PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ KANE COUNTY, UTAH, a Utah political subdivision, Plaintiff - Appellee, STATE OF UTAH, Intervenor Plaintiff - Appellee,

v. UNITED STATES OF AMERICA, Defendant - Appellee, and
SOUTHERN UTAH WILDERNESS ALLIANCE; SIERRA CLUB; THE WILDERNESS SOCIETY; GRAND CANYON TRUST,
Interven or Defendants - Appellants. No. 22-4087 (D.C. No. 2:10-CV-01073-CW) (D. Utah)

________________ _________________ ORDER

________________ _________________ Before HOLMES , Chief Judge, HARTZ , TYMKOVICH , BACHARACH , PHILLIPS , MORITZ , EID , CARSON , ROSSMAN , and FEDERICO , Circuit Judges. *

________________ _________________

* The Honorable Scott M. Matheson and the Honorable Carolyn B. McHugh are recused and did not participate in the consideration of the Petitions. FILED United States Court of Appeals Tenth Circuit 

### September 3, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 22-4087 Document: 010111104340 Date Filed: 09/03/2024 Page: 12 This matter is before the court on petiti ons for rehearing en banc filed by the United States; the State of Utah; and Kane County, Utah (“Petitions”). We also have a response from Appellants. The Petitions and response were circulated to all non-recused judges of the court who are in regular active service. A poll wa s called and resulted in a tie. Consequently, the Petitions are DENIED. See Fed. R. App. P. 35(a) (“[a] majority of the circuit judges who are in regular active service” may order en ba nc rehearing). Judges Hartz, Tymkovich, Eid, Carson, an d Federico voted to grant the Petitions. Judge Phillips has filed a separate concurrence in the denial of en banc rehearing. Judges Hartz and Tymkovich have each written separate ly in dissent. Judge Tymkovich’s dissent is joined by Judges Kelly, Ei d, Carson, and Federico.
Entered for the Court,

CHRISTOPHER M. WOLPERT, Clerk Appellate Case: 22-4087 Document: 010111104340 Date Filed: 09/03/2024 Page: 23 No. 22-4087, Kane County, et al. v. United States of America, et al.
PHILLIPS , Circuit Judge, concurring in the denial of rehearing en banc. This case fails the standard gove rning en banc consideration. See Fed. R. App. P. 35(a)(1) and 10th Cir. R. 35.1(A). Our local rule directs us th at “[a] request for en banc consideration is disfavored,” and that “[e]n banc review is an extraordinary procedure intended to focus the entire cour t on an issue of exceptional public importance or on a panel decision that conflicts with a decision of the United States Supreme Court or of this court.” 10th Cir. R. 35.1(A). In 2019, a panel of this court ruled that Southern Utah Wilderness Alliance (SUWA) had the right, pursuant to Federal Rule of Civil Procedure 24(a)(2), to intervene in the ongoing R.S. 2477 litiga tion in Kane County, Utah. Kane Cnty. v. United States ( Kane III ), 928 F.3d 877 (10th Cir. 2019). The Unite d States, Kane County, and the State of Utah sought en banc review of that 2019 intervention decision, which this court denied. Kane Cnty. v. United States , 950 F.3d 1323 (10th Cir. 2020) (mem.). † Our en banc denial reflected our view that the 2019 decision did not “conflict[] with a decision of the United States Supreme Court or . . . this court,” and indicated our belief that the issues presented were not of “excep tional importance” under Rule 35.1(A). Now, the United States, Kane County, and th e State of Utah seek review of a 2024 panel decision involving the same parties ra ising the same issues and interests—but

† The United States, Kane County, and th e State of Utah unsuccessfully petitioned the United States Supreme Cour t for a writ of certiorari. Kane Cnty. v. United States , 141 S. Ct. 1283 (2021). Appellate Case: 22-4087 Document: 010111104340 Date Filed: 09/03/2024 Page: 34 different alleged rights-of-way—as were at issue in Kane III . The panel concluded that SUWA was entitled to intervene as of right u nder Rule 24(a)(2) of the Federal Rules of Civil Procedure. See Kane Cnty. v. United States ( Kane IV ), 94 F.4th 1017 (10th Cir. 2024). In so ruling, the panel merely applied this court’s circuit precedent, unanimously agreeing that we were bound by Kane III in our disposition of a materially indistinguishable appeal. See id. at 1035 (Kelly, J., concurring) (“Based upon [ Kane
III ] . . . the district court’s denial of SUWA’s motion to intervene on the issue of scope is reversible.”). The petitions now before us s eeking en banc review of Kane IV do not dispute
Kane III ’s binding authority over the Kane IV panel. Nor do they challenge the majority opinion’s application of that precedent to this case. What’s more, petitioners fail to identify any differences between this case and Kane IIIthat would render their nearidentical arguments—that we previously re jected—deserving of the “disfavored” and “extraordinary procedure” of en banc review. 10 th Cir. R. 35.1(A). Instead, in seeking en banc review, the United States, Kane County , and the State of Utah simply wish to reassert their view of perceived flaws in the Kane III decision. But what was true when we denied en banc review of the Kane III decision is true now: The issues presented in this case do not satisfy the standard governing en banc consideration. And particularly in this case, I take issue with petitioners’ attempt to exploit this court’s en banc procedure to revive arguments that they lost years ago. For these reasons, I respectfully submit that the court appropriately denied en banc review in this case. Appellate Case: 22-4087 Document: 010111104340 Date Filed: 09/03/2024 Page: 45 No. 22-4087, Kane County, et al. v. United States of America, et al.
HARTZ , Circuit Judge, dissenting from the denial of rehearing en banc. There is a great deal of litigation in the West regarding rights-of-way over federal land. Every level of government and numerous people and groups are interested in the outcome. Management of the litiga tion could be quite bur densome if all who wished to intervene were pe rmitted to do so. Even litigati on over who is allowed to intervene can, and has been, a severe drain on the courts. The intervention issue is not a simple cut-and-dry matter. Judge Tymkovich’s dissent from the denial of rehearing en banc raises strong arguments that deserve th e attention of the court. I, for one, would greatly benefit from further exploration by th e parties and the court of the legal nuances and pragmatic consequences of in tervention in these cases. It is striking to me that, as Judge Tymkovich points out, every level of government—local, state, and federal— opposes intervention in this ca se. I therefore voted to rehear this matter en banc and dissent from the denial of such rehearing. Appellate Case: 22-4087 Document: 010111104340 Date Filed: 09/03/2024 Page: 56 No. 22-4087, Kane County, et al. v. United States of America, et al.
TYMKOVICH , Circuit Judge, joined by KELLY , EID , CARSON , and FEDERICO , Circuit Judges, dissenting from the denial of rehearing en banc. The panel majority concluded that vari ous environmental groups (SUWA) have the right to intervene in a pr operty dispute between the Un ited States and Kane County, Utah, because the United States does not adequa tely represent their in terests. I continue to believe that (1) the intervenors lack a conc rete injury, and thus lack standing, and (2) the United States will adequately represent SUWA’s interests at trial. To the extent the intervention applicants have some thing to contribute to this cas e, they can do so as amici curiae. This is the rare case where every level of government—federal, state, and local— is aligned. That makes it an exceptional candi date for en banc review, especially when intervention will greatly underm ine the administrability of thousands of pending cases. Our denial of en banc revi ew cut off the oppo rtunity for the United States, Utah, and Kane County to explain the downsid es of intervention in these cases. I therefore respectfully dissent from the denial of en banc rehearing. The Federal Rules of Civil Procedure requir e courts to permit a party to intervene in a case if he “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that dis posing 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 .” Fed. R. Civ. P. 24(a)(2) (emphasis added). The parties in this case concede that SUWA has an interest that this proceeding might impair, Appellate Case: 22-4087 Document: 010111104340 Date Filed: 09/03/2024 Page: 67 “[s]o the only issue in dispute is whether th e district court erred in concluding that the United States adequately repr esents SUWA’s interests.” Kane County v. United States (“Kane IV”) , 94 F.4th 1017, 1030 (10th Cir. 2024). The panel applies the wrong test for de termining adequate representation and, contrary to our precedents, did not require the intervention ap plicants to show that the United States could not adequa tely represent their interest s. The result is a nearly irrebuttable presumption in favor of interven tion for cases that “raise significant public interests”—a presumption that will knee-cap the government’s ab ility to litigate civil cases implicating public policy. To determine whether SUWA’s interests ar e adequately represented, our starting point is the subject of the action. This acti on addresses title to t housands of historical rights of way across federal land, so-called RS 2477 rights of way. Kane IV , 94 F.4th at
1022. Quieting title does not bring any new rights into existe nce nor require evaluation of the public interest. It requires a histori cal inquiry into pre-19 76 land use to clarify existing property right s. The district court’s final de termination of title does not change land management or status. The only issue at trial is the lengt h and width of Kane County’s easements. SUWA presents no sufficient reason to do ubt that the United St ates will continue to defend its title, apart from speculation about settlement negotiations between the parties that it would still be powerless to stop unless allowed intervention. The United States, moreover, seeks rights-of-way that are the narrowest possible based on the historical evidence. Appellate Case: 22-4087 Document: 010111104340 Date Filed: 09/03/2024 Page: 78 As the panel opinion notes, we presume adequate representation “[w]hen a wouldbe intervenor’s and the representative party’s interests are ‘identical.’” Kane IV , 94 F.4th at 1030 (citing Bottoms v. Dresser Industries, Inc. , 797 F.2d 869, 872 (10th Cir. 1986)). The panel concedes that SUWA seeks the sa me relief as the United States: restricting Kane County’s rights of way to “the narrowest width possible.” Id. at 1032. But relying on our precedent in Kane III , it concludes that the identical litigation objective is insufficient to show adequate representation si nce the parties have different motivations. Id. (citing Kane County v. United States (“Kane III”) , 928 F.3d 877, 895 (10th Cir. 2019)). It therefore focused its inquiry on whet her the United States and SUWA “ha[d] identical interests in pursuing [the same] relief”—in other words, the same ultimate motivation—rather than whether they shared an identical objective. Id. This is the wrong question to ask. In determining whether ex isting parties adequately represent an intervention applicant’s interests, we have always consid ered the parties’ identical litigation objectives as opposed to their ultimate motivations in reaching those objectives. For example, we denied intervention in City of Stilwell v. Ozarks Rural Electric Cooperative , reasoning that “[w]hile KAMO’s ultimate motivation in th is suit may differ from that of Ozarks, its objective is identical.” 79 F. 3d 1038, 1043 (10th Cir. 19 96). We emphasized that representation is adequate “when the objec tive of the applicant for intervention is identical to that of one of the parties.” Id. (citing Bottoms , 797 F.2d at 872). Later, in
Tri-State Generation & Transmission Ass’n , we clarified our view that similar “interests” refers to litigation objectiv es rather than ultimate motiv ations, reasoning that “even Appellate Case: 22-4087 Document: 010111104340 Date Filed: 09/03/2024 Page: 89 though a party seeking inte rvention may have different ultimate motivations from the governmental agency, where its objectives ar e the same, we presume representation is adequate.” 787 F.3d at 10 72-73 (internal quotation marks and brackets omitted). See also Pub. Serv. Co. of N.M. v. Barboan , 857 F.3d 1101, 1113-14 (10th Cir. 2017) (“When the applicant and an existing pa rty share an identical legal obj ective, we presume that the party's representation is adequate.”). Since SUWA shares identical litigation ob jectives with the federal government, “we presume adequate representation.” Kane IV , 94 F.4th at 1030 (citing Bottoms 797 F.2d at 872). That conclu sion should have ended the in quiry. Instead, the opinion sidestepped this outcome with the novel co nclusion that SUWA ha d to show identical ultimate motivations. Even if we concluded that no presump tion against interven tion applied, the intervention applicants would bear the burden of establishi ng that the existing litigants did not adequately repres ent their interests. Coal. of Ariz./N.M. Ctys. for Stable Econ. Growth v. Dep’t of Interior , 100 F.3d 837, 844 (10th Cir. 1996). The majority opinion deviates from our precedent by concluding that inadequacy of intervention is presumed in certain cases. Although the intervention app licant’s burden is “minimal” and “[t]he possibility of divergence of interest need not be great” to satisfy this burden, we have always required applicants for interventi on to make some factual showing of inadequacy. Id. “Whether an applicant has an interest sufficient to warrant intervention as a matter of right is a highly fact-specific determination.” Id. at 841. For instance, we found that the United Appellate Case: 22-4087 Document: 010111104340 Date Filed: 09/03/2024 Page: 910 States inadequately represente d an intervenor’s interest due to its reluctance to pursue certain claims, see id. at 845 (noting that the Department of the Interior’s reluctance to protect the spotted owl suggested that its in terests diverged from the intervenor’s), its unwillingness to take a position on whether it would support the applicant’s interest, see Utah Ass’n of Cnties. v. Clinton , 255 F.3d 1246, 1256 (1 0th Cir. 2001) (finding the United States’ silence on whethe r it would represent the applicant’s interest “deafening”), or its outright admission that it may not sh are the same interests as an intervenor, see WildEarth Guardians v. U.S. Forest Serv. , 573 F.3d 992, 996- 997 (10th Cir. 2009) (finding representation inadequa te when government conceded that its interests could diverge from those of the objectors). We have never permitted a party to intervene in the absence of facts in th e record showing that the existing parties would not continue to represent the applicant’s interests. The opinion departs from these precedents. In concluding that the United States inadequately represents SUWA’s interest s, the panel reasoned that since “SUWA’s interests are not ‘identical’ to the United Stat es’ interests . . . no presumption of adequate representation applies.” Kane IV , 94 F.4th at 1033. And since no presumption of adequate representation applied, and the cas e “rais[ed] significant public interests,” intervention was permitted. Id. at 1033-1034. Almost all of our intervention precedents “raised significant public interests.” See Nat’l Farm Lines v. Interstate Com. Comm’n , 564 F.2d 381, 384 (10th Cir. 1977) (permitti ng intervention in a suit challenging the constitutionality of an Interstate Commerce Act provision); Coal. of Ariz./N.M. Ctys. , 100 F.3d at 845 (permitting interv ention in a suit challenging th e Fish and Wildlife Service’s Appellate Case: 22-4087 Document: 010111104340 Date Filed: 09/03/2024 Page: 1011 classification of the spo tted owl as threatened); Utah Ass’n of Cnties. , 255 F.3d at 1254– 56 (permitting intervention in a suit challeng ing the establishment of Grant Staircase Escalante National Monument); Utahns for Better Transp. v. U.S. Dep’t of Transp. , 295 F.3d 1111, 1117 (10th Cir. 2002 ) (permitting intervention in a suit seeking vacatur of the Department of Transportation’s approval of a regional transportation plan); WildEarth Guardians , 573 F.3d at 996-997 (10th Cir. 2009 ) (permitting intervention in a suit challenging the Forest Servi ce’s approval of plans for venting methane gas from a coal mine); and Western Energy Alliance v. Zinke , 877 F.3d 1157, 1168–69 (10th Cir. 2017) (permitting intervention in su it challenging the Bureau of Land Manageme nt’s policies for selling oil and gas leases). In each of these cases, we requi red intervention applicants to show that the existing parties did not adequately represent their interests. In a departure from these precedents, the opinion cites no evid ence in the record suggesting that the United Stat es would fail to defend SUWA ’s interests. Instead, it creates a nebulous near-per se ru le that whenever litig ants seek to interv ene in a case that “raises significant public interests”—whether it is a challenge to public policy, a dispute over public lands, or a regul atory enforcement suit—they may intervene in the suit without having to show that their interests diverge from those of the government. If a case “raises significant public interests,” it will almost certainly affect private interests as well, leaving Rule 24(a)(2)’s last requirement as the only meaningful barrier against intervention. The ultimate consequence of removing that barrier is to replace the Department of Justice, as sole representative of the United States’ interests, with a coterie of private Appellate Case: 22-4087 Document: 010111104340 Date Filed: 09/03/2024 Page: 1112 attorneys general, each of whom could undermine the efficient resolutio ns of these cases. The net effect in this case is that every hiker, dirt-biker, four-wheeler, and land-use enthusiast can join the litigation if they satisfy minimal standing requirements. Appellate Case: 22-4087 Document: 010111104340 Date Filed: 09/03/2024 Page: 12