FILED

United States Court of Appeals

Tenth Circuit

March 8, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KANE COUNTY, UTAH, a political

subdivision,

Plaintiff-Appellee,

v. No. 09-4087

UNITED STATES OF AMERICA,

 Defendant-Appellee.

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

SOUTHERN UTAH WILDERNESS

ALLIANCE, WILDERNESS

SOCIETY, SIERRA CLUB,

 Movants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. No. 2:08-CV-00315-CW)

Heidi J. McIntosh, Southern Utah Wilderness Alliance, Salt Lake City, Utah

(Steven H.M. Bloch, Southern Utah Wilderness Alliance, Salt Lake City, Utah;

Edward B. Zukoski and Andrea Zaccardi, Earthjustice, Denver, Colorado, with

her on the briefs), for Movants to Intervene-Appellants Southern Utah Wilderness

Alliance, Wilderness Society, and Sierra Club.

Shawn T. Welch (Kendra L. Shirey and Janna B. Custer with him on the brief), of

Holme, Roberts & Owen LLP, Salt Lake City, Utah, for Plaintiff-Appellee Kane

County, Utah.
2

Aaron P. Avila, Attorney, Environment & Natural Resources Division, United

States Department of Justice, Washington, D.C. (John C. Cruden, Acting

Assistant Attorney General; Brett L. Tolman, United States Attorney; John K.

Mangum, Assistant United States Attorney; James E. Karkut, Office of the

Regional Solicitor Department of the Interior, Salt Lake City, Utah; Romney S.

Philpott, Attorney, Environment & Natural Resources Division, United States

Department of Justice, Washington, D.C., with him on the brief), for DefendantAppellee United States.

Before KELLY, EBEL, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Southern Utah Wilderness Alliance, The Wilderness Society and the Sierra

Club (collectively SUWA) appeal from the district court’s denial of their motion

to intervene in this action brought by Kane County, Utah, to quiet title to several

purported rights-of-way across federal public lands within Kane County. 

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

Kane County encompasses approximately 1.6 million acres of federal

public land, nearly 1.3 million acres of which lie within the Grand StaircaseEscalante National Monument (Monument). The non-Monument federal public

land that lies within Kane County includes wilderness study areas, as well as

portions of land that SUWA is advocating for protection under its long-proposed

America’s Red Rock Wilderness Act (a piece of legislation that has been
1

 The two roads actually encompass five segments of Kane County routes:

Mill Creek Road includes segments of three different Kane County route numbers

(K4400, K4410, and K4405) and Bald Knoll Road includes segments of two

different Kane County route numbers (K3930A and K3935).

2

 “R.S. 2477 was repealed by the Federal Land Policy and Management Act

of 1976, Pub.L. No. 94-579, § 706(a), 90 Stat. 2743, 2793. But that Act explicitly

protect[ed] R.S. 2477 rights-of-way in existence at the time of its enactment. 

Because such a right-of-way could have come into existence without any judicial

or other governmental declaration, much litigation continues over whether rightsof-way were in fact created on public land.” San Juan County v. United States,

503 F.3d 1153, 1168 (10th Cir. 2007) (internal quotation marks and citations

omitted).

3

repeatedly introduced, but never adopted by Congress). Historically, Kane

County officials have maintained public transportation routes that pass through or

abut these areas of federal public land.

On April 25, 2008, Kane County initiated this action by filing a complaint

against the United States under the Quiet Title Act, 28 U.S.C. § 2409a, seeking to

quiet title to two roads, Mill Creek Road and Bald Knoll Road, both of which are

located in western Kane County, approximately 20 miles northeast of Kanab,

Utah, and cross portions of federal public land.1

 The complaint alleged that under

a Reconstruction-era law known as Revised Statute 2477 (R.S. 2477)2

, Kane

County had “accepted R.S. 2477 rights-of-way for” these two roads “on public

lands not reserved for public uses.” App. at 19. More specifically, the complaint

alleged that Kane County had designated both roads “as public highways and

[had] expend[ed] public funds to construct and maintain these roads prior to [the]

October 21, 1976” repeal of R.S. 2477. Id. In addition, the complaint alleged
4

that both roads had been “continuous[ly] use[d] as public thoroughfares for a

period in excess of ten years prior” to the repeal of R.S. 2477. Id. at 20. The

first claim alleged in the complaint sought to quiet title to Kane County’s

purported “R.S. 2477 public highway right-of-way for the Mill Creek [R]oad,”

“includ[ing] a right-of-way width of 66 feet . . . .” Id. at 35. The second claim

alleged in the complaint sought, in similar fashion, to quiet title to Kane County’s

purported R.S. 2477 public highway right-of-way for Bald Knoll Road,

“includ[ing] a right-of-way width of 66 feet . . . .” Id. at 36.

On July 14, 2008, the United States filed an answer asserting six specific

defenses to the two claims alleged in Kane County’s complaint: (1) the district

court “lack[ed] jurisdiction over the subject matter of th[e] action due to [Kane

County]’s failure to satisfy the ‘particularity’ requirement of the Quiet Title Act

and thereby invoke a waiver of the United States’ sovereign immunity under the

Act,” id. at 61; (2) the district court “lack[ed] jurisdiction over the subject matter

of th[e] action due to [Kane County]’s failure to allege facts sufficient to show

that it c[ould] satisfy the statute of limitations set forth in the Quiet Title Act,”

id.; (3) the district court “lack[ed] jurisdiction over the subject matter of th[e]

action due to [Kane County]’s failure to allege a justiciable case or controversy

between the parties,” id.; (4) Kane County “failed to state a claim upon which

relief c[ould] be granted,” id.; (5) Kane County “failed to join indispensable

parties under Rule 19 of the Federal Rules of Civil Procedure with respect to the
5

claimed rights-of-way that cross[] private land,” id. at 62; and (6) Kane County’s

“claims are barred by the statute of limitations in the Quiet Title Act.” Id.

On September 24, 2008, Kane County moved for leave to file an amended

complaint. Attached to the motion was a proposed amended complaint asserting

seven additional claims to quiet title to ten additional roads: Skutumpah, Swallow

Park/Park Wash, North Swag and Nipple Lake Roads in western Kane County;

and Sand Dune, Hancock, and four Cave Lakes Roads in southwestern Kane

County. Id. at 98-129. The United States did not oppose the motion. On October

30, 2008, the district court granted Kane County’s motion. Id. at 143. Kane

County’s amended complaint was subsequently filed on November 10, 2008. 

On November 26, 2008, SUWA moved for leave to intervene as of right “as

a defendant in th[e] action pursuant to Fed. R. Civ. P. 24(a)(2).” Id. at 210. “In

the alternative, SUWA request[ed] leave to permissively intervene pursuant to

Fed. R. Civ. P. 24(b).” Id. Both Kane County and the United States opposed

SUWA’s motion to intervene. 

On April 6, 2009, the district court issued a memorandum decision and

order denying SUWA’s motion to intervene. After outlining the requirements for

intervention as of right under Rule 24(a)(2), the district court noted that Kane

County and the United States disputed “only the issues of whether SUWA, as a

practical matter, ha[d] an interest that m[ight] be impaired or impeded and

whether SUWA’s interest [wa]s adequately represented by the existing parties.” 
6

Id. at 772. With respect to the first of these issues, the district court concluded:

 As is evident from the Complaint, the only issue in this case is

whether Kane County can establish that it holds title to the roads at

issue. How the lands adjacent to the roads will be managed and

whether the roads themselves will be open to the public once title is

determined are not issues that are relevant to the determination of the

quiet title action. In this case, it is evident that SUWA does not have

a “legal interest” in the usual understanding of that word in a title

context. While SUWA obviously has an interest in the sense that it

cares deeply about the outcome of the decision, it does not claim title

to the roads at issue. This conclusion was evident by SUWA’s

concession at oral argument that, were the United States and Kane

County to resolve all of the title issues as to the roads without

SUWA’s consent or participation, SUWA would have no right to

continue with the action and the action would be dismissed.

 Based on the specific facts in this case and the differences

between the issues raised by Kane County and those in San Juan

County, the court finds that SUWA has not established the element

of having an impaired interest in the litigation. The issues raised in

this case do not include the same factual underpinnings of continuing

controversy over roads into areas that have been protected by the

National Park Service as did the roads at issue in San Juan County. 

Id. at 773-74 (emphasis added). The district court further concluded that SUWA

had “failed to show that its interests in th[e] case [we]re not adequately

represented by the United States,” id. at 774:

 The only issue to be resolved, as SUWA conceded at oral

argument, is whether the United States or Kane County holds title. 

Whether Kane County can establish the requirements to show that it

holds title to the roads based on R.S. 2477 will turn entirely on the

historic use of these roads by the public for the period required under

Utah law prior to 1976. In neither its briefing nor at a [sic] oral

argument was SUWA able to proffer any evidence to which it would

have access about the historical use of the roads that is not available

to the United States. Moreover, SUWA does not present evidence

that it has any special expertise, experience or knowledge with
7

respect to the historic use of the roads that would not be available to

the United States.

 Indeed, the primary focus of SUWA’s briefing in support of its

motion is its long history of advocating to preserve the wilderness

characteristics of the lands and the risks that opening the roads to the

public may have on preserving such wilderness areas. None of these

facts is relevant to the determination of whether Kane County holds

title. * * * In San Juan County, the court reminded that “nothing we

have said would contravene the holding that Rule 24(a)(2) does not

require intervention as of right for the purpose of presenting only

irrelevant argument or evidence.” The only arguments that SUWA

appears to be prepared to make in this case would not be made by the

United States are those relating to the management of the land, which

would be irrelevant and not admissible in evidence.

 The United States argues that it has been and will be vigorous in

defending its claim to legitimate title to the roads. The record does

not compel a different conclusion. Absent evidence showing that the

United States will not vigorously defend this position, there is no

basis to allow intervention by SUWA.

Id. at 775-76 (emphasis added). Lastly, the district court rejected SUWA’s

request for permissive intervention, concluding “there [wa]s nothing in the

briefing nor the arguments to suggest that SUWA would offer any additional

defenses or claims relevant to the issues to be decided that would not already be

fully and completely advocated by the United States,” and that “SUWA d[id] not

share any claim or defense . . . that [wa]s different from any other member of the

public who cares deeply about the outcome of th[e] litigation.” Id. at 777.

II

In this appeal, SUWA challenges both the district court’s denial of its

motion to intervene as of right under Rule 24(a)(2), and the district court’s denial
8

of its motion for permissive intervention under Rule 24(b). We review de novo a

district court’s ruling on a motion to intervene as of right under Federal Rule of

Civil Procedure 24(a)(2). Coal. of Ariz./N.M. Counties for Stable Econ. Growth

v. Dep’t of the Interior, 100 F.3d 837, 840 (10th Cir. 1996). We review rulings

on permissive intervention under Rule 24(b) for abuse of discretion. Alameda

Water & Sanitation Dist. v. Browner, 9 F.3d 88, 89-90 (10th Cir. 1993). 

I. Intervention as of right

“Rule 24(a)(2) provides for intervention as of right by anyone who in a

timely motion ‘claims an interest relating to the property or transaction that is the

subject of the action, and is so situated that disposing of the action may as a

practical matter impair or impede the movant’s ability to protect its interest,

unless existing parties adequately represent that interest.’” WildEarth Guardians

v. U.S. Forest Serv., 573 F.3d 992, 995 (10th Cir. 2009) (quoting Fed. R. Civ. P.

24(a)(2)). It is undisputed in this case that SUWA timely moved to intervene. 

Thus, the propriety of SUWA’s motion to intervene as of right hinges on: (1)

whether SUWA has an interest relating to the quiet title claims alleged in Kane

County’s first amended complaint that may, as a practical matter, be impaired or

impeded by the disposition of the litigation; and (2) whether the United States, in

defending against Kane County’s quiet title claims, will adequately represent

SUWA’s interest. Proceeding directly to the latter of these inquiries, we conclude

that, even assuming SUWA has an interest in the quiet title proceedings at issue,
3

 The remaining six members of the en banc court concluded that

intervention by SUWA was improper both because SUWA lacked a legally

protectable interest in the quiet title action, and because, in any event,

intervention was barred by sovereign immunity. Those six judges, together with

the three judges who joined the lead opinion, comprised a majority that

effectively affirmed the district court’s denial of intervention.

9

SUWA has failed to establish that the United States may not adequately represent

SUWA’s interest. Consequently, we agree with the district court that SUWA was

not entitled to intervene as of right under Rule 24(a)(2).

a) Adequacy of the United States’ representation of SUWA’s interests

“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.’” San Juan County, 503 F.3d at 1203 (quoting Fed. R. Civ. P. 24(a)(2)). 

In San Juan County, this court, sitting en banc, was presented with a nearly

identical “adequacy of representation” question, but was unable to reach a

consensus in resolving that question. To begin with, only seven of the thirteen

members of the en banc court concluded that SUWA had a legally protectable

interest in the quiet title action, and thus only those seven members reached the

merits of the “adequacy of representation” question.3

 The lead opinion in San

Juan County concluded, in a section garnering the votes of only three of those

seven members, that a presumption of adequate representation applied because the

government and SUWA shared the “single objective” of defending exclusive title

to the roads at issue. Id. at 1204 (opinion of Hartz, J.). In that same section, the
10

lead opinion further concluded that SUWA could not overcome this presumption

because it provided “no reason to believe that the [government] ha[d] any interest

in relinquishing . . . any part of the federal title to the road” at issue. Id. at 1207.

In contrast, four of the seven members concluded that “SUWA [had]

satisfied its minimal burden of showing that the [government might not]

adequately represent SUWA’s interests in th[e] litigation.” Id. at 1227 (Ebel, J.,

concurring in part, dissenting in part). This conclusion was based, in pertinent

part, on the notion that the quiet title action at issue would not “require[] a simple

binary determination” of whether “San Juan County ha[d] a right-of-way

easement or not,” but instead would involve a “more nuanced” determination that

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

scope of that right-of-way if it d[id] exist.” Id. at 1228. 

Although San Juan County does not mandate a particular outcome in this

case, we are persuaded, based upon comparing the arguments made by SUWA in

this case regarding the adequacy of representation question with the rationales

adopted by the two competing contingents in San Juan County, that SUWA has

failed to establish that its interest in the instant case will not be adequately

represented by the federal government. As noted, the four members of the en

banc court who concluded that intervention should have been granted in San Juan

County emphasized that the quiet title action at issue there would involve a

“nuanced” determination encompassing “not only whether there [wa]s any right-
11

of-way, but also the nature and scope of that right-of-way if it d[id] exist.” Id. at

1228 (Ebel, J., concurring in part, dissenting in part). In seeking to intervene in

this case, however, SUWA made no such assertion regarding the quiet title claims

alleged by Kane County. Instead, SUWA argued below only that (1) the history

of adversarial relations between itself and the Bureau of Land Management

(BLM) demonstrated that the United States might not adequately represent

SUWA’s interests, and (2) “BLM ha[d] not shown a willingness to defend federal

control of its routes in the face of [prior] County claims and actions.” App. at

244. Moreover, SUWA conceded at the hearing on its motion before the district

court that “[t]he only issue to be resolved . . . [wa]s whether the United States or

Kane County h[eld] title” to the roads at issue. Id. at 775. To be sure, SUWA’s

counsel attempted, upon questioning at oral argument before this court, to argue

that SUWA and the United States might disagree as to the potential scope of Kane

County’s purported rights-of-way. But any argument in that regard has, for

purposes of this appeal, been waived. See Singleton v. Wulff, 428 U.S.106, 120

(1976) (“[A] federal appellate court does not consider an issue not passed upon

below.”); Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143 (10th Cir. 2009)

(“Absent extraordinary circumstances, we will not consider arguments raised for

the first time on appeal.”). Further, SUWA has not challenged on appeal the

district court’s findings that SUWA failed to (a) “proffer any evidence to which it

would have access about the historical use of the roads that [wa]s not available to
12

the United States,” or (b) “present evidence that it ha[d] any special expertise,

experience or knowledge with respect to the historic use of the roads that would

not be available to the United States.” App. at 775.

As for the two arguments actually asserted below by SUWA, we are not

persuaded they are sufficient, either alone or together, to establish that the federal

government will fail to adequately represent SUWA’s interests. Indeed, we agree

with the federal government that those arguments “rel[y] on inapplicable cases

involving intervention in challenges to administrative action as well as irrelevant

speculation about and critiques of potential litigation strategies by the” federal

government, and “SUWA’s disagreement with the United States’ land

management decisions in the past does not demonstrate that the United States is

an inadequate representative in this title dispute, which is ultimately grounded in

non-federal activities that predate those management decisions.” Gov’t Br. at 20. 

Moreover, we note that, as was the case in San Juan County, the federal

government “ha[s] displayed no reluctance [in these proceedings], at least so far

as the record before us shows, to claim full title to” the roads at issue, and

“SUWA has provided no basis to predict that the [federal government] will fail to

present . . . an argument on the merits that SUWA would make.” 503 F.3d at

1206 (opinion of Hartz, J.).

b) Conclusion

For the reasons outlined above, we conclude the district court did not err in
13

rejecting SUWA’s motion to intervene as a matter of right under Rule 24(a). 

Assuming, for purposes of argument, that SUWA has a valid interest in these

quiet title proceedings, it has failed to establish, at this stage of the litigation, that

the federal government will not adequately protect its interest.

II. Permissive Intervention 

Federal Rule of Civil Procedure 24(b) governs permissive intervention. 

Subsection (b)(1)(B) thereof requires the potential intervenor to show that it “has

a claim or defense that shares with the main action a common question of law or

fact.” Further, Rule 24(b)(3) states that “[i]n exercising its discretion, the court

must consider whether the intervention will unduly delay or prejudice the

adjudication of the original parties’ rights.” The grant of permissive intervention

lies within the discretion of the district court. City of Stillwell v. Ozarks Rural

Elec. Coop., 79 F.3d 1038, 1043 (10th Cir. 1996).

In its motion to intervene, SUWA argued, in addressing the possibility of

permissive intervention, that it “intend[ed] to assert claims and defenses that

[we]re in common with those that [we]re at the center of th[e] action: whether the

facts and circumstances of th[e] case support[ed] a finding that Kane County

h[eld] a valid [right-of-way] under R.S. 2477 to” the routes at issue. App. at 247. 

SUWA also noted that “in its proposed answer [it] raise[d] a number of defenses

concerning whether Kane County c[ould] maintain its action under the Quiet Title

Act.” Id. Lastly, SUWA asserted that its “presence in the litigation w[ould] not
14

cause ‘undue delay or prejudice’” because “[t]he parties [we]re at the very

beginning of the case, and SUWA agree[d] to abide by the schedules set by the

[district court].” Id. at 248.

The district court, in denying SUWA’s request for permissive intervention,

first noted that unlike the situation in Kootenai Tribe of Idaho v. Veneman, 313

F.3d 1094 (10th Cir. 2002), the sole case relied upon by SUWA in support of

permissive intervention, the United States in this case had “assert[ed] its intent to

fully defend” against Kane County’s quiet title claims. Id. at 777. Continuing,

the district court concluded that resolution of Kane County’s quiet title claims

would not involve any claims or defenses in common “with SUWA’s asserted

conservation interest.” Id. Rather, the district court concluded, the claims were

“limited to the question of title, an issue . . . adequately represented by the United

States.” Id. Further, the district court noted “[t]here [wa]s nothing in the briefing

nor the arguments to suggest that SUWA would offer any additional defenses or

claims relevant to the issue to be decided that would not already be fully and

completely advocated by the United States.” Id. Finally, the district court

concluded that because “SUWA d[id] not share any claim or defense in th[e]

action that [wa]s different from any other member of the public who cares deeply

about the outcome of th[e] litigation,” “allow[ing] SUWA to intervene . . . under

Rule 24(b) would be an invitation to any member of the public who holds strong

views about the outcome to seek to intervene.” Id.
15

On appeal, SUWA challenges the district court’s ruling, but only very

briefly. SUWA asserts that “the district court abused its discretion because it

erroneously held that SUWA [wa]s obligated to offer ‘additional defenses or

claims relevant to the issue to be decided’ from those offered by the United

States.” Aplt. Br. at 50. SUWA argues “[t]his is clear legal error that warrants

reversal” because “Rule 24(b) contains no requirement that intervenors offer a

separate or additional claim or defense.” Id. (emphasis in original). 

Although SUWA is correct in noting that Rule 24(b) does not require a

permissive intervenor to assert a separate or additional claim or defense, nothing

in the Rule necessarily prohibits a district court, in exercising its discretion under

Rule 24, from taking that fact into consideration (and SUWA has cited no cases

holding that that is an improper consideration under Rule 24(b)). Moreover, even

assuming, for purposes of argument, that the district court erred in relying on this

factor, SUWA has not challenged the three other rationales offered by the district

court for denying SUWA’s request for permissive intervention. Thus, SUWA has

not established that the district court’s decision was “an arbitrary, capricious,

whimsical, or manifestly unreasonable judgment.” See Nalder v. West Park

Hosp., 254 F.3d 1168, 1174 (10th Cir. 2001) (defining abuse of discretion review)

(internal quotations omitted).

AFFIRMED.