Tenth circuit holding opens way for RS 2477 lawsuits

Posted: Oct 12, 2007

Written by

Public Land News

TheTenth U.S. Circuit Court ruled last week that an environmental group may not intervene in an RS 2477 right-of-way (ROW) court case as long as the federal government is adequately arguing the case. That presumes environmentalists and the feds are on the same side.

But the court in a 154-page decision October 2 said environmentalists are entitled to attempt to intervene in so-called Quiet Title litigation if they believe the feds are not defending their rights adequately. District courts that are hearing Quiet Title cases would decide if the environmentalists could

The en banc Tenth Circuit decision is important because it sets an immediate precedent for a half-dozen Quite Title cases that are already before the courts in Utah and for many thousands of potential lawsuits Utah counties are expected to file to obtain RS 2477 ROWs.

Shawn T. Welch, an attorney for San Juan County, the original plaintiff in the Quiet Title case at issue, said, "There is one undeniable holding - the court denied intervention because the U.S. is adequately defending title." Welch is with the Pruitt Gushee firm in Salt Lake City.

Heidi McIntosh, an attorney for the environmental group the Southern Utah Wilderness Alliance (SUWA), sort of agreed. SUWA sought to intervene in the original court case. "A plurality of judges said we would have to show our executive partners were not adequately protecting our interests before we could intervene," she said. "As soon as the federal government flags at all in defense of the (road) we're in."

At the same time McIntosh said the Tenth Circuit decision was something of a victory for her side because it granted SUWA an ultimate right to intervene. "The hardest fought issue was the question of whether we had an interest sufficient to intervene," said McIntosh. "The county and the feds were arguing
that this was a private dispute and we had no role in it."

The Tenth Circuit decision refers the immediate case, San Juan County v. U.S., No. 04-4260 of October 2, to the U.S. District Court in Utah. That panel will use the Tenth Circuit holding as a guide in deciding whether environmentalists may intervene.

At issue in the case is who has the right to control an unpaved, 10-mile long jeep trail called the Salt Lake Road that provides access to Canyonlands National Park. At the behest of SUWA and other conservation groups the Park Service closed the road in 2003. San Juan County then took the Park Service decision to court and claimed the way had been used for decades for access to the area. Thus it constituted an RS 2477 ROW, the county argued. "Unfortunately, the lawsuit is being fought over this unique road rather than some regular BLM road," said Welch, the San Juan County attorney.

SUWA's McIntosh believes that BLM is in cahoots with Utah counties in their campaign to obtain RS 2477 ROWs for off-highway vehicle (OHV) use. As evidence she cites a proposed travel management plan for the 1.8 million-acre Moab area of August 24. "The Moab BLM is trying to turn the area into an ORV playground," she said. "They took the counties' RS 2477 claims as a starting point."

The Tenth Circuit decision on SUWA's right to intervene is the second major RS 2477 holding by the court in two years. In another landmark decision, Southern Utah Wilderness Alliance v. BLM, Nos. 04-4071 and 04-4073 of Sept. 9. 2005, the court ruled that BLM could not adjudicate the validity of RS 2477 ROW assertions. It said only a federal court had that power.

The Tenth Circuit judges split a half-dozen ways in the October 2 decision, with at least two majority decisions (one concurring with the other) and several dissenting decisions. The majority, though, agreed with the U.S. District Court in Utah that SUWA did not have standing to intervene.

"We hold that SUWA did not overcome the presumption that the Federal Defendants would adequately represent its interest," said the majority at one point. "The district court properly denied SUWA's application to intervene as of right." That decision was written by Judge Paul J. Kelly.

But in a dissent Judge Carlos F. Lucero said, "Should the government change its position at a critical point in the litigation or settlement negotiations, SUWA will be left as a mere protestor forced to fight the rearguard action by renewing its motion to intervene at a late stage in the proceedings."

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