DENVER (CN) — A 10th Circuit panel on Monday allowed environmental groups to intervene in dozens of disputes between the U.S. and Utah over the ownership of roads running through pristine wilderness.
"The district court's scope determination will dictate how Kane County can use its right-of-way, for instance as a two-lane vehicular road, a two-track jeep trail, a bridle path or a foot path,” wrote U.S. Circuit Judge Gregory Phillips, in a 33-page opinion published Monday. A Barack Obama appointee, Phillips was joined on the opinion by Joe Biden-appointed U.S. Circuit Judge Veronica Rossman.
“Contrary to the district court's view, the scope determination is not about the United States' exclusive title to property; it is about how Kane County can use its right-of-way across federal public land,” Phillips added.
Kane County, Utah, sued the United States on Oct. 28, 2010, claiming ownership of roads under an 1866 frontier-era law granting rights of way to local governments that built and maintained roads across federal land. Though the law was repealed in 1976 by the Federal Land Policy and Management Act, a party can still lay claim to any road owned during the law's 90-year lifespan.
To date, the U.S. and Utah counties have become entangled in dozens of nearly identical lawsuits disputing ownership of some 12,000 roads covering 36,000 miles.
Senior U.S. District Judge Clark Waddoups, appointed by George W. Bush, initially dismissed the Southern Utah Wilderness Alliance’s efforts to intervene in the first of many Kane County cases, but the 10th Circuit reversed in 2019, allowing the group to enter. When a second Kane County case came up, Waddoups said he had seen enough evidence in the bellwether trial to reassert his earlier denial, once again pushing out the environmental group.
The alliance appealed. Finding no material distinction between the earlier and current road disputes, the 10th Circuit reversed, once again allowing the alliance and other environmental groups to intervene.
The panel noted that although the U.S. and Southern Utah Wilderness Alliance both want to block Utah’s ownership and development of the roadways, the federal government does not necessarily represent the organization’s interests in the underlying dispute.
"In litigating on behalf of the general public, the government is obligated to consider a broad spectrum of views, many of which may conflict with the particular interest of the would-be intervenor,” Phillips wrote. “This potential conflict exists even when the government is called upon to defend against a claim which the would-be intervenor also wishes to contest."
Stephen Bloch, the alliance's legal director applauded the decision.
“We're pleased by the ruling, which confirms SUWA and our co-movants’ rights to participate as full parties in the state of Utah’s and others RS 2477 lawsuits,” Block told Courthouse News in a phone interview. “These lawsuits are about Utah's efforts to assert control over federal public land throughout the state and SUWA and other conservation groups have a specific interest in fighting those efforts.
Senior U.S. Circuit Judge Paul Kelly, appointed by George H.W. Bush, issued a brief concurring opinion arguing that the bifurcation of “scope” and “title” is impractical in a quiet title dispute.
The Utah Attorney General’s Office did not respond immediately to requests for comment. Representatives from the U.S. Department of Justice declined to comment.
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