Quiet Title Act, as
the Utah entities did here.

2
historic use of these roads by the public for the period required under Utah law prior to

1976.” Kane Cty. v. United States, No. 2:08-CV-315, 2009 WL 959804, at *3 (D. Utah

Apr. 6, 2009); see also Kane II, 772 F.3d at 1223.

In 2008, Kane County first sued the United States under R.S. 2477 and the Quiet

Title Act to quiet title in fifteen roads that cross federal land, including the three rights-of-

way presently in dispute. Shortly thereafter, SUWA moved to intervene. See Kane Cty.,

2009 WL 959804, at *1. The district court denied SUWA’s motion and this court

affirmed. See Kane Cty. v. United States, 597 F.3d 1129 (10th Cir. 2010) (Kane I). After

a bench trial, the district court held Kane County and the State of Utah proved their

claims with respect to twelve of the roads in question, and it resolved the scope of those

rights-of-way. See Kane Cty. v. United States, No. 2:08-cv-00315, 2013 WL 1180764, at

*62–65 (D. Utah Mar. 20, 2013). The United States appealed the district court’s decision,

and this court reversed in part, leaving the scope of the three rights-of-way currently at

issue as the sole remaining matter pending in this case. Kane II, 772 F.3d at 1223.

Although SUWA does not claim title to the roads, it now again seeks to intervene,

alleging interests and inadequate representation relating to the hypothetical future use of

the three remaining rights-of-way. The district court denied SUWA’s motion. The panel

majority’s opinion reversed. Kane Cty. v. United States, 928 F.3d 877, 887 (10th Cir.

2019) (Kane III). The majority first held that SUWA was excused from establishing

standing, or, in the alternative, that it had adequately done so. Id. at 886–89. The

majority further held that SUWA was entitled to intervene as of right under Federal Rule

3
of Civil Procedure 24(a) because SUWA had shown an interest at risk of being impaired

and that the United States may not adequately represent SUWA’s interests. Id. at 891–96.

The majority’s opinion conflicts with our precedent and that of the Supreme Court

on two issues—standing and intervention.

I. Article III Standing

“Standing is a threshold issue in every case before a federal court.” Phila. Indem.

Ins. Co. v. Lexington Ins. Co., 845 F.3d 1330, 1334 (10th Cir. 2017). The majority’s

opinion enlarges Article III standing in contravention to Supreme Court authority in two

ways. As a threshold matter, it holds SUWA, as an intervening party, need not establish

standing. Kane III, 928 F.3d at 886–87. Then, in the alternative, it finds SUWA

nonetheless cleared this necessary hurdle. Id. at 888–89.

A. Applicability of the Standing Requirement

To intervene, SUWA must establish standing. The majority relies on Town of

Chester v. Laroe Estates, Inc., for the proposition that SUWA need not establish standing

because it seeks the same relief as the United States. See Kane III, 928 F.3d at 887–88

(citing 137 S. Ct. 1645 (2017)). Town of Chester’s holding was a narrow one—where an

intervenor pursues separate relief from a party, it must establish standing under Article

III. See 137 S. Ct. at 1648. But the case assuredly does not hold that where the

intervenor seeks relief similar to the existing parties, it may avoid establishing standing.

See id. at 1651 (holding merely that “at the least, an intervenor of right must demonstrate

Article III standing when it seeks additional relief beyond that which the plaintiff

4
requests” (emphasis added)). The majority’s reading of Town of Chester to embrace this

more expansive point conflicts with case law from the Supreme Court and this court

establishing that any person seeking relief from a federal court must demonstrate standing

to do so. Hollingsworth v. Perry, 570 U.S. 693, 704 (2013) (“One essential aspect of [the

powers conferred by Art. III] is that any person invoking the power of a federal court

must demonstrate standing to do so.”); United States v. Colo. & E. R.R. Co., 882 F.3d

1264, 1269 (10th Cir. 2018) (“Any party, whether original or intervening, that seeks relief

from a federal court must have standing to pursue its claims.”); Safe Streets All. v.

Hickenlooper, 859 F.3d 865, 912 (10th Cir. 2017) (“Rule 24(a)’s provisions cannot

remove the Article III hurdle that anyone faces when voluntarily seeking to enter a federal

court.”).

The majority’s attempt to distinguish these cases falls short. With respect to Colo.

& E. R.R., the majority quotes a description of the district court’s opinion, claiming that

the case is inapposite because there was no “live controversy” between the parties in

Colo. & E. R.R. and here there is. See Kane III, at 887 n.11. This point is not what the

decision on appeal was based on. See Colo. & E. R.R. Co., 882 F.3d at 1269 (“Because

the record conclusively establishes that the relief requested by [the party seeking to

establish standing] will not redress any assumed injury to it . . . we resolve [the] appeal on

that basis.”). With respect to Safe Streets and Hollingsworth, the majority argues the

statements in Safe Streets were merely dicta and that, regardless, Hollingsworth “applied

the piggyback standing rule.” Kane III, at 887 n.11. But nothing in Hollingsworth

5
suggests its statements with respect to standing constitute an affirmation of the piggyback

standing rule. Indeed, this court has already recognized Hollingsworth as abrogating that

rule. See Safe Streets, 859 F.3d at 913.

Accordingly, under Town of Chester, Hollingsworth, and our precedent, SUWA

invariably must establish standing in order to join this suit. In excusing SUWA from this

requirement, the majority performed an end-run around the constitutional limit that

Article III places on the power of the federal courts. Hollingsworth, 570 U.S. at 704.

Even accepting the majority’s premise that standing is excused where an

intervenor seeks similar relief to that of an existing party, the majority’s conclusion still

suffers a fatal inconsistency. To justify its contention that SUWA seeks the same relief as

the United States, the majority concedes that the United States “seeks retention of the

maximum amount of property and will argue for the smallest widths it can based on the

historical evidence”—in other words, “the same relief that SUWA seeks.” Kane III, 928

F.3d at 887. According to the majority, SUWA’s interests are thus similar enough to the

United States’ to avoid having to establish its own standing under Town of Chester. But

this contradicts the majority’s later conclusion that the United States will not adequately

represent SUWA’s interests. See Kane III, 928 F.3d at 898 (Tymkovich, J., dissenting)

(“If SUWA seeks identical relief to the United States—that is, federal retention of the

maximum amount of property—then the United States provides adequate representation

of SUWA’s interests . . . . If SUWA seeks relief different from the United

States—because the government does not, in fact, wish to retain maximum

6
property—then SUWA must demonstrate that it possess standing according to Town of

Chester.”).

Were this a case regarding the administration of the land at issue, as opposed to

merely its ownership, the majority could potentially thread the needle in the manner it

seeks to here. See Kane III, 928 F.3d at 898 n.1 (Tymkovich, J., dissenting). For

example, in administrative cases like the ones cited by the majority, the United States

usually must consider a wide array of interests and engage in extensive balancing. See,

e.g., Doe v. Zucker, No. 117-CV-1005, 2019 WL 111020 (N.D.N.Y. Jan. 4, 2019). This

could lead to the type of symmetry in relief sought, yet asymmetry in ultimate resolution

objectives, that could justify intervention along the lines the majority proposes. But in the

context of a property dispute like the present one, such fine distinctions break down.

B. SUWA’s Standing

Perhaps realizing SUWA must demonstrate standing to intervene, the majority

holds that SUWA established standing. See Kane III, 928 F.3d at 888. That conclusion is

in error. SUWA’s alleged injury is too attenuated and speculative to provide standing

under Article III to participate in this suit regarding the relative property rights of the

United States and the Utah entities.

To establish Article III standing, an intervenor must first show “‘an injury in

fact’—an invasion of a legally protected interest which is (a) concrete and particularized,

and (b) ‘actual or imminent, not conjectural or hypothetical.’” Lujan v. Defs. of Wildlife,

504 U.S. 555, 560 (1992) (citations omitted). Second, there must be a “causal

7
connection between the injury and the conduct complained of—the injury has to be ‘fairly

traceable to the challenged action of the defendant.’” Id. Third, “it must be ‘likely,’ as

opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable

decision.’” Id. at 561.

SUWA’s argument, adopted by the majority, stands on a series of conjectures

regarding hypothetical future land use. To conclude SUWA has standing, one must

assume: “(1) the United States will not zealously defend its title to the relevant roads, (2)

the title adjudication will thus lead to an appreciably different outcome regarding pre-

1976 uses, (3) this appreciable difference will lead Kane County to open the relevant

roads to greater vehicular traffic than it would have otherwise, and finally, (4) the greater

vehicular traffic will, at the margin, cause aesthetic environmental injury to SUWA

members who may return to the particular areas in the future.” Kane III, 928 F.3d at

899–900 (Tymkovich, J., dissenting). This attenuation proves too much.

As the Court found in Clapper v. Amnesty International USA, such a theory of

“future injury is too speculative to satisfy the well-established requirement that threatened

injury must be ‘certainly impending.’” 568 U.S. 398, 401 (2013). In Clapper, the Court

declined to find that human rights, labor, legal, and media organizations had standing to

challenge the Foreign Intelligence Surveillance Act as unconstitutional because the Court

found allegations that the organizations would be subject to the surveillance authorized by

the Act too speculative. The Court noted its reluctance “to endorse standing theories that

require guesswork as to how independent decisionmakers will exercise their judgment.”

8
Id. at 413. The Court’s hesitancy is well-founded and should be applied here to preclude

SUWA from joining this case where its only supposed injury relies on a highly attenuated

chain of possibilities. See Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)

(rejecting environmental organizations’ standing claims where they were similarly

premised on a series of speculation).

The nature of the suit further compels this result. As a quiet title action, this

dispute focuses solely on the various ownership rights the parties have in the disputed

rights-of-way. SUWA has no role as a party in such litigation because it lacks any

independent ownership claim in the disputed property.3 This case does not create any

new property rights, does not concern the administration of the land at issue, and will not

directly result in any physical changes to the subject property. Instead, it concerns solely

what property rights exist in light of pre-1976 uses of the roads at issue. See Kane II, 772

F.3d at 1223–24.

Moreover, any future improvements that Kane County might make that could

significantly affect the surrounding lands will require additional consultation with the

federal government. See S. Utah Wilderness All. v. BLM, 425 F.3d 735, 748–49 (10th

Cir. 2005) (“[E]ven legitimate changes in the character of the roadway require

consultation when those changes go beyond routine maintenance.”). In short, although

3
In reaching this conclusion, I need not, and do not, take the position that an
environmental group “can never intervene” in an R.S. 2477 suit. En banc
concurrence at 7. Nor does anything preclude SUWA’s continued participation as
an amicus curiae in the present suit.

9
SUWA may have valid considerations it wishes to present to whichever party owns the

property at issue regarding how to manage that land, this is not the forum to present these

arguments. The present suit merely concerns which regulator will be the recipient of such

advocacy in the future as the owner of, and therefore the party responsible for

administering, the land.

II. Intervention and the Adequacy of the United States’ Representation

Finally, the majority erred in holding that the United States may not adequately

represent SUWA’s interests.4 Kane III, 928 F.3d at 892. “Even if an applicant satisfies

the other requirements of [Federal Rule of Civil Procedure] 24(a)(2), it is not entitled to

intervene if its interest is adequately represented by existing parties.” San Juan Cty., 503

F.3d at 1203. Where the applicant for intervention has the same objective as one of the

4
I would review the district court’s decision on adequacy of representation
for abuse of discretion. See Kane III, 928 F.3d at 901–02 (Tymkovich, J.,
dissenting) (citing Abeyta v. City of Albuquerque, 664 F.3d 792, 796 (10th Cir.
2011) and Plain v. Murphy Family Farms, 296 F.3d 975, 978 (10th Cir. 2002)).
The majority relies on City of Colorado Springs v. Climax Molybdenum Co. in
concluding this court should review the district court’s decision de novo. Kane III,
928 F.3d at 889. In Climax, this court considered a consecutive motion to
intervene and noted, in dicta, that if it reached the merits of the appeal, the
appropriate standard of review for the district court’s denial of the motion to
intervene as of right would be de novo. See 587 F.3d 1071, 1078 (10th Cir. 2009).
The court never reached the merits. Further, in that case, neither party disputed de
novo review and neither party argued that the motion was properly considered a
motion for reconsideration. For these reasons, I find Climax distinct from the
present case and unpersuasive. Nonetheless, even reviewing the district court’s
decision de novo, I believe SUWA failed to show that the United States may not
adequately represent its interests. Accordingly, I apply, arguendo, that standard of
review here.

10
parties, a “general presumption” exists that representation is adequate. Id. at 1204.

Notably, the majority concluded the United States may not adequately represent SUWA’s

interests despite two prior statements from this court to the contrary. See San Juan Cty.,

503 F.3d at 1204–06; Kane I, 597 F.3d at 1134.

In San Juan County, the judgment of this court denying SUWA the right to

intervene rested, at least in part, on the fact that the United States adequately represented

SUWA’s interest. See 503 F.3d at 1204. In Kane I, this court similarly held that SUWA

had no right to intervene in this case because the United States adequately represented

SUWA’s interest. See 597 F.3d at 1135. Rather than adhering to these precedents, the

majority departs, expressly adopting the reasoning of an opinion that gained only four

judges’ allegiance in San Juan County.5 See Kane III, 928 F.3d at 893–94 (citing San

Juan Cty., 503 F.3d at 1226 (Ebel, J., concurring in part and dissenting in part)).

The majority rests this departure on two prongs. First, it attempts to bifurcate the

issues of title and scope and to cast our prior precedent as relating only to title. See Kane

III, 928 F.3d at 894 (“[T]hough SUWA and the United States had identical interests in the

title determination, they do not on scope.”). This provides no basis for departing from

5
The majority opinion states that it reads the lead opinion from San Juan
County as consistent with its conclusion that the scope of the rights-of-way was not
at issue in that case. See Kane III, 928 F.3d at 893–94. This reading ignores clear
statements to the contrary. See San Juan Cty., 503 F.3d at 1171, 1206 (noting the
County claimed “the right-of-way must be sufficient in scope for vehicle travel”
and stating that “the pleadings define the case in a very narrow fashion [to include]
the existence or non-existence of a right-of-way and its length and its breadth”).

11
San Juan County and Kane I. Contrary to the majority’s characterization of San Juan

County as relating exclusively to title, the district court characterized the issues presented

in that case as relating to “the existence or non-existence of a right-of-way and its length

and its breadth.” San Juan Cty., 503 F.3d at 1206 (emphasis added) (quoting the district

court). Moreover, the majority’s suggestion that the question of scope was not before the

court until now is belied by the fact that, following our denial of SUWA’s attempt to

intervene in Kane I, the district court held a trial and determined the scope of the rights-

of-way in question. As the majority concedes, “scope is inherent in the quiet title

process,” Kane III, 928 F.3d at 894, and as such has always been at issue in this case.

Second, the majority seeks to justify its departure from our precedent by referring

to the change in presidential administration. Although such a change may, in certain

circumstances, warrant intervention, this is not one of them. Simply put, a change in

presidential administration does not affect the adjudication of property ownership. See

Kane III, 928 F.3d at 905 (Tymkovich, J., dissenting). Unlike APA challenges

concerning land use like those raised by the majority, a dispute over land ownership does

not call upon the government to consider the wide array of interests the majority suggests

are brought to bear and which subsequent administrations might weigh differently from

prior ones. To the contrary, scope hinges exclusively on the pre-1976 usage of the roads

in question. See Kane II, 772 F.3d at 1223 (“The scope of an R.S. 2477 right of way is

limited by the established usage of the route as of the date of the repeal of the statute.”).

Any adjustments to scope from the pre-1976 uses must rest on what is “reasonable and

12
necessary . . . in the light of traditional uses to which the right-of-way was put.” Id. at

1223. Present day interests that the United States might consider regarding the land’s use

are not relevant to the scope of the rights-of-way in question. Accordingly, even

following the change in administration, there is no daylight between the United States’

interests and those of SUWA, and the majority’s conclusion that the United States will

not adequately represent those interests is unfounded.6

The APA cases the majority cites fail to disturb this conclusion. In WildEarth

Guardians v. United States Forest Service, this court approved intervention where the

underlying issue concerned regulatory compliance with the National Environmental

Policy Act in approving methane venting from a coal mine. See 573 F.3d 992, 994 (10th

Cir. 2009). In Utah Ass’n of Counties v. Clinton, this court approved intervention where

the underlying issue concerned compliance with NEPA and the Federal Land Policy and

Management Act in the creation of the Grand Staircase Escalante National Monument.

See 255 F.3d 1246, 1248–49, 1256 (10th Cir. 2001). In both, the government conduct at

issue necessarily implicated a “broad spectrum” of interests. WildEarth Guardians, 573

6
SUWA speculates the United States will fail to adequately represent its
interests, relying on statements from the parties that allegedly “support the notion
that the new administration may be more inclined to settle” than the previous one.
SUWA’s Resp. to Pets. for Panel and En Banc Reh’g 5. This fails to account for
the reality that the United States has not settled this case after more than two and a
half years of a new administration, or explain why the parties did not further stay
proceedings after the previous stay expired or why extensive discovery and
depositions have continued in other pending road disputes between the parties. See
Kane III, 928 F.3d (Tymkovich, J., dissenting) at 905–06.

13
F.3d at 996; Utah Ass’n of Counties, 255 F.3d at 1255–56. Neither case warrants the

same result here for the simple reason that the government’s defense of its title in a quiet

title action does not implicate a similarly broad array of interests. Unlike government

decisions concerning how to use and regulate land, defending title only implicates the

government’s interest in maintaining land ownership. Indeed, as the majority concedes,

the United States seeks “‘retention of the maximum amount of property’ and will argue

for ‘the smallest widths it can based on the historical evidence.’” Kane III, 928 F.3d at

888. This aligns the government’s interests with SUWA’s and suffices to show adequate

representation.

As additional justifications, the majority points to the fact that “the United States

opposes SUWA’s intervention motion,” arguing this demonstrates “[the United States]

may not adequately represent SUWA’s interests.” Kane III, 928 F.3d at 895. This was

squarely addressed and dismissed in San Juan County. 503 F.3d at 1206 (“[W]e are not

inclined to infer from the Federal Defendants’ opposition to intervention that they will

fail to vigorously resist the claim to an R.S. 2477 right-of-way.”). The majority also cites

commentary from the United States implying that it might contemplate settlement in an

effort to resolve the “12,000 of these claims . . . as quickly and efficiently as it can.”

Kane III, 928 F.3d at 895. But as the majority concedes, the prospect of settlement

cannot support a finding that the United States may not adequately represent the interests

involved. Id. at 892 (“Nor is representation inadequate merely because the representative

enters into a settlement, because any case, even the most vigorously defended, may

14
culminate in a settlement.”).

Accordingly, SUWA has failed to show any change in circumstances warranting a

reversal of our previous conclusion that the United States adequately represents SUWA’s

interests in this quiet title action.

Because the panel majority’s opinion is inconsistent with Supreme Court precedent

regarding Article III standing and our precedent on the right to intervention, I would have

granted the petitions for rehearing en banc.

15