Juab County (2) et al v. USA et al

Filing 112

MEMORANDUM DECISION AND ORDER DENYING SUWA'S FIFTH MOTIONTO INTERVENE AS OF RIGHT and RETAINING FOURTH AMENDED PERMISSIVE INTERVENTION ORDER - For the reasons stated above, the court DENIES SUWA's motion to intervene as of r ight (ECF No. 607) in Kane County (2). The Fourth Amended Permissive Intervention Order shall remain in place in all cases to which it presently applies. In the event there is any question, the court informs SUWA that if it wishes to appeal this decision, the Fourth Amended Permissive Intervention Order does not preclude SUWA from filing the requisite Notice of Interlocutory Appeal. See Order for details. Signed by Judge Clark Waddoups on 6/6/22. (jrj)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

KANE COUNTY, UTAH (2), (3), and (4), a
Utah political subdivision; and STATE OF
UTAH,
Plaintiffs (or Plaintiff-Intervenor, as to State
of Utah in Kane County (2)),
v.
UNITED STATES OF AMERICA,
Defendant,
and
SOUTHERN UTAH WILDERNESS
ALLIANCE et al.,
Defendant-Intervenors.

MEMORANDUM DECISION
AND ORDER
DENYING SUWA’S FIFTH MOTION
TO INTERVENE AS OF RIGHT
and
RETAINING FOURTH AMENDED
PERMISSIVE INTERVENTION ORDER
Consolidated Case No. 2:10-cv-1073CW 1
(Consolidated with Case Nos. 2:11cv-1031-CW and 2:12-cv-476-CW)
Judge Clark Waddoups
Docket also in the following Case
Nos:
1:12-cv-105
2:12-cv-451
2:10-cv-1073
2:12-cv-452
2:11-cv-1043
2:12-cv-461
2:11-cv-1045
2:12-cv-462
2:12-cv-423
2:12-cv-466
2:12-cv-425
2:12-cv-467
2:12-cv-428
2:12-cv-471
2:12-cv-429
2:12-cv-472
2:12-cv-434
2:12-cv-477
2:12-cv-447

All “ECF No.” references in this memorandum decision refer to docket entries in Case No. 2:10cv-1073, unless otherwise noted. Additionally, when referring to a page number, the court
references the ECF page numbering at the top of the page and not the numbering at the bottom of
a document.
1

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INTRODUCTION
On March 6, 2020, a mandate issued from the Tenth Circuit Court of Appeals that allowed
SUWA 2 to intervene as of right on the issue of scope in Kane County (1), Utah v. United States,
No. 2:08-cv-315) (D. Utah) (hereinafter “Kane County (1)”). 3 Based on that ruling in Kane County
(1), SUWA has now filed a fifth motion to intervene as of right 4 in this case—Kane County (2)—
on the issues of title and scope.
Unless otherwise specified, “SUWA” collectively refers to the Southern Utah Wilderness
Alliance, The Wilderness Society, and the Sierra Club.
2

The Tenth Circuit ruled twice before that SUWA could not intervene as of right in Kane County
(1). See Kane County v. United States, 597 F.3d 1129 (10th Cir. 2010); Order, at 2 (Sept. 2, 2014)
(Appellate Case Nos. 13-4110, 13-4109, 13-4108). Thus, the Kane County (1) decision now
referenced by SUWA was the Tenth Circuit’s third decision on the matter, which citation is Kane
County (1) v. United States, 928 F.3d 877 (10th Cir. 2019). For simplicity, however, the court will
simply refer to it herein as the “Intervention Ruling.”
3

4

SUWA has filed five motions to intervene on the docket for Kane County (2) as follows:
•

On April 22, 2013, SUWA filed an entry on the Kane County (2) docket moving to
intervene in Kane County (3) (ECF No. 103). Four days earlier, the court had
consolidated and merged Kane County (3) v. United States, 2:11-cv-1031 into Kane
County (2) v. United States, 2:10-cv-1073. Order, at 3 (ECF No. 91); see also Order,
at 1 n.2 (ECF No. 181) (explaining function of local rule DUCivR 42-1(b) that, “upon
consolidation, a merger occurs with the lower-numbered case and the higher numbered
case is closed”). Because the two cases were merged and consolidated, a separate
motion to intervene was unnecessary, but it was one of the motions to intervene the
court has had to address in this case.

•

SUWA filed a second Motion to Intervene on April 23, 2013 (ECF No. 105).

•

SUWA filed a Renewed Motion to Intervene on May 25, 2018 (ECF No. 410), which
should have only been lodged as discussed later in this memorandum decision.

•

SUWA filed a fourth Motion to Intervene on July 10, 2019 (ECF No. 516).

•

After the fourth motion was terminated as moot, on July 25, 2019, SUWA then filed a
motion to obtain full participation or to revive its fourth Motion to Intervene (ECF No.
530). On September 5, 2019, the court decided the motion to obtain full participation
2

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Intervention as of right has serious effects. Courts have allowed one who cannot bring a
claim or defense on its own to enter a suit and obtain the right to “conduct discovery, participate
fully at trial, and pursue an appeal in the event of an adverse judgment.” Caleb Nelson,
Intervention, 106 Va. L. Rev. 271, 274–75 (2020) (hereinafter, “Nelson”). Despite the importance
of intervention law, one professor has accurately noted, “the law governing motions [to intervene]
is a mess.” Id. at 274.
In this case, the State of Utah and Kane County assert title to certain roads that cross federal
land. Although the roads at issue came into existence before SUWA did, 5 SUWA nevertheless
asserts it has rights that will be infringed if it is not permitted to intervene as of right. Indeed,
SUWA contends its rights are so important that the United States, as the sovereign landowner,
cannot possibly defend title and scope adequately without SUWA’s involvement.
This case, however, is now at the post-trial stage. Throughout the proceedings in this case,
the United States has vigorously defended against Plaintiffs’ claims to title. During a three-week
bench trial, the court observed that very defense, which the United States put on through multiple
attorneys. In its post-trial briefing, the United States seeks dismissal of every bellwether road in
this case on jurisdictional grounds. See United States’ Amended Motion to Dismiss (ECF No.
671). To the extent jurisdiction is found, the United States has not conceded title to a single road

and the fourth Motion to Intervene on the merits. Mem. Dec., at 2–3 (ECF No. 549),
also located at Kane Cnty., Utah (2), (3), & (4) v. United States, 333 F.R.D. 225, 228–
29 (D. Utah 2019).
•

Shortly after the start of the pandemic, on April 6, 2020, SUWA filed its fifth Motion
to Intervene (ECF No. 607), which is the motion now before the court.

This reference to SUWA pertains only to the Southern Utah Wilderness Alliance, and its late
entry into R.S. 2477 matters will be addressed further below.
5

3

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and is arguing for the narrowest width it can under the law. See United States’ Proposed Findings
of Fact and Conclusions of Law (ECF No. 677). SUWA’s interests have been, and continue to be,
adequately represented by the United States in this case.
SUWA also seems to imply that because the Tenth Circuit allowed SUWA to intervene as
of right in Kane County (1), this court also must allow SUWA to intervene as of right in this case
and, by extension, all other R.S. 2477 cases. While the court respects the Tenth Circuit’s
Intervention Ruling, SUWA’s contention does not appear to be in harmony with it.
Under Tenth Circuit precedent, one panel cannot overrule another panel; nor may a panel
overrule an en banc ruling. Burlington N. & Santa Fe Ry. Co. v. Burton, 270 F.3d 942, 947 (10th
Cir. 2001) (citing United States v. Morris, 247 F.3d 1080, 1085 (10th Cir. 2001)) (stating a panel
“cannot overrule the judgement of another panel of this court absent en banc reconsideration or a
superseding contrary decision by the Supreme Court”); see also United States v. Goines, No. 203183, 2021 WL 4544098 (10th Cir. Oct. 5, 2021) (citing United States v. Manzanares, 956 F.3d
1220, 1225 (10th Cir. 2020)) (same). Because an en banc panel has concluded SUWA does not
have a per se right to intervene in R.S. 2477 cases, the court does not read Kane County (1) as
establishing a contrary ruling. 6 Moreover, Kane County (1) is distinguishable from this case.
Accordingly, the court again denies SUWA intervention as of right.

If the court has misread the Kane County (1) decision, such that SUWA now has a per se right
to intervene in all R.S. 2477 cases, the court invites the Tenth Circuit to so state. As stated above,
SUWA has now moved multiple times to intervene in this case. Answering the same question
repeatedly drains the court’s resources.

6

4

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BACKGROUND
This court has been assigned Kane County (1), which was filed in 2008, and Kane County
(2), which was filed in 2010. Both cases involve R.S. 2477 road issues. In 2013, this court also
was assigned to do case management 7 on about twenty other R.S. 2477 cases pending in this
district (the “Road Cases”). See Case Mgmt. Order (ECF No. 78). 8 Throughout all of this
litigation, this court has had interaction with SUWA. It knows of SUWA’s actions from the time
it first sought to intervene in these R.S. 2477 road cases, which knowledge informs this decision.

STANDING
I.

PIGGYBACK STANDING
“‘One essential aspect of [a court’s jurisdiction] is that any person invoking the power of a

federal court must demonstrate standing to do so.’” Virginia House of Delegates v. Bethune-Hill,
139 S. Ct. 1945, 1950 (2019) (quoting Hollingsworth v. Perry, 570 U.S. 693, 704 (2013)). Thus,
“[a]ny party, whether original or intervening, that seeks relief from a federal court must have
standing to pursue its claims” or defenses. Dillard v. Chilton Cnty. Comm’n, 495 F.3d 1324, 1330
(11th Cir. 2007). With respect to a person seeking entry as an intervenor, the United States
Supreme Court has clarified that “[f]or all relief sought, there must be a litigant with standing. . . .
Thus, at the least, an intervenor of right must demonstrate Article III standing when it seeks

The next bellwether trial will be in a different case and handled by a different judge in this
district. Presently, however, case management on non-substantive matters remains with this court.
7

Because Kane County filed its cases before the others, it was on a different path. Consequently,
it was not subject to the case management order, but the Kane County (2) case number has been
listed in captions involving case management orders due to the State of Utah’s role.
8

5

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additional relief beyond that which the [original party] requests.” Town of Chester, N.Y. v. Laroe
Estates, Inc., 137 S. Ct. 1645, 1651 (2017) (emphasis added).
In the Intervention Ruling, the majority addressed whether piggyback standing was still
permitted, such that SUWA could “‘piggyback’ upon the standing of [the United States] to satisfy
the standing requirement.” Dillard, 495 F.3d at 1330. The majority distinguished prior Tenth
Circuit and Supreme Court cases, and concluded that piggyback standing is still allowed, as long
as an intervenor does not seek relief different from the original party. Kane County (1), 928 F.3d
at 886–87. Because the United States represented in Kane County (1) that it was seeking “retention
of the maximum amount of property” and “the smallest [road] widths it can based on the historical
evidence,” the majority concluded SUWA and the United States were seeking the same relief. Id.
at 887 (quotations, citations, and alteration omitted). Accordingly, the majority held that SUWA
had satisfied the standing requirements.
Based on the Intervention Ruling, as long as SUWA does not seek relief different from the
United States, SUWA also has piggyback standing in Kane County (2).
II.

ARTICLE III – CONSTITUTIONAL STANDING
A.

Majority’s Conclusion in Kane County (1)

The majority in the Intervention Ruling also concluded that SUWA had “establish[ed] its
own independent standing.” Intervention Ruling, 928 F.3d at 888. For constitutional standing, a
party must show:
(1) an injury in fact that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged conduct; and (3) the injury can
likely be redressed by a favorable decision.

6

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Id. (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81
(2000)).
The majority found that SUWA had “established an imminent injury” because the plaintiffs
in Kane County (1) are “seek[ing] to double the width of” two dirt roads and “more than double
the width” of a third road. The majority then concluded:
(1)

“Wider roads will likely require realignments or improvements, such as grading or
paving.”

(2)

“Such widening and improvement of the roads in a scenic area would almost
inevitably increase traffic, diminishing the enjoyment of the nearby natural
wilderness,” and

(3)

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

Id. at 888 (quotations and citations omitted). Each point made by the majority had as its premise
that the State and County were seeking to make the roads wider.
A word often is susceptible to multiple meanings in the English language. It appears that
the majority envisioned something different than what is before this court in Kane County (1). In
the underlying Kane County (1) case, this court concluded that the scope of the rights-of-way for
three roads was wider than the travel surfaces of those roads. Kane Cnty., Utah (1) v. United
States, No. 2:08-CV-00315, 2013 WL 1180764, at *64–65 (D. Utah Mar. 20, 2013), rev’d and
remanded sub nom. Kane Cnty., Utah v. United States, 772 F.3d 1205 (10th Cir. 2014). This
court’s opinion, however, did not increase the travel surface of the three roads. Instead, the width
at issue in the underlying case pertained to the room needed to do the following:
maneuver equipment, repair culverts, clear vegetation, obtain fill,
and divert water to maintain the roads to their present travel
surface. [Such room] further allows for shoulders along the road for
emergency pull-offs and room to address any future realignments or
7

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other improvements needed to increase safety.
...
The court notes again that any such realignments or improvements
would require consultation with the BLM before they are
undertaken.
Id. at *64 & n.33 (emphasis added).
In Kane County, Utah v. United States, 772 F.3d 1205, 1223–24 (10th Cir. 2014), the Tenth
Circuit reversed this court’s width determination because it concluded the court had failed to base
the width determination on pre-1976 uses and had allowed for unspecified future improvements.
Upon remand, however, this court will not be determining if the travel surfaces for the three roads
should or should not be widened. That issue is not before the court. 9 Instead, the issue is the
length and width of the right-of-way, which may potentially include a width wider than the travel
surface under existing law. Because Kane County (1) does not involve widening the travel surfaces
of any of the three roads, it is difficult to discern why SUWA is presently facing imminent injury
to its environmental interests from purported increased traffic on the roads.
Moreover, any such change to the width of the travel surface constitutes construction
activities, and such construction activities must be reviewed by the United States before they
commence. S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735, 748–49 (10th Cir.
2005), as amended on denial of reh’g (Jan. 6, 2006). Based on the time for review and outcome

Although the State and County, on remand, are seeking for the rights-of-way to be wider than
the travel surface, they have reaffirmed in briefing that it is a “false assumption . . . that if Plaintiffs’
prevail all roads will be widened by the County and traffic will increase to the point of causing
environmental harm.” State’s Mem. in Opp’n to Mot. to Intervene, at 3 (ECF No. 646). Moreover,
widening the travel surface is also not the intent of Plaintiffs in Kane County (2). See Kane
County’s Mem. in Opp’n to Mot. to Intervene, at 6 (ECF No. 649) (affirming in this case that
Plaintiffs are not seeking to increase width or traffic on the roads).
9

8

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of that review, any construction activities are not imminent. Additionally, whenever a NEPA
analysis is involved due to a proposed improvement, 10 SUWA has a seat at the administrative table
and pursues litigation on its own when it is dissatisfied with an administrative decision.
Consequently, the majority’s conclusion about SUWA’s imminent injury is perplexing.
That said, in Kane County (2), some of the bellwether roads are presently closed, and it is
reasonable to infer that if title to any of the closed roads is vested in the State and Kane County,
then the road(s) may be reopened. Moreover, reopened roads would lead to increased traffic on
those roads. Even though this court disagrees that those factors are enough to establish Article III
standing, based on how the majority applied such standing in the Intervention Ruling, the court
concludes that SUWA has satisfied Article III standing in Kane County (2) as well.
III.

PRUDENTIAL STANDING
Even if SUWA has Article III standing, Kane County contends that SUWA should be

denied intervention because it lacks prudential standing. The dissent in the Intervention Ruling
also addressed the issue and concluded SUWA lacked third-party standing. Kane County (1), 928
F.3d at 901 (10th Cir. 2019) (Tymkovich, C.J., dissenting). The majority did not reach the issue.
Id. at 886 n.9.
Third-party standing requires one to “‘assert his own legal rights and interests, and cannot
rest his claim to relief on the legal rights or interests of third parties.’” Id. at 900 (quoting Kowalski
v. Tesmer, 543 U.S. 125 (2004)). An exception exists if one can show that it “‘has a close

Kane County is seeking review by the United States for approval of a chip seal project on the
Skutumpah road. The scope of Skutumpah is still before the court in Kane County (1). Kane
County has informed the court it intends to raise that issue in Kane County (1). Because the issue
has not been briefed fully, the court lacks details about the project. It therefore cannot address that
point here.
10

9

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relationship with the person who possesses the right and there is a hindrance to the possessor’s
ability to protect his own interests.’” Id. (alteration omitted) (emphasis added) (quoting Sessions
v. Morales-Santana, __ U.S. __, 137 S. Ct. 1678, 1689 (2017)).
In The Wilderness Society v. Kane County, Utah, 632 F.3d 1162, 1171 (10th Cir. 2011) (en
banc), The Wilderness Society asserted it was “not suing based on the legal rights of a third party,
the federal government’s property rights, but rather [was] working to protect its conservation
interests.” (Quotations and citation omitted.) In response, the en banc panel stated, “[p]rudential
standing imposes different demands than injury in fact. A party may suffer a cognizable injury
but still not possess a right to relief.” Id. (internal citations omitted). The panel then rejected that
“alleged aesthetic or recreational injury” was sufficient to grant The Wilderness Society prudential
standing. Id. at 1174. In particular, the panel found that, The Wilderness Society’s protests to the
contrary, it “obviously seeks to enforce the federal government’s property rights in the disputed
rights of way” based on the nature of the suit.
The court concludes the same applies here. SUWA was not the intended beneficiary of the
R.S. 2477 or Quiet Title statutes and cannot sue or be sued under either on R.S. 2477 road claims.
Scope, as it pertains to determining the length and width of an R.S. 2477 right-of-way, 11 also
cannot be raised by SUWA in a separate lawsuit because it would be asserting or defending the

11

The court emphasizes the above language to define the “scope” at hand because scope also is
a word susceptible to multiple meanings. It has been used in the land use context to determine if
a particular use falls with the scope of a right-of-way. Separate processes exist to address land use
issues after title rights are determined. Whether SUWA may participate in those arenas is a
separate standing issue than the one before this court. Here, the legal right or interest pertains only
to ownership of rights-of-way and, if applicable, the legal description (“scope”) of those rights-ofway.
10

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rights of another. SUWA is therefore not asserting its own legal rights and interests as those terms
are contemplated for prudential standing. Moreover, even if one could show a close relationship
between the United States and SUWA, which the court is not finding, there is no ground to
conclude that the United States is hindered in its ability to protect its own interest. Thus, the court
concludes SUWA lacks prudential standing.
It is unclear, however, what the interplay is between piggyback standing and prudential
standing. The court concludes it does not need to reach the issue because it will not alter the
outcome of SUWA’s motion to intervene.

HISTORICAL CONTEXT FOR R.S. 2477 ROADS
Before addressing the elements needed to intervene as of right, it is important to review the
historical context that applies to R.S. 2477 roads and to SUWA. 12 It seems that a brief history of
R.S. 2477 is stated in almost every decision involving an R.S. 2477 road. So often has it been
repeated, that one may feel inclined to skip over it or skim it briefly. Yet, the property rights in
R.S. 2477 cases are immersed in the past and may only be understood by placing the rights in
historical context. If one does not carefully consider this context, then erroneous conclusions may
be reached. The court therefore reviews this context anew.

On September 5, 2019, the court issued a memorandum decision that addressed the history of
the road cases and how that history informs SUWA’s present rights. Mem. Dec. (ECF No. 549).
Because the analysis is still important and applicable to the present motion, the court repeats much
of it here and supplements it with additional facts and legal analysis to address SUWA’s latest
motion.
12

11

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I.

R.S. 2477 ROADS WERE WELCOMED AND NEEDED
The United States wanted to settle the west in the 1800’s. Consequently, after the United

States had expanded its boundaries to the Pacific Ocean, Congress passed a series of acts to
encourage such settlement and development of the west. Among these were the Homestead Act
of 1862 (granting lands for settlement), the Pacific Railway Act of 1862 (supporting development
of a transcontinental railroad by granting lands), and the Morrill Act of 1862 (promoting
development of public colleges by granting lands). Against this backdrop, “[i]n 1866, Congress
passed an open-ended grant of ‘the right-of-way for the construction of highways over public
lands, not reserved for public uses.’” S. Utah Wilderness All., 425 F.3d at 740 (quoting Mining
Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253 (1866), repealed by Federal Land Policy
Management Act of 1976, Pub. L. No. 94-579, § 706(a), 90 Stat. 2743)). Such highways are now
commonly referred to as R.S. 2477 roads, and “most of the transportation routes of the West were
established under [R.S. 2477’s] authority.” Id. Indeed, “R.S. 2477 rights of way were an integral
part of the congressional pro-development lands policy,” and were “deemed a good thing.” Id. at
740–41. The roads were welcomed and needed to carry out the United States’ desire to settle the
west.
For the 110-year-period between 1866 and 1976, the grant for the creation of highways
remained in place until Congress passed the Federal Land Policy Management Act of 1976
(“FLPMA”). Although Congress changed its focus in 1976 to conservation and preservation,
FLPMA nevertheless provided “that any valid R.S. 2477 rights of way existing” at the time of
FLPMA’s passage “would continue in effect.” Id. at 741 (quotations omitted) (citing Pub. L. No.
94-579, § 701(a), 90 Stat. 2743, 2786 (1976)).
12

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The court takes judicial notice that Kane County was founded in 1864 while Utah was still
a territory. It was formed in the midst of the Acts discussed above to settle the west and establish
roads across public lands. It would be illogical to conclude that no R.S. 2477 roads were
established between 1866 and 1976 in Kane County. Kane County therefore has a legitimate
interest in protecting any valid property rights it acquired during that time period. 13 Unfortunately,
what “used to be a non-issue” with respect to these roads has now “become a flash point.” Id. at
742. This action arises due to FLPMA’s grandfathering provision and ensuing disputes.
II.

ROADS EXISTING ON THE GROUND AS OF 1976
Because FLPMA grandfathered in existing property rights, Plaintiffs’ suit is not about

establishing new roads across public lands. It is about proving who the owner is of roads that
already exist on the ground, as well as the scope of any existing right-of-way. For the State and
County to prove they acquired these roads before FLPMA’s passage, courts have required
Plaintiffs to file a quiet title action under 28 U.S.C. § 2409a.
For a cause of action to lie under § 2409a, Plaintiffs must prove “(1) the United States
‘claims an interest’ in the property at issue; and (2) title to the property is ‘disputed.’” Kane Cnty.,
Utah, 772 F.3d at 1210–11 (citation omitted). If Plaintiffs can pass that jurisdictional bar, they
then must prove acceptance of the grant typically by public use or by mechanical means prior to

It would be equally illogical to conclude that Kane County holds title to all 770 claims
(approximately) it has made in its consolidated complaints. Thus, the United States has a
legitimate interest in protecting its ownership of property rights that were retained and are
exclusive to it. The parties recognize these truths and are seeking to sort out legal principles
through a bellwether process that will guide the resolution of future roads in accordance with rights
of the legitimate owner of the right-of-way.

13

13

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October 21, 1976. The court makes the distinction between title arising under R.S. 2477 and title
arising in another context.
The court references School and Institutional Trust Lands (“SITLA parcels”) to illustrate
this distinction. SITLA parcels are owned by the State of Utah. Some of the SITLA parcels are
located within federal preservation areas. To ensure the State can make use of its SITLA parcels
and that the BLM can maintain its priority preservation areas, at times, the State and the United
States have entered into exchanges of property. One of the more recent exchanges occurred under
the Utah Recreational Land Exchange Act of 2009. See Pub. L. No. 111-53, 123 Stat. 1982 (2009).
It involved a present-day conveyance of title to parcels from one government to another in
exchange for a corresponding conveyance of title to other parcels. The very nature of that title and
scope exchange necessitated complex environmental analyses and cost studies before the exchange
could be put into effect. One would anticipate competing interests being evaluated under such
circumstances.
In contrast, R.S. 2477 issues do not involve the present day. They look to events that had
to have occurred before October 21, 1976. No matter how vehemently a person may oppose a
road in a certain area today, or how justified that vehemence is, those factors are irrelevant to the
court’s analysis. When determining title under R.S. 2477, the court does not consider anyone’s
present interest in land use issues or management, much less anyone’s competing interests. Kane
County is a hotbed for competing land interests. For every group that wants to preserve land, there
is a competing group that wants the land open for development or recreation. Such competing
interests cannot and do not inform the court’s decision about who holds title to the property when
that title arises under R.S. 2477. The specific R.S. 2477 title issue is simply not open for public
14

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opinion or comment. Thus, the nature of the particular property dispute before the court informs
whether SUWA has a right to participate in this action.
III.

SCOPE IN THE R.S. 2477 CONTEXT
A.

Scope of Review in San Juan County

In another R.S. 2477 road case, “[s]everal conservation groups . . . [sought] to intervene in
a federal quiet-title action brought by San Juan County, Utah, against the United States,” and other
federal defendants. San Juan County, Utah v. United States, 503 F.3d 1163, 1167 (10th Cir. 2007)
(en banc) (hereinafter “San Juan”). The conservation groups were collectively referred to as
SUWA. Id. The district court had denied SUWA’s application to intervene as of right and also
denied SUWA permissive intervention. Id. at 1171. The district court stated, “the pleadings define
the case in a very narrow fashion and the existence or non-existence of a right-of-way and its
length and its breadth are matters which it seems to me are fact driven . . . . ” Id. (citation omitted).
After quoting this particular language, the San Juan en banc panel stated, “SUWA appeals this
ruling.” Id. Thus, the issue of title and scope were reviewed in the San Juan case and SUWA was
nevertheless denied intervention.
B.

Ownership and Scope

In the Intervention Ruling, the majority agreed “that scope is inherent in the quiet title
process. After all, a right-of way must have a scope.” Kane County (1), 928 F.3d at 894
(quotations and citation omitted). It further stated, “the district court must determine title and
scope in separate steps.” Id. Judicial efficiency does counsel against reaching the issue of scope
if ownership of a right-of-way has not been established, but evidence on both issues is typically
presented in the same trial and without bifurcated proceedings. This is so because ownership and
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scope are the two sides of the same coin that comprises title. Thus, when this court refers to title,
it encompasses both elements.
Scope, in the R.S. 2477 context, means defining the length and width of the right-of-way
so that the dividing line between one property and another is known. Indeed, in Jeremy v.
Bertagnole, the Utah Supreme Court stated it is “proper and necessary for the court in defining
the road to determine its width, and to fix the same according to what was reasonable and
necessary, under all the facts and circumstances, for the uses which were made of the road.” 116
P.2d 420, 423 (Utah 1941) (quotations and citations omitted) (emphasis added).
Although width is not limited to the actual travel surface (i.e., the “beaten path”), it is still
bounded by pre-1976 uses. Id. at 423–24. The Court explained the boundaries as follows:
A particular use having been established, such width should be
decreed by the court as will make such use convenient and safe. A
bridle path abandoned to the public may not be expanded, by court
decree, into a boulevard. On the other hand, the implied dedication
of a roadway to automobile traffic is the dedication of a roadway of
sufficient width for safe and convenient use thereof by such traffic.
Id. at 424 (emphasis added).
The above confirms pre-1976 events fix in place the type of road that may be had and an
approximate boundary for that road. R.S. 2477 and the Quiet Title Act, § 2904a are the sole
statutes that govern the ownership and scope determinations. Other statutes that require balancing
competing land use issues are not in play.
IV.

HOW SUWA FITS INTO THE R.S. 2477 CONTEXT
Notably, even though this case is about title, SUWA is not a property owner. Unlike the

original parties, SUWA has no claim of title to any of the roads at issue or even to the land on
which the roads cross. This is significant because, based on historical events, all of the federal
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land in which SUWA claims an environmental interest is subject to existing R.S. 2477 property
rights. Whatever protectable interest SUWA may have, it emerged subject to those R.S. 2477
interests and cannot encroach upon them.
When Presidential Proclamation 6920 was issued to establish the Grand-StaircaseEscalante National Monument, it “expressly preserved all valid existing rights-of-way” within the
Monument. Kane County, Utah v. U.S., 934 F. Supp. 2d 1344, 1351 (D. Utah 2013), affirmed in
part and rev’d in part on other grounds, 772 F.3d 1205 (10th Cir. 2014). When the Monument’s
management plan was developed, it stated:
If claims are determined to be valid R.S. 2477 highways, the
Approved Plan will respect those as valid existing rights. . . .
Nothing in this Plan alters in any way any legal rights the Counties
of Garfield and Kane or the State of Utah has [sic] to assert and
protect R.S. 2477 rights, and to challenge in Federal court or other
appropriate venue any BLM road closures that they believe are
inconsistent with their rights.
Wilderness Soc’y, 632 F.3d at 1166 (alterations in original) (quoting Monument’s Management
Plan).
When FLPMA was passed, it directed the Secretary of the Interior to inventory federal
lands to determine areas that were roadless and had wilderness characteristics. 14 Kane Cnty., Utah,
772 F.3d at 1216. When the Secretary designated a land as a wilderness study area (“WSA”), the
Secretary then had “to manage such lands ‘in a manner so as not to impair the suitability of such
areas for preservation as wilderness,’ and to ‘take any action required to prevent unnecessary or
undue degradation of the lands and their resources.’” Id. (quoting 43 U.S.C. § 1782(c)).

This was in harmony with the Wilderness Act of 1964 that sought to preserve wilderness areas
containing at least five thousand areas of land. Pub. L. No. 88-577, 78 Stat. 890 (1964).
14

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As stated above, however, FLPMA also required that all valid R.S. 2477 rights-of-way be
grandfathered in and preserved for those who acquired them before October 21, 1976. The BLM
reconciled these competing aspects of FLPMA by stating “roadless” areas for purposes of a WSA
involve “roads” that are “not coterminous with a ‘road’ under R.S. 2477.” Id. “[T]he BLM
Director for Utah issued” the following clarification: “The wilderness inventory process uses a
definition of a road that is distinct from the definition of ‘public’ road contemplated by R.S. 2477
(43 U.S.C. § 932) and is a definition for inventory purposes only, not for establishing rights of
counties, etc. . . .” Id. (quoting Instruction Memorandum No. UT ’80-240 (Mar. 6, 1980)).
Moreover, “[a] subsequent nationwide BLM memorandum stated that where WSAs
overlap with R.S. 2477 rights-of-way, ‘the WSA/wilderness designation is subject to the terms and
conditions of the pre-existing R/W grant.’” Id. at 1216–17 (emphasis added) (quoting Instructional
Memorandum No. 90-589 (Aug. 15, 1990)). In each of the above instances, either Congress, the
President, or the BLM balanced interests when setting forth the interplay between R.S. 2477 rightsof-way and any competing environmental considerations. And in each instance, the competing
policy, economic, political, and environmental factors all are subject to valid, existing R.S. 2477
rights-of-way to such a point that they are not even considered in the R.S. 2477 analysis.
Perhaps this is better understood when one realizes that, at the time the R.S. 2477 roads
were being established, the wilderness study areas that the BLM now manages in Kane County
did not exist.15 The Grand-Staircase-Escalante National Monument likewise did not exist at the

Although the Wilderness Act of 1964 had already been passed, and Roadless Review Areas
were under review, the Wilderness Act did not involve lands managed by the BLM. FLMPA
altered that, and wilderness study areas became a focus post-1976 for BLM managed land.
15

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time. 16 In fact, SUWA did not exist at the time R.S. 2477 roads were being established. 17 And no
other defendant-intervenor in this action ever litigated the status of any road against Kane County
or the State of Utah before 1976, as to whether a road should be opened, closed, or otherwise. S.
Utah Wilderness All., 425 F.3d at 741 (stating “all pre–1976 litigated cases involving contested
R.S. 2477 claims (and there are dozens) were between private landowners who had obtained title
to previously-public land and would-be road users who defended the right to cross private land on
what they alleged to be R.S. 2477 rights of way”) (emphasis added)). Only after any R.S. 2477
title had vested, did these things come into play. Hence, it is not surprising that whatever
protectable interest SUWA has, the interest was taken subject to the title holder’s interests, not the
other way around.
With the historical context in mind, the court now turns to the elements needed to intervene
as of right.
INTERVENTION AS OF RIGHT
Rule 24(a) of the Federal Rules of Civil Procedure sets forth the conditions for intervention
as of right. SUWA must (1) “claim[] an interest relating to the property or transaction that is the
subject of the action,” and (2) be “so situated that disposing of the action may as a practical matter
impair or impede the movant’s ability to protect its interest, unless [3] existing parties adequately
represent that interest.” Fed. R. Civ. P. 24(a)(2).

16

The court takes judicial notice that the Monument was established in 1996.

17

This particular reference to SUWA refers only to the Southern Utah Wilderness Alliance, and
the court takes judicial notice SUWA was formed in 1983.
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I.

INTEREST RELATING TO PROPERTY AND IMPAIRMENT OR IMPEDIMENT
OF THAT INTEREST
Intervention law has been inconsistently interpreted by the circuits, and unfortunately, the

United States Supreme Court has provided little guidance about the “interest” prong for
intervention as of right. Again, historical events are informative. Rule 24 was substantially
modified in 1966, and that version is largely what is before the court today. The 1966 Advisory
Committee Note specified how the amended rule was to be applied. Rule 24(a) was meant to
follow “the reasoning underlying” Rules 19 and 23. Fed. R. Civ. P. 24(a)(2) advisory committee’s
note to 1966 amendment. The Committee stated, “[i]ntervention of right is here seen to be a kind
of counterpart to Rule 19(a)(2)(i) 18 on joinder of persons needed for a just adjudication.” Id. It
also stated, an applicant should be allowed “to intervene in an action when his position [was]
comparable to that of a person under Rule 19(a)(2)(i), as amended, unless his interest [was] already
adequately represented in the action by existing parties.” Id. Rules 19 and 24 share almost identical
language because of their design to work in tandem. Nelson, 106 Va. L. Rev. at 334, 355.
Although “practical considerations” were incorporated into Rules 19 and 24, the concern
at issue was the “legally protected interests of the sort that might form the basis for a lawsuit, not
simply practical interests that might make someone care about the outcome of the suit.” Nelson,
106 Va. L. Rev. at 334; see also 6 Moore’s Federal Practice - Civil § 24.03 (2022) (stating “the
term protectable means legally protectable. A movant’s interest must be ‘direct, substantial, and
legally protectable’ to satisfy the interest requirement of Rule 24(a)(2).”) (emphasis in original)).

18

This rule has since been renumbered to Rule 19(a)(1).
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In 2007, however, the San Juan en banc panel concluded it would no longer follow the
“direct, substantial, and legally protectable” standard. See San Juan, 503 F.3d at 1193, 1195, 1199
(stating it is not legal error to consider those factors, “[b]ut other interests may also suffice”).
Instead, the Court adopted the “practical judgment” standard that “must be applied in determining
whether the strength of the interest . . . justif[ies] intervention.” Id. at 1199. Although one would
be hard pressed to conclude that SUWA is a necessary party in R.S. 2477 proceedings, 19 by
changing the intervention standard, the panel essentially decoupled Rule 24 from Rule 19. The
panel then concluded that “SUWA’s environmental concern is a legally protectable interest,” and
that the disposition of the R.S. 2477 claims in San Juan “may as a practical matter impair or impede
SUWA’s ability to protect that interest” based on the facts of that case. Id. (quotations, citation,
and alteration omitted).
The panel relied upon a movement that “can be traced to the 1960s and 1970s.” Nelson,
106 Va. L. Rev. at 337. “[A] trio of judges on the D.C. Circuit—David Bazelon, Harold Leventhal,
and Spottswood Robinson—issued two opinions that paved the way for a broad reading” of Rule
24. Id. at 351. The Nuesse v. Camp, 385 F.2d 694 (D.C. Cir. 1967) decision is one of the opinions,
id. at 352, and the Tenth Circuit panel relied, in part, on that decision when it altered its intervention
standard. See San Juan, 503 F.3d at 1198.
“Chief Judge Bazelon urged courts not ‘to be led astray by a myopic fixation upon
“interest,” but instead to interpret Rule 24(a) so as to achieve the goal of disposing of lawsuits by
involving as many apparently concerned persons as is compatible with efficiency and due

Such a finding would be contrary to every Tenth Circuit decision where the Court affirmed that
SUWA had no legal right to participate in an R.S. 2477 case.
19

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process.’” Nelson, 106 Va. L. Rev. at 355 (alteration omitted) (emphasis added) (quoting Smuck
v. Hobson, 408 F.2d 175, 179 (D.C. Cir. 1969), which in turn quoted the Nuesse v. Camp decision).
The D.C. Circuit’s interest-based representation allowed for a “surrogate political process” to be
had “within lawsuits.” Id. at 369. It also opened the door for the liberal intervention standard that
the Tenth Circuit now follows after San Juan. This court understands the concerns expressed in
San Juan. But when such concerns run contrary to the stated purpose of a rule, and the
corresponding modified standard works harm to the original parties, the concerns should give way.
Although the San Juan decision altered the intervention standard, the reasoning the panel
applied to conclude SUWA satisfied the “interest” prong was still “highly fact-specific.” San
Juan, 503 F.3d at 1199 (citation omitted). When making its finding, the panel expressly noted
SUWA had brough an earlier suit, and “the litigation [in San Juan] proceed[ed] directly from
SUWA’s earlier advocacy of its interest.” Id. at 1168, 1199 (emphasis added). Moreover, the
panel cautioned that (1) Rule 24(a) should not be applied mechanically; (2) “courts [must] exercise
judgment based on the specific circumstances of the case;” (3) “one must be careful not to paint
with too broad a brush in construing Rule 24(a)(2);” (4) “[t]he law can develop only
incrementally;” and (5) the panel could not “produce a rigid formula that will produce the ‘correct’
answer in every case.” Id.
Although this case involves some closed roads, Kane County (2) does not flow directly
from an underlying proceeding like the one in San Juan. SUWA has engaged in widespread
litigation challenging land use plans and has advocated for road closures, but to generalize that
litigation to the point that every R.S. 2477 case flows from SUWA’s advocacy would not be in
harmony with the particular application in San Juan. Accordingly, this case is distinguishable
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from San Juan. Arguably, were one to apply the pronouncements from San Juan, there could be
multiple points on which this case would be distinguished from it.
Yet, it appears the Tenth Circuit has now reached a de facto rule for R.S. 2477 cases
whereunder SUWA will always satisfy the “interest” prong for intervention as of right because
SUWA has a “decades-long history of advocating for the protection of these federal public lands.”
Kane County (1), 928 F.3d at 892. 20 The de facto rule, however, does not appear to take into
account that such advocacy occurred in the land use arena, which arena has no application in R.S.
2477 cases. In fact, it would be improper for this court to take into account land use issues when
deciding ownership and scope under R.S. 2477 and the Quiet Title Act.
While this court finds the Tenth Circuit’s decoupling of Rule 24 from Rule 19
problematic—particularly since the 1966 Advisory Committee Note is still applicable—and is
concerned about the majority’s conclusions about SUWA’s interests, the court nevertheless
assumes that SUWA has satisfied Rule 24(a)’s “interest” prong.
II.

ADEQUATE REPRESENTATION OF INTERESTS
A.

SUWA’s Converging Interests with the United States

“Even if an applicant satisfies the other requirements of Rule 24(a)(2), it is not entitled to
intervene if its ‘interest is adequately represented by existing parties.’” Kane County, Utah v.
United States, 597 F.3d 1129, 1133–34 (10th Cir. 2010) (quoting Fed. R. Civ. P. 24(a)(2)) (other
citation omitted). SUWA contends the United States cannot adequately represent its interest

The majority relied on that factor and what seems to be a factual error about what would happen
to the travel surface of the roads in Kane County (1). Nevertheless, because rights-of-way wider
than the roads’ travel surfaces are in play in every one of the R.S. 2477 Road Cases, if these factors
are sufficient to establish “interest,” we are then at a de facto rule.
20

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because of a line of cases that state, “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.” Utah
Ass’n of Counties v. Clinton, 255 F.3d 1246, 1256 (10th Cir. 2001). In such situations, only a
minimal burden must be met to show inadequacy of representation. See id. at 1254–55 (citations
omitted). It is that same line of cases the majority applied in the Intervention Ruling. Based on
those land use cases, the majority concluded the United States would be considering competing
policy, economic, political, legal, and environmental factors in Kane County (1) on the issue of
scope. See Kane County (1), 928 F.3d at 893–94.
In the United States’ Response to SUWA’s Supplemental Brief on Intervention as of Right
in this case, it stated that it “does not concede that in [Kane County (2)] questions of scope will
involve ‘policy, economic, political, legal, and environmental factors’” (collectively “the
Environmental Factors”). Resp. to SUWA’s Supp. Brief, at 3–4 (ECF No. 709). The United
States’ response is not surprising because none of those factors are in play in Kane County (2).
This court is the fact finder in Kane County (2). It is aware of the record and the trial
testimony. Extensive post-trial briefing has been submitted. Unlike in Kane County (1), no
additional evidence is being taken on the issue of scope in Kane County (2). Thus, the court is
aware of what is now before the court. And in none of the foregoing were the Environmental
Factors raised or balanced by the United States because those factors are outside of the parameters
of the R.S. 2477 and the Quiet Title Act analysis. Moreover, this court has observed that the
United States has chosen to defend title (i.e., ownership and scope) vigorously on every bellwether
road in Kane County (2).

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The federal government is not always legally obligated to consider a broader spectrum of
views. That obligation only arises when it is “litigating on behalf of the general public,” Utah
Ass’n of Counties, 255 F.3d at 1256, or when statutory obligations impose a duty on the
government “to serve two distinct interests, which are related, but not identical.” Trbovich v.
United Mine Workers of Am., 404 U.S. 528, 538 (1972). The very nature of the legal analysis and
evidence shows the distinction between when the United States is litigating on behalf of other and
when it is representing only its interests.
When this court has reviewed land use cases, the Environmental Factors are in play. For
the United States to show its actions were appropriate in the land use context, it has to show what
consideration it gave to competing views on the impact of an improvement project, or a travel plan,
or a land management plan, and so forth. The United States has to show how it balanced those
interests and any applicable environmental evidence in such a manner that its decision was not
arbitrary, capricious, or contrary to law.
In an R.S. 2477 action, however, the United States does not have to present any evidence
about impact on the environment or how it balanced competing interests when defending title. It
does not have to offer evidence about how it has chosen to defend title. Nor are the decisions by
the United States subject to challenge as being arbitrary and capricious or contrary to law because
the only interest in play is its own.
In situations where the federal government is not representing interests other than its own,
then the “representation is adequate when the objective of the applicant for intervention is identical
to that of one of the parties.” City of Stilwell, Okl. v. Ozarks Rural Elec. Co-op. Corp., 79 F.3d
1038, 1042 (10th Cir. 1996) (quotations and citations omitted) (first emphasis in original) (second
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emphasis added). The same remains true even if the intervenor’s “ultimate motivation” in an
action is different from the original party. Id.
In this case, the United States is not litigating to protect the general public’s rights. It is
litigating to protect its own exclusive title to property. It is a landowner that does not want its
property rights encumbered by a right-of-way owned by Kane County or the State. Moreover,
there is no statutory provision that requires the United States to consider any other competing
interests but its own in this dispute.
As this court has held already on multiple prior occasions in this case, SUWA’s objectives
and interests in this litigation are the same as the United States. Both seek to defeat Plaintiffs’
claims to title, and if title is found in favor of Plaintiffs for any road, both seek for that right-ofway to be as narrow as possible. In this, the United States and SUWA’s objectives and interests
are harmonious. Although the two may have diverging views about how to oppose Plaintiffs’
claims, any interests SUWA may have are still adequately represented by the United States.
This is true regardless of whether the court is determining who is the owner of the rightof-way or the scope of that right-of-way. The scope determination does not weigh if a road should
be open or closed to vehicular travel. The past use determines the type of road. It does not weigh
if it is adjoined by a wilderness study area. Those areas were taken subject to the right-of-way. It
does not involve a NEPA analysis or any other environmental or cost analysis because any
dedication has to have occurred prior to 1976.
Through all of this, the United States has asserted it intends to argue for the narrowest
width possible if any right-of-way is established in Plaintiffs’ favor, and certainly, the United
States has not acted contrary to its representations. During a three-week bench trial, the United
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States, through multiple attorneys, presented a strong defense to Plaintiffs’ claims. In its post-trial
briefing, the United States seeks dismissal of every bellwether road in this case on jurisdictional
grounds, and to the extent jurisdiction is found, the United States has not conceded title to a single
road. SUWA can ask for no more. Based on the parameters of how scope of title is determined
and the United States’ representations, the court concludes SUWA’s interests are adequately
protected by the very entity who owns the land and who has been involved with it for more than
150 years.
B.

Changes in Presidential Administrations

The court now turns to the issue of Presidential Administrations. When SUWA went
before the Tenth Circuit for the third time in Kane County (1) on the issue of intervention, it relied
heavily on the Trump administration coming into office to argue the United States would not
represent SUWA’s interests adequately. As the dissent stated in the Intervention Ruling, at times
“a shift in government policy may be enough to upset the presumption of adequate representation”
in the land use context. Kane Cnty. (1), 928 F.3d at 904. R.S. 2477 cases, however, span many
presidential terms of office. Because of how many times a change may occur over who is in office,
allowing such a change to affect when intervention may occur and when it may not will wreak
further havoc on an area of law that already is problematic.
As this court stated in its September 5, 2019 ruling,
By the time this case reaches trial, has post-trial briefing, and a
written ruling, we likely will be past the 2020 elections. That is how
complex this case is. Speculating about what effect the Trump
administration may have during an election year, and further
speculating that he will be re-elected and focus on the R.S. 2477
cases is just that—speculation.
Kane Cnty., Utah, 333 F.R.D. at 934 F. Supp. 2d at 237. That has proven to be correct.
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Moreover, in the same ruling, this court noted that “Ken Salazar, who served as the United
States Secretary of the Interior during the Obama administration, issued a memorandum in 2010,
that clarified the United States’ policy about R.S. 2477 roads.” Id. The memorandum “stated the
Secretary was working towards a pilot project to negotiate resolution of the R.S. 2477 claims in
Utah.” 21 Id. “If the United States can work towards that solution under the Obama administration,
then working towards such a solution under Trump administration [was] not a sea change.” Id.
In its Fifth Motion to Intervene in this case, SUWA also initially argued that its interests
would not be adequately represented because the Trump administration had been lenient in
allowing an application for a recordable disclaimer of interest (“RDI”) and it had decreased the
size of two national monuments in Utah. No RDI, however, was at issue in Kane County.
Moreover, even though the monument sizes had changed, it did not remove the lands from federal
ownership and control under the BLM land management.
Additionally, what has occurred since “President Joseph Biden was inaugurated on January
20, 2021 (“Inauguration Day”),” further undermines SUWA’s argument. Plaintiffs’ Joint Opp’n
to SUWA’s Supplemental Brief, at 6 (ECF No. 708).
On Inauguration Day, Scott de la Vega, Acting Secretary of the
Interior for the Biden Administration, signed Order No. 3395,
which, among other things, temporarily suspended all delegations of
authority to Department Bureaus and Offices to issue any final
decision with respect to R.S. 2477 claims, including recordable
disclaimers of interest. See Order No. 3395, at Sec. 3.e. Although
set to expire 60-days from its execution, its effects [were] extended
indefinitely [on March 19, 2021].
21

Press Release, July 30, 2010 at https://www.doi.gov/news/pressreleases/Salazar-LaysGroundwork-for-Utah-Pilot-Project-to-Resolve-Old-Road-Claims-on-Public-Land (last visited
Sept. 5, 2019).
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. . . Also on Inauguration Day, President Biden ordered a sixty-day
review of former President Trump’s 2017 boundary changes to
national monuments, which included size reductions of both Grand
Staircase-Escalante and Bears Ears in Utah. See Executive Order
on Protecting Public Health and the Environment and Restoring
Science to Tackle the Climate Crisis (dated January 20, 2021), at
Section 3; see also Exec. Order No. 13990, 86 Fed. Reg. 7037
(2021). The sixty-day review leaves open a range of options for the
Biden Administration, but there is a strong likelihood that both of
Utah’s affected national monuments will be expanded well beyond
the boundaries redrawn by the Trump Administration in 2017. See,
e.g., Brian Maffly, President Joe Biden’s order to review Utah
monuments leaves options open, but expansion all but certain,
SALT LAKE TRIBUNE (Jan. 25, 2021), available at
https://www.sltrib.com/news/environment/2021/01/25/presidentjoe-bidens/.
. . . On January 27, 2021, President Biden signed an Executive Order
described by the Biden Administration as a means to “help restore
balance on public lands and waters and provide a path to align the
management of America’s public lands and waters with our nation’s
climate, conservation, and clean energy goals.” See Exec. Order No.
14008, 86 Fed. Reg. 7619 (2021). Section 208 of this Executive
Order directs the U.S. Department of Interior (“DOI”) to pause all
new oil and gas leasing on public lands and offshore waters,
concurrent with a comprehensive review of the federal oil and gas
program as a whole. See id. at 7624. Additionally, Section 216
directs DOI to outline steps to conserve at least thirty percent each
of U.S public lands and waters by the year 2030. See id. at 7627.
Id. at 6– 7 (cleaned up). Thus, the grounds relied on by SUWA are no longer at issue.
C.

Other Relevant Point on Adequacy of Representation

The court makes one final note. To the extent SUWA is contending the United States does
not represent it adequately because the United States is not turning over every rock or making
every possible argument, or because it may possibly disclaim or settle a claim, the court refers
SUWA to Rule 1 of the Federal Rules of Civil Procedure. Rule 1 states all of the civil rules
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(including those pertaining to discovery and intervention) 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.” Fed. R. Civ. P. 1 (emphasis added). If a party has a litigation tactic
that contravenes Rule 1, and one is balancing interests under the practical effects standard for
intervention, that tactic should not be used to justify intervention but to halt it. To do otherwise is
to ignore the very problem Rule 1 seeks to address. Based on the forgoing, the court concludes
SUWA does not have a right to intervene in this case.
III.

SUWA’S END GOAL
Although the court has concluded that SUWA does not have a right to intervene, SUWA’s

end goal warrants its own discussion. SUWA has made clear that it is not trying to intervene
merely to defend the United States’ title to the roads. Instead, SUWA’s “focused interest in land
protection” is such that it desires for “any right of way be closed to vehicular traffic,” within the
R.S. 2477 context. Renewed Mot. to Intervene, at 13, 16 (ECF No. 410) (emphasis added). 22 The
Tenth Circuit’s intervention standard requires that “practical judgment . . . be applied in
determining whether the strength of the interest and the potential risk of injury to that interest
justify intervention.” San Juan, 503 F.3d at 1199.
In light of the fact that SUWA did not come into existence until seven years after any title
had to have vested in the roads at issue, and that none of the other conservation groups involved
in this case opposed title vesting when any such roads were dedicated to public use, the permissive
intervenors’ present position to shut down every R.S. 2477 road to vehicular use shows a troubling

22

To the extent SUWA is seeking relief differently from the United States, it lacks prudential
standing to do so.
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disregard for the property rights of others. Moreover, it shows that any interest they have is an
after-the-fact creation.
Furthermore, SUWA’s (in its collective status) desire to shut down R.S. 2477 roads
disregards the impact such an action would have on rural communities. If successful, SUWA’s
action would have the practical effect of precluding those with physical limitations from enjoying
the beauties of Kane County because they lack the stamina to hike into an area having no roads.
Given such detrimental impacts, SUWA’s end goal is concerning.
Ironically, one could argue that roads help keep Kane County pristine. Roads keep various
forms of transportation on a designated path so that the land adjoining them may remain
undisturbed by vehicular traffic. For now, though, SUWA cannot use this case to reach its end
goal.
LIMITED AND DISCRETIONARY PERMISSIVE INTERVENTION
SUWA is a limited permissive intervenor in this case. Restrictions have been placed on
SUWA’s role to ensure manageability of the case and a fair process for the original parties. The
restrictions have been detailed in different permissive intervention orders. On September 9, 2019,
the court issued a Fourth Amended Permissive Intervention Order (ECF No. 550) in this case and
the other R.S. 2477 road cases. For reasons discussed below, that order further limited SUWA’s
role in this case.
Recently, SUWA has moved in one of the other R.S. 2477 cases to lift the restrictions and
return to the Third Permissive Intervention Order. See Mot. to Return (ECF No. 160 in Case No.
2:12-cv-452). Based on statements made in a motion and the court’s ruling above, the court has
reason to believe SUWA will seek for the same relief in this case and other similar R.S. 2477 road
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cases. Mot. for Leave to File Mot. to Return, at 2 (ECF No. 724) (“SUWA intends to file a single
omnibus motion in this case seeking to return to the Third Permissive Intervention Order in all
R.S. 2477 cases currently operating under the Fourth Permissive Intervention Order”) (emphasis
added)). Accordingly, the court addresses here whether the restrictions on SUWA’s role should
be lifted. And similar to past decisions, this ruling will apply in all cases to which the Fourth
Amended Permissive Intervention Order now applies.
I.

BACKGROUND
SUWA has no claims or defenses that it can raise under R.S. 2477 or the Quiet Title Act.

Any defenses it may wish to raise are defenses of the United States and not its own. Despite this
fact, at a global hearing on intervention in the R.S. 2477 road cases, SUWA had “at least 18 lawyers
from national and international firms,” present “as well as experienced local attorneys who have
been retained and [would] apply the resources necessary to properly defend this case.” Hearing
Tr., at 25 (ECF No. 93 in Case No. 2:11-cv-1045) (emphasis added). It informed the court “[w]e
intend to litigate [the R.S. 2477 cases] aggressively using every resource available to us.” Id. at
77.
While the court appreciated SUWA’s candidness in that moment, it was clear SUWA had
the intent to take a lead role in this litigation. A lead to which it had no right to take. 23 A lead that
could well harm the original parties who do have a right to be before the court.

At the time of the global hearing, the Tenth Circuit had affirmed this court’s decision that
SUWA could not intervene as of right in Kane County (1) because the United States would
adequately represent its interests. See Kane County v. United States, 597 F.3d 1129 (10th Cir.
2010). The Tenth Circuit had also affirmed the denial of SUWA’s motion to intervene as of right
in another quiet title action three years before that. See San Juan, 503 F.3d at 1167. The court
saw no substantive difference in the adequacy of representation in Kane County (1) and the other
R.S. 2477 cases pending before the court.
23

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When considering whether a party may permissively intervene, “the court must consider
whether the intervention will unduly delay or prejudice the adjudication of the original parties’
rights.” Fed. R. Civ. P. 24(b)(3). Based on SUWA’s representations and show of its litigation
team, the court concluded, “[i]f SUWA were allowed to intervene, without strict limitations, . . .
this case would become ‘fruitlessly complex or unending,’ to the prejudice of the parties.” Sevier
County v. United States, No. 2:12-cv-452, 2013 WL 2643608, at *4 (D. Utah June 12, 2013)
(emphasis added) (citation omitted); Kane County (2) Order, at 2 (ECF No. 181) (adopting same
reasoning for conditions stated in Sevier County).
SUWA, however, had represented at the global intervention hearing that it had access to
evidence that the federal government did not have. Hearing Tr., at 25 (ECF No. 93 in Case No.
2:11-cv-1045). The court was persuaded that if SUWA did have such evidence, then it could be a
backstop to the United States. 24 To ensure SUWA acted only as a backstop, and not as a lead to
the detriment of the original parties, the court set specific conditions on SUWA’s participation. It

In relation to SUWA’s Fifth Motion to Intervene, the court asked SUWA to detail what
additional evidence it would have presented at trial on the issue of scope. SUWA responded that
it would have presented its own aerial imagery expert. Mot. to Intervene, at 24 (ECF No. 607).
SUWA admits that the United States presented such an expert who was qualified. Id. The United
States’ expert looked at aerial imagery from 1953, 1974, and 2016. Id. SUWA’s expert, however,
also looked at imagery from the 1960’s, but SUWA has failed to show or explain how that altered
the analysis presented by the United States about whether a road was present or not. Id. SUWA
only asserted that its expert engaged in a nuanced analysis to show the degree that the road was
present. Id. at 24. The court can tell the nuanced degree, however, from the evidence presented
by the United States. Finally, SUWA asserts it had an expert historian who could have discussed
federal regulations and their practical implementation on such things as range improvements. Id.
at 26. To the extent such testimony would have been permissible, and not improper testimony on
legal conclusions, the United States also presented testimony from an expert historian who
addressed range improvement projects and other similar historical information. Thus, SUWA’s
evidence merely shows how well-prepared the United States was in its defense and that it
vigorously pursued and presented the same type of evidence that SUWA did.

24

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did so based on its discretionary authority and in aid of the “efficient conduct of the proceedings.”
United States v. Albert Inv. Co., Inc., 585 F.3d 1386, 1396 (10th Cir. 2009) (quotations omitted)
(citing San Juan, 503 F.3d at 1189; Beauregard, Inc. v. Sword Servs., LLC, 107 F.3d 351, 352–53
(5th Cir. 1997) (“It is now a firmly established principle that reasonable conditions may be imposed
even upon one who intervenes as of right.”)).
From the time the court placed limitations on SUWA’s role, SUWA has bristled over the
restrictions and sought to thwart them so it could take the lead and act as a full party. Its actions
have hindered the resolution of these proceedings to the actual detriment of the original parties.
When a limited permissive intervenor’s rights and actions surpass that of the original parties,
something is wrong, and the course needs to be corrected. The court now turns to just a few
examples of SUWA’s conduct in the R.S. 2477 proceedings.
I.

CONDITIONS PLACED BY COURT
A.

Claims and Defenses

Although this court allowed SUWA to permissively intervene, it stated, “SUWA is
prohibited from asserting new claims, cross-claims, counterclaims, or defenses in this matter.”
Order, at 3 (ECF No. 181) (emphasis added). Prior to Kane County (2), the court had experience
with SUWA, as an amicus party, in Kane County (1). In its amicus capacity, SUWA raised several
statutes of limitation defenses that required a significant amount of Plaintiffs’ time and the court’s
time to address. Ultimately, the court concluded that none of them had merit, see Kane Cnty.,

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Utah, 934 F. Supp. 2d at 1360–64, which ruling was affirmed on appeal, 772 F.3d 1205 (10th Cir.
2014). 25
When this court ruled on SUWA’s defenses in Kane County (1), it noted the following:
[W]hen the United States initially filed its Answer [in Kane County
(1)], it asserted a statute of limitations defense. After conducting
discovery on the issue, however, the United States concluded that
none of its actions was sufficient to show an adverse claim against
Kane County. It therefore stipulated that the statute of limitations
had not run. Given that the United States is the very entity that was
involved in these matters, and not SUWA, it is in a better position
to determine if the United States asserted an adverse claim against
Kane County.
Kane Cnty., Utah, 934 F. Supp. 2d, at 1364 (internal citations omitted). Recognizing that (1)
SUWA had not added anything meaningful in Kane County (1) when it raised the defenses it did,
(2) the United States had exercised proper judgment in defending title and adequately protected
SUWA’s interests, and (3) both the parties and the court had expended unnecessary resources to
address issues raised by SUWA, the court sought to avoid the same problem in the new R.S. 2477
road cases. It therefore prohibited SUWA from asserting new defenses in the R.S. 2477 road cases.
On May 30, 2014, the United States filed a Motion for Partial Dismissal, which asserted
the claims in Garfield County were barred by Utah Code Ann. § 78B-2-201 on statute of limitations
grounds. Mot. to Dismiss, at 58–60 (ECF No. 135 in Case No. 2:11-cv-1045). SUWA requested
leave to file a memorandum in support. It acknowledged it could not raise new defenses and

The Tenth Circuit’s ruling addressed two memorandum decisions issued by the court. A portion
of the court’s rulings were reversed by the Tenth Circuit, but none of those portions involved the
court’s rulings pertaining to SUWA’s defenses.
25

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represented that its brief merely “expand[ed] upon certain points” the United States had already
raised. Mem. re Leave to File, at 2 (ECF No. 137 in Case No. 2:11-cv-1045).
Contrary to SUWA’s representations, its brief raised a new defense. It did not expand upon
the United States’ argument that Plaintiffs’ claims were barred by a statute of limitations. Instead,
it argued that § 78B-2-201 is not a statute of limitations at all, but a statute of repose. Mem. in
Supp., at 21 (ECF No. 137-2) (stating “SUWA is compelled to write separately . . . because the
United States fails to note” § 78B-2-201 is a statute of repose).
The State originally filed an objection to SUWA’s motion. Mem. in Opp’n (ECF No. 138
in Case No. 2:11-cv-1045). Later, however, it asked for an extension to respond substantively to
the defense raised by SUWA. Mot. for Extension (ECF No. 141 in Case No. 2:11-cv-1045). After
the State filed its opposition to both the United States’ brief and SUWA’s, Mem. in Opp’n (ECF
No. 147 in Case No. 2:11-cv-1045), the court granted SUWA’s motion to file its supporting brief,
and made it retroactive to June 27, 2014, to conform the record. Order (ECF No. 151 in Case No.
2:11-cv-1045).
The court still had the inherent authority to later strike the defense raised by SUWA.
During this same time frame, however, SUWA filed a parallel state action in Tooele County
seeking to enjoin the State Attorney General from litigating all R.S. 2477 cases based on § 78B2-201 being a statute of repose. This placed SUWA in a lead role and multiplied and divided the
proceedings. 26 One way or another, Plaintiffs would have to deal with the defense SUWA raised.

This court temporarily enjoined SUWA from proceeding in the new case under the All Writs
Act, 28 U.S.C. § 1651, until it could determine “whether an injunction is appropriate under [the
Anti-Injunction Act], 28 U.S.C. § 2283.” See Tooele County, Utah v. United States (ECF Nos. 89,
90 in Case No. 2:12-cv-477). SUWA appealed the matter before the court issued that analysis,
and in 2016, the Tenth Circuit struck down the injunction on the ground that it did not meet the
26

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Prior Utah cases addressing § 78B-2-201 had always applied it as a statute of limitations.
Certification Order, at 7–8 (ECF No. 211); see also (ECF No. 169 in Case No. 2:11-cv-1045). The
cases, however, had not directly addressed whether § 78B-2-201 was a statute of repose. “[I]n
deference to the State’s right to determine the meaning of its laws,” the active judges, assigned to
the R.S. 2477 road cases in this district, certified the question to the Utah Supreme Court on April
17, 2015. Certification Order, at 3, 9 (ECF No. 211).
On July 26, 2017, the Utah Supreme Court issued its ruling. It concluded that § 78B-2201 on its face may be read as a statute of repose. But such a construction was “absurd and could
not have been intended by the legislature.” Garfield Cnty., v. United States, 2017 UT 41, ¶ 1, 424
P.3d 46. Consequently, based on the absurdity doctrine, the Utah Supreme Court construed the
statute as a statute of limitations. Id.
When the Tenth Circuit issued its en banc ruling in San Juan County, Utah v. United States,
503 F.3d 1163 (10th Cir. 2007), Judge Kelly authored a concurring decision that was joined by
five other judges. They expressed concern over the newly adopted “practical effect” test for
intervention due to “the substantial ‘practical effect’ an intervenor may have on litigation.” Id. at
1209. They noted “an intervenor in a quiet title action seeking to maintain the land’s current use
has every incentive to use its participation to postpone a final decision on the merits, thereby
prolonging its use at the expense of the parties’ need to have a final adjudication of the title.” Id.
Although the concurring judges did not “suggest that SUWA [had] engaged in delaying tactics in

Anti-Injunction Act requirements. Tooele Cnty., Utah v. United States, 820 F.3d 1183, 1192 (10th
Cir. 2016). This court respects that judgment. It does not negate the fact, however, that SUWA
multiplied the proceedings.
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[the San Juan] lawsuit,” they noted “the potential for abuse is very real.” Id. at 1209, n.7.
Unfortunately, in the present case, those observations have proved all too true when SUWA has
acted to circumvent the court’s limitations on SUWA’s role in this case. 27
For over two years, Plaintiffs’ time and resources were taxed as they addressed SUWA’s
arguments before the Utah Supreme Court, which defense was ultimately rejected because it would
have “work[ed] such absurd results when applied in the R.S. 2477 cases that” the Utah Supreme
Court “was required to apply [its] absurdity doctrine and reform the statutes.” Garfield Cnty.,
2017 UT 41, ¶ 19, 424 P.3d at 57.
A two-year delay in an R.S. 2477 context means the roads at issue have indefinite road
signs to guide the public and a lack of maintenance—both of which impact safety—because the
parties do not know who holds title. It also means evidence is lost because the witnesses who have
knowledge about a road’s use pre-1976 are aging. Some are in poor health, and others have died
during the pendency of this litigation. The harm arising from the delay is real, and it has occurred
because SUWA thwarted the court’s order and insisted on taking a dominant role.
After its statute of repose defense was struck down by the Utah Supreme Court, SUWA
filed another new defense. 28 Similar to the first time, SUWA denied it did so. Hearing Tr., at 55–
56 (ECF No. 430). In its most recent briefing, SUWA continues to defend its actions by stating

Judge Kelly further observed, “even SUWA’s non-abusive appeals [in San Juan] had the
‘practical effect’ of delaying the resolution of [that] lawsuit for three years.” San Juan, 503 at
1209 n.7. The effects that SUWA has had, and can have, on this case is quite real.
28
Compare SUWA’s Answer, at 197 (ECF No. 421) (asserting ninth affirmative defense that
“Plaintiffs have failed to accept, or demonstrate acceptance, of any R.S. 2477 right-of-way claimed
herein”) with United States’ Answer, at 202–03 (ECF No. 420) (asserting only eight affirmative
defenses).
27

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that it did not know that its Answer had to “track[] verbatim with the United States’ Answer.”
Reply Mem., at 10 (ECF No. 713). SUWA’s reply is disingenuous. The court never said SUWA’s
Answer had to track verbatim with the United States’ Answer. Instead, the court’s order prohibited
SUWA from raising new defenses. Order, at 3 (ECF No. 181). The first eight defenses SUWA
raised quoted verbatim the United States’ defenses. Compare United States’ Answer, at 202–03
(ECF No. 420) with SUWA’s Answer, at 196–97 (ECF No. 421). But SUWA then added on a
ninth defense that the United States did not raise. Id. The simple truth is that SUWA ignored the
court’s order. Such conduct confirms that SUWA intends to resist this court’s efforts to control
the litigation and limit SUWA to backstopping the United States as the court originally directed.
B.

Discovery

As stated above, SUWA represented to the court it had unique evidence that the United
States did not have. That is the premise upon which SUWA was allowed in the case. It was not
that it was going to use Plaintiffs’ documents to defend the United States’ title, but that it had its
own information. Accordingly, the court did not allow SUWA to take original party discovery.29
See Order, at 2–3 (ECF No. 181) (authorizing only reasonable third-party discovery).
Then SUWA pressed to expand its limited role. After the Utah Supreme Court issued its
decision, SUWA changed its focus to mounting direct attacks on Plaintiffs. It filed a motion on
September 28, 2017, to lift a restriction so it could propound discovery on the Plaintiffs. Mot. for
Limited Discovery, at 1 (ECF No. 346). The court denied the motion on January 8, 2018. Order,
at 2 (ECF No. 357).

Plaintiffs and the United States were still required to produce a copy to SUWA of any discovery
they exchanged. Order, at 2 (ECF No. 181).
29

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On May 4, 2018, SUWA sought leave to file a motion for scheduling order that again
asserted the restriction needed to be lifted to “confirm SUWA’s discovery rights.” Mot. for Leave
re Scheduling Order, at 8 (ECF No. 389). It said it had approached Plaintiffs to work out an
agreement about SUWA’s discovery rights, but Plaintiffs would not agree. Id. at 10. SUWA then
argued it had “no choice but to approach the Court for relief.” Id. (emphasis added). In actuality,
this was just another attempt to get the court to expand its intervention order.
Nevertheless, based on SUWA’s arguments and this being a bellwether case, the court
issued a Bellwether Trial Scheduling Order that allowed SUWA to propound non-duplicative
discovery on the parties, but only after SUWA obtained permission from the court. Bellwether
Order, at 1 (ECF No. 406). Thus, while modifying its order, the court simultaneously placed a
different restriction to ensure SUWA would not abuse that modification.
Despite the court’s ruling, SUWA demanded discovery in a letter to Plaintiffs on
September 14, 2018. It was six pages, single spaced, and asserted that Plaintiffs’ production of
discovery was lacking. Letter, at 2 (ECF No. 516-10). It further contended that SUWA may have
some follow up for additional discovery in the future. Id. It then directed Plaintiffs to produce
specific portions of the discovery no later than September 28, 2018. Id. at 5. SUWA did not seek
leave of the court to pursue such discovery. It attempted to argue, however, that Plaintiffs were at
fault for not engaging in a meaningful meet and confer with them. See Fourth Mot. to Intervene,
at 28–29 (ECF No. 516). Moreover, it still contends that “[n]o order from the Court prohibited
SUWA from corresponding with the other parties, regarding discovery or otherwise.” Reply
Mem., at 11 (ECF No. 713). Again, SUWA’s response misses the point. Issuing a six-page, single
spaced document to Plaintiffs about documents Plaintiffs were to produce to SUWA constitutes
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discovery. Whether the discovery is formal or informal, it is still discovery. These end runs around
the conditions set by the court are unacceptable. They show a disregard for the court’s rulings,
and they continue to multiply the proceedings by an intervenor who was only supposed to have a
limited role.
C.

Motions

The court also restricted SUWA from filing motions without leave of court. By having to
ask to file a motion, the limitation was meant to reflect such motions should be infrequent and
made with care. As stated above, the court intended for the original parties to lead the case, and
not have their attention and the court’s attention diverted by SUWA.
While SUWA dutifully filed motions for leave to file a motion most of the time, those
actions merely had the appearance of compliance with the purpose behind the limitation. The
court recognized it was frequently addressing motions filed by SUWA, but it failed to comprehend
just how far SUWA had gone from the restrictions the court had imposed. In truth, SUWA filed
about four times as many motions as any other party before the court imposed further restrictions
on September 5, 2019. 30 In hindsight, the court recognizes how much SUWA dominated the
proceedings by its motion practice, until SUWA was further limited in its role, and that the court
should have stopped its filings earlier to prevent the parties from having to address the issues raised
by SUWA.

The court has separated out the motions for leave to file a motion from the motion itself and not
double counted them. The court also excluded counting motions similar to the following type:
pro hac vice motions; motions to extend time to file a brief; motions to file excess pages; and
motions to vacate a hearing. The court focused on the period from April 22, 2013, when SUWA
filed its first motion to intervene on this docket, to September 5, 2019, when SUWA’s role was
further limited.
30

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The court notes, however, that when the court did deny a motion for leave to file a motion,
SUWA ignored that denial. One of the instances occurred when SUWA sought leave on May 15,
2018, to file another motion to intervene as of right. Mot. for Leave re Mot. to Intervene (ECF
No. 398). The court denied the request. Dkt. Text Order (ECF No. 402).
Despite having denied the request, during the next hearing on another matter in this case,
SUWA said it had “some limited comments [it] would like to make.” Hearing Tr., at 8 (ECF No.
418). SUWA then proceeded to argue about how it needed to build its defenses and needed the
discovery limitations lifted. See id. at 8–24. It further argued how things have changed and why
intervention as of right was appropriate. Id. at 19–24. In other words, it argued its motion to
intervene, which the court had already disallowed. SUWA also asked to lodge its brief. Id. at 20.
The court granted permission to lodge it, id. at 30, but four days after the hearing, SUWA filed its
brief as a motion. See Motion to Intervene (ECF No. 410). Thus, even when SUWA was denied
leave to file a motion, that denial only meant SUWA sought ways around it. SUWA had its motion
fully heard, and it later filed its motion, rather than lodging it as the court directed.
During the same hearing, after SUWA said it had some limited comments to make, it pulled
up a power point presentation and said it was skipping past many of the slides. Hearing Tr., at 9
(ECF No. 418). After making its intervention arguments, SUWA’s counsel stated, “[t]ypically it
is my practice when I present a slide to the court here to lodge that. May I have leave to file the
electronic copy of what I presented to you.” Id. at 30 (emphasis added). The court allowed the
filing based on how the statement was presented. Thereafter, SUWA lodged a twenty-five page,
one-sided, slide presentation that presents multiple arguments, including full argument on its
motion to intervene. See Notice re Visual Presentation (ECF No. 407). The slide presentation was
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not limited to the few slides presented in court. Moreover, contrary to its representations to the
court during the hearing, SUWA has filed no other visual presentations in Kane County (2), the
Garfield County case, or the Tooele County case. In other words, SUWA’s practice had been not
to file slide presentations despite SUWA’s representation to the contrary. SUWA used these
tactics to affect the record. A record it only has access to because the court allowed it to intervene
permissively.

SUWA has abused that access through its excessive motion practice and

gamesmanship.
D.

Nature of Representations to the Court

During a hearing where SUWA stated its planned to put on a “vigorous” defense, SUWA
said its “vigorous advocacy” is required under the “rules of professional conduct,” and therefore
its actions could not be “an abuse or a prejudice.” See e.g., Hearing Tr., at 11, 16, 18 (ECF No.
418). Being an advocate, however, does not excuse SUWA’s conduct in ignoring the court’s
orders. It also does not excuse counsel from the care required when making representations to the
court. SUWA has failed to exercise the proper care. The court uses SUWA’s Fourth Motion to
Intervene to illustrate this point.
SUWA said it “has largely been a mere bystander” in this litigation. Fourth Mot. to
Intervene, at 2 (ECF No. 516). The above facts do not bear this out.
It also said that the “Trump administration’s decision to gut the Grand Staircase-Escalante
National Monument . . . rescind[ed] federal protection over all or part of twelve of the fifteen
Bellwether routes at issue in this case.” Id. at 15. This implies there is no federal protection of
the routes. Yet, the routes remain on federal land under BLM management.

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SUWA also represented that during a seventeen-month period, 31 when SUWA was not a
permissive intervenor in this case, “Plaintiffs took a slew of depositions, none of which SUWA
was permitted to participate in, and ten of which Plaintiffs now intend to use at trial.” Id. at 18.
This implies SUWA had no involvement in the depositions. That is incorrect. SUWA was
permitted to attend the depositions and ask questions through the United States, which it did do.32
See Mem. in Opp’n, at 5–6 and Attached Exhibits (ECF No. 523).
SUWA further represented it could not “issue its own discovery,” which also is not true.
Mot. to Intervene, at 18 (ECF No. 516). As long as third-party discovery was reasonable, SUWA
was allowed by the court’s order to issue subpoenas. Order, at 2 (ECF No. 181). Unfortunately,
SUWA abused this right by consistently issuing subpoenas that were overbroad. See e.g., Mem.
Dec., at 5 (ECF No. 394) (quashing subpoena because “for five categories of information,” SUWA
sought “all documents” related to the 770 roads claimed by Kane County and the 730 roads claimed

31

This court has been assigned Kane County (1) since November 2008. It was assigned case
management of Kane County (2) on March 13, 2013, along with the other R.S. 2477 cases. See
Mem. Dec. (ECF No. 78). On April 17, 2013, this court allowed SUWA to attend all preservation
depositions before its Motions to Intervene were addressed. Minute Entry (ECF No. 89). On May
31, 2013, this court transferred Kane County (2) back to the presiding judge due to a pending
dispositive motion. Docket Order (ECF No. 121). At that point, SUWA’s motions to intervene
had not been fully briefed and because the court was no longer assigned the case, it did not address
the motions to intervene. On June 17, 2014, the presiding judge referred the case back to this court
for consideration of SUWA’s two pending Motions to Intervene. Order (ECF No. 171). The court
ruled on the motions on September 10, 2014. See Order (ECF No. 181). This is the seventeenmonth period referenced by SUWA. The court notes that on August 29, 2015, the presiding judge
recused from this case (ECF No. 252), but this court continued to address all case management
issues. This case was then formally assigned to this court on January 26, 2018 (ECF No. 363).
32

Once SUWA was admitted as a permissive intervenor, the court amended its ruling so SUWA
could ask questions directly, but subject to time limitations. Order, at 3 (ECF No. 181); see also
Second Amended Permissive Intervention Order, at 3 (ECF No. 184).
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by Garfield County, even though this case is only focused on 15 roads presently to ensure proper
management and avoidance of undue burdens).
SUWA also said it could not assert a new defense without obtaining permission. Mot. to
Intervene, at 18 (ECF No. 516). That is incorrect. SUWA is prohibited from asserting new
defenses—period. Order, at 3 (ECF No. 181). There is no provision in the court’s intervention
order allowing for leave on this subject, 33 but SUWA has ignored that limitation.
SUWA also asserted the preservation depositions were one-sided, with only the Plaintiffs
taking them. See Mot. to Intervene, at 19–20 (ECF No. 516). Yet, the intervention order allowed
SUWA to seek leave to depose witnesses not listed by Plaintiffs. Order, at 2 (ECF No. 181).
All of these representations were made in one document. The court does not believe it
necessary or useful to detail all of the other instances when SUWA has misrepresented a
proceeding, or acted contrary to a court order, but they exist not only in the record of this case, but
in the other R.S. 2477 cases this court is assigned and/or managing. Such conduct is not
appropriate for any party, much less a party that is a limited permissive intervenor.
On September 5, 2019, the court ruled on SUWA’s fourth motion to intervene, and further
limited SUWA’s role as a permissive intervenor for case management purposes, including to

33

See original Memorandum Decision on Intervention, Sevier County v. United States, No. 2:12cv-452, 2013 WL 2643608, at *5 (D. Utah June 12, 2013) (stating “SUWA is prohibited from
asserting new . . . defenses in the Road Cases,” and that when making “an argument not made by
the United States,” that argument “shall be limited in scope to the existing claims or defenses in
the case”); see also Modified Order re Permissive Intervention, at 4 (ECF No. 124 in Case No.
2:11-cv-1045 and Modified Order, at 4 (ECF No. 91 in Case No. 2:12-cv-452) (stating the same);
Second Amended Permissive Intervention Order, at 3–4 (ECF No. 184) (same); Third Amended
Permissive Intervention Order, 3 (ECF No. 405) (same); Fourth Amended Permissive Intervention
Order, at 3 (ECF No. 550) (same).
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ensure manageability of the case and to avoid further delays. See Mem. Dec., at 37 (ECF No.
549); Fourth Amended Permissive Intervention Order, at 2 (ECF No. 550). It also limited
SUWA’s role to help ensure a fair process for the parties, thereby avoiding further harm them. See
Mem. Dec., at 37.
The additional limitations imposed on September 5, 2019, have proven helpful with case
management and did shift the case back to focusing on the original parties. Unfortunately, the
court’s detailed warning in the September 5, 2019 decision has not had an impact on SUWA’s
continued pattern of mischaracterizing information to gain an advantage or its sharp litigation
practices as discussed next.
II.

SUWA’S CONTINUED CONDUCT
A.

Overreaching

Based on the Intervention Ruling, pertaining solely to the issue of scope and not ownership,
SUWA now contends the Intervention Ruling necessarily applies to ownership, so SUWA must
be allowed to intervene on all issues in Kane County (2). The court agrees with Kane County that
such overreaching has “become a standard practice” of SUWA. County’s Mem. in Opp’n to
Intervention Mot., at 21 (ECF No. 649). Such conduct continues to multiply the proceedings.
B.

Representations about Width

SUWA also continues to misstate the width issue. After Plaintiffs expressly stated they do
not plan to increase the width of the roads in this case, SUWA asserted Plaintiffs’ representation
was “especially bizarre.” Reply Mem., at 5 (ECF No. 654). SUWA represented that “Plaintiffs
from the outset of [Kane County (2)] have in fact been asking this Court to permit them to open
every closed bellwether route and expand every bellwether route into a highway of at least 66
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feet.” Id. SUWA cited the County’s Amended Complaint in this case to support SUWA’s
representation. Id. at 5 n.16. SUWA’s representation has a partial truth to give it credibility, but
SUWA coupled it with an exaggeration or mischaracterization to obtain SUWA’s desired outcome.
As the court stated above, however, there is a difference between the travel surface width and the
non-travel surface width. To the extent SUWA is implying this litigation is meant to change the
travel surface of every bellwether route to 66 feet, that is not accurate. 34
C.

May 19, 2022 Representations

Another event also discloses that, despite the court’s September 5, 2019 admonition,
SUWA still is not being candid with the court and appears to be engaged in further gamesmanship.
The court held a Status Conference on May 19, 2022 in Kane County (1). “SUWA informed the
court that preservation depositions were going to resume on June 6, 2022 in another case.” Dkt.
Text Order (ECF No. 725 in Case No. 2:10-cv-1073). SUWA asked for the court to revoke the
Fourth Amended Permissive Intervention Order and reinstate the Third Permissive Intervention
Order on the reported ground that it would allow SUWA to participate more fully at the upcoming
depositions. “SUWA represented to the court that it did not consult with counsel for Kane County
[about the issue] because they were not going to be involved in the depositions.” Id.

On its website, SUWA has engaged in the same types of characterizations. State’s Opp’n to
Returning to the Third Amended Permissive Intervention Order, at 5 (ECF No. 162 in Case No.
2:12-cv-452). “In an entry . . . entitled ‘Hoax Highways,’ SUWA represents to the public” that
“the overwhelming majority” of the roads “‘are wash bottoms, cow paths, and two-tracks in the
desert, which the state and counties seek to improve (by paving, for example) and widen up to
sixty-six feet—about as wide as ten passenger cars.’”
Id. (quoting https://suwa.org/issues/phantom-roads-r-s-2477/). The court will discuss more about
the Sevier County case in the next section.
34

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Because the Third and Fourth Permissive Intervention Orders are “not applicable in Kane
County (1), and the County in which depositions [were] to be taken need[ed] notice about SUWA’s
motion, the court instructed SUWA to file a Motion for Leave to File in the appropriate case.
SUWA stated it would do so.” Id. SUWA, however, did not do what it said it would do. “Instead,
SUWA filed its motion in this case, which is Kane County (2) vs. United States.” Id.
To reiterate, SUWA informed the court that it did not consult with Kane County about its
proposal because Kane County would “not be involved in the June 6, 2022 depositions.” Yet,
SUWA filed the motion in the Kane County (2) case and did not provide notice to the relevant
county about its intentions. In the motion for leave to file the motion, SUWA represented that it
intended “to file a single omnibus motion in [Kane County (2)] seeking to return to the Third
Permissive Intervention Order in all R.S. 2477 cases” then subject to the Fourth Permissive
Intervention Order, unless directed to file its motion in all such cases. Mot. for Leave, at 2 (ECF
No. 724 in Case No. 2:10-cv-1073) (emphasis added). The application to “all” also went beyond
the scope stated at the May 19, 2022 hearing. Moreover, rather than depriving one county of
notice, SUWA’s motion would have denied all relevant counties of notice had it been permitted to
file a single omnibus motion in Kane County (2).
This recent chain of events is indicative of how SUWA has litigated in these road cases.
Whenever it is afforded any leeway, problems arise. And SUWA continues to disregard the rights
of others in pursuit of its own interests.

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D.

Bull Valley Gorge

In its Fifth Motion to Intervene, SUWA references the Bull Valley Gorge case 35 to support
that SUWA should be allowed to intervene as of right in this case. The Bull Valley Gorge case
does not support that proposition and is another example of how SUWA’s ignores the rights of
others.
Bull Valley Gorge is a narrow slot canyon that intersects the Skutumpah road in Kane
County. The underlying facts of the Bull Valley Gorge case pertained to whether a bridge that
crosses the canyon exceeded the scope of the Skutumpah right-of-way and required BLM
consultation. Skutumpah is an adjudicated R.S. 2477 right-of-way, but its scope has not been
determined yet. That issue is before the court in Kane County (1).
Even though none of the facts relating to the bridge or Skutumpah are at issue in this case,
SUWA argued in its motion that the United States could not defend itself in the Bull Valley Gorge
case, and still adequately represent SUWA’s interests in this one. Reply Brief, at 7–8 (ECF No.
713). Due to the narrow scope of the Bull Valley Gorge case, and that Skutumpah is not at issue
in this case, the court disagrees Bull Valley Gorge precluded the United States from adequately
representing SUWA in this case. That said, SUWA has since dismissed the Bull Valley Gorge
case voluntarily, see (ECF No. 53 in Case No. 2:20-cv-539), so any asserted tension is no longer
at issue. SUWA’s actions in the Bull Valley Gorge case, however, are relevant here. Accordingly,
the court now turns to them.

The case name for the Bull Valley Gorge case is Southern Utah Wilderness Alliance v. United
States Bureau of Land Management, No. 2:20-cv-539 (D. Utah).
35

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Tragically, “[i]n 1954, a truck went over the [Bull Valley Gorge] bridge and became tightly
wedged in the slot canyon. Earthen materials were filled in over the truck to rebuild the bridge
after the accident.” Mem. Dec., at 2 (ECF No. 356 in Case No. 2:08-cv-315). Other repairs
occurred over the years. Then in or about March 2019, either a flash flood washed the bridge away
or the bridge collapsed taking “away approximately eighty percent of the bridge.” Id. “[T]hat
stretch of Skutumpah had to be closed.” Id. This was a problem because “Skutumpah has served
as an important road between two communities for many years.” Id.
After “submitting plans to the BLM” about how it intended to replace the bridge, Kane
County installed a reengineered bridge in 2020. 36 Id. SUWA then sued the BLM in the Bull Valley
Gorge case “on the bases that the BLM had misclassified the nature of the project and [had] failed
to conduct a necessary analysis under the National Environmental Policy Act (“NEPA”). 37 Id.
Notably, however, SUWA did not name Kane County as a party even though (1) the County has
an adjudicated R.S. 2477 right-of-way for Skutumpah, (2) the bridge at issue is Kane County’s
property, 38 and (3) an underlying issue pertained to whether the bridge fell within the scope of
Kane County’s right-of-way for Skutumpah.
As the court stated above, SUWA refuses to recognize the rights of others when it disagrees
with those rights. Even though the County now has an adjudicated right-of-way for the Skutumpah

The County did not disturb the truck that is lodged in the slot canyon and formed the basis for
the prior bridge. Amended Mot. to Intervene, at 8 (ECF No. 49 in Case No. 2:20-cv-539).
36

The court does not express an opinion about whether the bridge replacement constituted
maintenance or an improvement.
37

Kane County requisitioned and paid for the bridge. Amended Mot. to Intervene, at 2–3, 14
(ECF No. 49 in Case No. 2:20-cv-539).
38

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road, SUWA excluded the County as a participant when it filed suit, potentially to the County’s
harm.
Before the County attempted to intervene to defend its rights, another judge in this district
entered a decision in the Bull Valley Gorge case that has far reaching implications if it is followed
in other cases. 39 See S. Utah Wilderness All. v. United States Bureau of Land Mgmt., 551 F. Supp.
3d 1226 (D. Utah 2021) (hereinafter the “Bull Valley decision”).
In 2005, the Tenth Circuit issued Southern Utah Wilderness Alliance v. Bureau of Land
Management, 425 F.3d 735 (10th Cir. 2005) (hereinafter the “2005 Case”). The Tenth Court
grappled with the parameters of an R.S. 2477 right-of-way and what rights were attendant to title.
Id. at 741–42. It recognized too loose or too tight of an interpretation could have unintended
effects. Id. at 742. One of the rights that was before the Court was whether a county had to consult
with the BLM before it did work on a right-of-way. Road crews from three counties had graded
sixteen roads located on federal lands without notifying the BLM. Id. The counties asserted their
R.S. 2477 rights allowed them to engage in such activities, but SUWA filed suit and asserted the
counties’ actions violated FLPMA, NEPA, and the Antiquities Act, 16 U.S.C. § 431. Id. at 742–
43. Thus, the issue before the Tenth Circuit pertained to the statutory interpretation of R.S. 2477.
“R.S. 2477 is a federal statue and it governs the disposition of rights to federal property, a
power constitutionally vested in Congress.” Id. at 762 (citations omitted). Additionally, “[t]he
construction of grants by the United States is a federal not a state question.” Id. (quotations and

Shortly after the decision issued, the Bull Valley Gorge case was transferred to this court because
it became intertwined with the scope issue that remains in Kane County (1) for Skutumpah. Mem.
Dec., 5–6 (ECF No. 356 in Case No. 2:08-cv-315).

39

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citations omitted). Nevertheless, “it is not uncommon for courts to ‘borrow’ state law to aid in
interpretation of federal statute.” Id. (emphasis added).
Accordingly, in the 2005 Case, the Tenth Circuit applied these principles and borrowed
certain portions of common law to establish the parameters of R.S. 2477 rights because “when
Congress granted rights of way” under R.S. 2477, it was aware of and incorporated the common
law pertaining to the nature of public highways and how they are established.” Id. at 763–64. In
other words, the R.S. 2477 statutory rights are based on principles of common law, but the rights
still remain statutory because they were incorporated therein. Accordingly, the Court’s discussion
of common law must be read in that context. The discussion separated out “maintenance” from
“improvements” as the boundary for R.S. 2477 rights. Id. at 748–49.
In the Bull Valley Gorge decision, however, the Court stated that the consultation
obligation arising from the maintenance versus improvement differentiation was only a matter of
common law. Bull Valley Gorge, 551 F. Supp. 3d at 1240–41. Because the Administrative
Procedures Act does not permit review of common law matters, the court concluded the APA was
inapplicable in the Bull Valley Gorge decision. Id. at 1242. The court then set a new standard for
how or when the BLM must act when a county proposes a project and reversed the BLM’s final
agency action under that standard. 40 Id. at 1244. The Bull Valley Gorge decision arguably reached
an erroneous legal conclusion and has the potential to impact Kane County negatively on future
projects.

After reversing the BLM, the Court set the matter for further briefing. Bull Valley Gorge, 551
F. Supp. 3d at 1244. For reasons stated below, however, the Bull Valley Gorge decision ultimately
was never implemented in that case and had no effect on the bridge.
40

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Counsel for Kane County is the same counsel who appeared before the Tenth Circuit in the
2005 Case. It knows what issue was before that Court. It also knows best what actions it took
relative to the Bull Valley Gorge bridge. Had SUWA not excluded the County when it filed suit,
the County’s viewpoints could have been heard before the Bull Valley Gorge decision issued.
Shortly after Kane County moved to intervene, however, SUWA voluntarily dismissed the Bull
Valley case with prejudice. Compare Mot. to Intervene (ECF No. 36 in Case. No. 2:20-cv-539)
(filed on Sept. 8, 2021) with Stipulation of Dismissal (ECF No. 53 in Case No. 2:20-cv-539) (filed
on Oct. 27, 2021).
Essentially, SUWA “will do whatever it wants to do.” Kane Cnty.’s Memo. in Opp’n, at
23 (ECF No. 649 in Case No. 2:10-cv-1073). Accordingly, the court concludes the limitations
placed on SUWA’s role are still necessary to facilitate case management and ensure a fair process
for the original parties. The Fourth Amended Permissive Intervention Order shall therefore remain
in place in all cases to which it presently applies.
CONCLUSION
For the reasons stated above, the court DENIES SUWA’s motion to intervene as of right
(ECF No. 607) in Kane County (2). The Fourth Amended Permissive Intervention Order shall
remain in place in all cases to which it presently applies. In the event there is any question, the
court informs SUWA that if it wishes to appeal this decision, the Fourth Amended Permissive
Intervention Order does not preclude SUWA from filing the requisite Notice of Interlocutory
Appeal.

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DATED this 6th day of June, 2022.
BY THE COURT:
__________________________________
Clark Waddoups
United States District Judge

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