Kane County v. USA

Filing 732

MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR CERTIFICATION OF ORDER FOR INTERLOCUTORY APPEAL -granting 730 Motion for Certificate of Appealability; Motions terminated: 730 MOTION for Certificate of Appealability and Memorandum in Support filed by Southern Utah Wilderness Alliance, Grand Canyon Trust, Sierra Club, Wilderness Society. See Order for details. Signed by Judge Clark Waddoups on 7/9/22. (jrj)

Case 2:10-cv-01073-CW Document 732 Filed 07/11/22 PageID.16440 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

KANE COUNTY (2), UTAH,
Plaintiff, and
STATE OF UTAH,
Intervenor-Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant, and

MEMORANDUM DECISION AND
ORDER GRANTING MOTION FOR
CERTIFICATION OF ORDER FOR
INTERLOCUTORY APPEAL
Case Nos. 2:10-cv-1073
(Consolidated 2:11-cv-1031, 2:12-cv-476)
Judge Clark Waddoups

SOUTHERN UTAH WILDERNESS
ALLIANCE et al.,
Intervenor-Defendants.

On June 6, 2022, this Court issued an Order denying Southern Utah Wilderness Alliance’s
(“SUWA”) motion to intervene as of right under Federal Rule of Civil Procedure 24(a). See Mem
Dec (ECF No. 727). On June 23, 2022, SUWA filed a Motion for Certification of Order for
Interlocutory Appeal. Plaintiffs do not oppose the certification. Response to Mot., at 2 (ECF No.
731). Under 28 U.S.C. § 1292(b), an order may be certified for interlocutory appeal if (1) it
involves a controlling question of law; (2) there is substantial ground for difference of opinion
about the question; and (3) an immediate appeal may materially advance the ultimate termination
of the litigation.

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Here, the issue at hand is whether SUWA may intervene as of right because the United
States may not adequately represent its interests. This is a controlling question of law as to
SUWA’s involvement in this case.
The second element requires showing there is a substantial ground for difference of opinion
about the question. In Kane County (1) v. United States, 928 F.3d 877, 882 (10th Cir. 2019)
(hereinafter “Intervention Ruling”), the Tenth Circuit ruled that SUWA had a right to intervene on
the issue of scope for the R.S. 2477 rights-of-way in that case. SUWA contends the ruling
mandates intervention as of right in this case as well. Based on prior rulings by the Tenth Circuit,
including an en banc decision, this court concluded there is not a per se requirement in the Tenth
Circuit that allows SUWA intervention as of right in R.S. 2477 road cases. Moreover, the court
concluded that the facts and procedural posture in Kane County (1) are distinguishable from those
in Kane County (2).

Accordingly, the court concluded that the Intervention Ruling was

distinguishable and did not impose a de facto rule requiring that SUWA be allowed to intervene
as of right.
The Intervention Ruling is a novel decision, however, in that the Tenth Circuit had
previously twice denied intervention in Kane County (1). In SUWA’s third motion to intervene in
that case, a two-judge panel distinguished the prior rulings and the San Juan en banc decision, San
Juan County, Utah v. United States, 503 F.3d 1163, 1167 (10th Cir. 2007). Such ruling appears
limited to the specific facts remaining at issue in Kane County (1). Because of the novelty of the
decision, however, questions remain about the decision’s scope, including whether it created a de

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facto rule that requires allowing SUWA to intervene as of right on all issues in R.S. 2477 cases. 1
United Transp. Union Loc. 1745 v. City of Albuquerque, 178 F.3d 1109, 1114 (10th Cir. 1999)
(allowing interlocutory appeal where district court concluded the “controlling question herein is
novel and has not been previously ruled upon in this circuit”). Moreover, this question impacts
not only the Kane County (1) and (2) cases, but eighteen other R.S. 2477 cases. See Shakur v.
Malcom, 525 F.2d 1144, 1147 (2d Cir. 1975) (stating an interlocutory appeal may be appropriate
when “the issue presented is of broad applicability”). Accordingly, the court concludes the second
element under § 1292(b) has been satisfied.
The final element requires showing an immediate appeal may materially advance the
ultimate termination of the litigation. Absent an immediate appeal, the parties in this case face the
possibility of needless duplication should the Circuit later rule that SUWA should have been
allowed to intervene as of right. The parties face having to re-do significant portions of the present
litigation. Based on the nature of R.S. 2477 cases, such litigation extends over the course of many
years and any such duplication would greatly extend resolution of these proceeding. Thus, an
immediate appeal will materially advance the ultimate termination of the litigation. Moreover,
because of how many R.S. 2477 cases are presently before the court, an interlocutory appeal would
be helpful to resolve the uncertainty of how prior Tenth Circuit cases should be applied in the
pending cases.

In Kane County (1), the panel distinguished the prior cases solely on the ground of scope of
title. Nevertheless, in Kane County (2), SUWA contends the Intervention Ruling applies not just
to scope, but all issues, such that the court is required to allow SUWA to intervene as of right on
all R.S. 2477 issues.
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Case 2:10-cv-01073-CW Document 732 Filed 07/11/22 PageID.16443 Page 4 of 4

Based on the above, the Court GRANTS SUWA’s Motion for Certification of Order for
Interlocutory Appeal under 28 U.S.C. § 1292(b) (ECF No. 730). 2
DATED this 9th day of July, 2022.
BY THE COURT:

Clark Waddoups
United States District Judge

This certification applies only to SUWA’s motion to intervene as of right and not to the issue
about SUWA’s limited permissive intervenor rights.
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