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.
Kane County encompasses approximately 1.6 million acres of federal public land, nearly 1.3 million acres of which lie within the Grand Staircase-Escalante 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 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
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 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 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." Id. at 772. With respect to the first of these issues, the district court concluded:
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:
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.
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 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, 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
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.
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-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
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.).
For the reasons outlined above, we conclude the district court did not err in 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 Stilwell 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
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 (9th 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.
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).