Lead Opinion
We have granted en banc review in this case to resolve difficult issues concerning intervention under Fed.R.Civ.P. 24. Several conservation groups — Southern Utah Wilderness Alliance, The Wilderness Society, and the Grand Canyon Trust (collectively, SUWA)—seek to intervene in a federal quiet-title action brought by San Juan County, Utah, against the United States, the Department of Interior, and the National Park Service (the NPS). (We will refer to the defendants collectively as the Federal Defendants.) The County sued to quiet title to the right-of-way it claims for Salt Creek Road, “an unpaved and ungraded jeep trail that runs in and out of Salt Creek” in Canyonlands National Park. 69 Fed.Reg. 32,871 (June 14, 2004). Opposed to County control of the road, SUWA applied to intervene as a matter of right under Fed.R.Civ.P. 24(a)(2) and permissively under Fed.R.Civ.P. 24(b). The district court denied the applications, and SUWA appealed.
The original parties to the action, the County and the Federal Defendants (collectively the Appellees), filed briefs supporting the district court’s denial of intervention.
I. BACKGROUND
A. R.S. 2477 Rights-of-Way
The underlying controversy is one of many throughout the West that concern an alleged right-of-way across federal land arising under Revised Statute 2477, enacted by Congress in 1866. R.S. 2477 provided for “right[s]-of-way for the construction of highways over public lands, not reserved for public uses.” An Act Granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for Other Purposes, Ch. CCLXII § 8, 14 Stat. 251, 253 (1866). This statute reflected a “congressional policy promoting] the development of the unreserved public lands and their passage into private productive hands,” S. Utah Wilderness Alliance v. Bureau of Land Mgmt.,
R.S. 2477 was repealed by the Federal Land Policy and Management Act of 1976, Pub.L. No. 94-579, § 706(a), 90 Stat. 2743, 2793.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. Sierra Club,
B. Earlier Litigation
San Juan County’s quest for title to Salt Creek Road stems from its dissatisfaction with restrictions on travel imposed while the road has been under federal control. In 1992 the NPS began preparation of a Backcountry Management Plan for Can-yonlands National Park. See S. Utah Wilderness Alliance v. Dabney,
On August 15, 2000, we reversed the district court, holding that it had used an improper standard of review and remanding for further proceedings. See S. Utah Wilderness Alliance v. Dabney,
Two days later the County, asserting an R.S. 2477 right-of-way through Salt Creek Canyon, informed Canyonlands officials that NPS signs and gates near Salt Creek Road would be forcibly removed by County officials if the NPS did not remove them by December 1, 2000. A few days after the deadline, County officials removed the NPS signs and drove vehicles into the Canyon, allegedly with the NPS’s acquiescence.
SUWA, concerned about the potential environmental damage from these activities, moved to amend its complaint in the ongoing litigation to add the County and the State of Utah as defendants. The proposed amended complaint contended that “[t]he NPS ... has an obligation and duty to determine the validity of property claims adverse to the United States, and to require specifically that the State of Utah and San Juan County demonstrate the validity of its [sic] alleged right-of-way before making a decision or taking agency action allowing use of Salt Creek as a
The district court granted SUWA’s motion to amend on February 1, 2001, stating that addition of the County and the State was “necessary for the complete and just adjudication of this matter.” Id. In addition, the court, with the agreement of the NPS and SUWA, stayed proceedings on all issues — with the exception of whether an R.S. 2477 right-of-way existed — until the NPS’s rulemaking process was completed.
In August 2002 the County and the State separately moved for a partial summary judgment that they held a perfected R.S. 2477 right-of-way in the portion of Salt Creek Road above Peekaboo Spring. The NPS opposed the motions. It advanced several grounds, but the common essence of each ground was that the existence of the right-of-way would need to be determined in a suit under the Quiet Title Act and the County and the State had not filed such a suit (and had not satisfied certain jurisdictional prerequisites for a suit, such as providing 180 days’ notice to the appropriate federal agency). It said that the State and County could file a quiet-title suit by means of a cross-claim and even said, perhaps disingenuously, that it had anticipated that such a cross-claim would be filed. Two weeks later SUWA submitted a short memorandum containing a one-sentence adoption of the NPS’s argument and opposing the summary-judgment motions.
On January 15, 2003, the district court denied the motions for partial summary judgment. It was perplexed, and no doubt perturbed, by the position of the NPS and SUWA:
SUWA has sued the NPS for, among other things, an alleged obligation and duty to determine the validity of property claims adverse to the United States and to require specifically that the State and San Juan County demonstrate the validity of its alleged right-of-way before making a decision or taking agency action allowing use of Salt Creek Canyon as a claimed “highway” right-of-way. The State and County have asked for such a determination regarding their R.S. 2477 claims — a determination which SUWA has sued the NPS to obtain. Now, almost two years after the NPS supported SUWA’s request to name the State and the County as defendants in this action so that the R.S. 2477 issue could be resolved, the NPS and SUWA suddenly assert that the court has no jurisdiction to make such a determination. At the various status conferences that have been held in this case, no mention was ever made by the NPS or SUWA that they were expecting — or demanding — that cross-claims be filed by the State and County. Further, if a claim was necessary to resolve this is*1170 sue, it is unclear why the NPS itself has not asserted cross-claims against the State and County.
Aplt.
[W]hile the NPS and SUWA have achieved their goal of convincing the court that it does not have jurisdiction to entertain motions for partial summary judgment, they have also compelled the dismissal of the State and County as defendants in this action because the State and County have been precluded from defending themselves in this lawsuit, as their only defense in this case is to seek an affirmative determination that they own a valid and perfected right-of-way. The court will not order the State and County — against their wishes — -to file suit against the United States, and the NPS has declined, for whatever reason, to file its own cross-claim against these entities. Because of the legal quagmire created by these unique circumstances and the fact that the State and County have been precluded from defending themselves, the court will not grant any relief against these defendants in this action. Thus, there is no reason for the State and County to be named as defendants in this action. This court never would have granted leave to amend SUWA’s complaint to add these defendants had the NPS and SUWA made clear to the court that the State and County would be required— against their wishes — to sue the NPS as a prerequisite to defending themselves. Thus, the only just result is to dismiss the State and County from this action.
Id. at 9-10.
C. This Litigation
On June 14, 2004, the NPS issued a final rule prohibiting motor vehicles in Salt Creek Canyon beyond Peekaboo Spring and erecting a gate to effect this closure. See 36 C.F.R. § 7.44 (2004). The notice accompanying the decision reflected the NPS’s conclusion that the County and the State held no R.S. 2477 right-of-way: “[I]t has not been shown that a valid right-of-way was constructed during the period when the lands were unreserved. Promulgation of this rule will not affect the ability of the County or State to pursue in an appropriate forum the claim that this is a valid R.S. 2477 right-of-way.” 69 Fed.Reg. at 32,872. Without waiting a day, the County filed this quiet-title action, naming the United States, the Department of Interior, and the NPS as defendants. The first cause of action in its amended complaint, filed on June 30, 2004, claims an R.S. 2477 right-of-way in Salt Creek Road. It alleges that the NPS’s “acts have wrongfully denied [the County] and the public the use of the Salt Creek road and disturbed [the County’s] quiet enjoyment of its R.S. 2477 right-of-way.” Aplt.App. at 17. The second cause of action seeks a declaration that a system of gates put in place by the NPS deprives the County of its use of the right-of-way for vehicular travel.
The County asserts that it acquired its right-of-way before the federal government reserved the land for Canyonlands National Park in 1962. See Nat’l Park Serv., Canyonlands Environmental Assessment Middle Salt Creek Canyon Access Plan, app. 4, at 159 (June 2002) (explaining that land for Canyonlands National Park was withdrawn on April 4, 1962, in anticipation of legislation to establish the Park).
On July 6 and August 4, 2004, the groups comprising SUWA timely sought to intervene as a matter of right and permissively. The district court denied the applications on October 29, 2004, stating:
Well it seems to me that the pleadings define the case in a very narrow fashion and the existence or non-existence of a right-of-way and its length and its breadth are matters which it seems to me are fact driven and while I’m always interested in all the help that the court can get it would appear to me that the parties in this matter have a point.
I am going to deny the motion to intervene on the part of the petitioners, both the motion to intervene as a matter of right and the motion to intervene permissively and we’ll deny that in each instance. It appears to me that the parties may adequately present the necessary materials for an appropriate determination.
However if the prospective interve-nors wish to participate as amicus in the furnishing of material written in nature to the court I’m certainly happy to grant them status as amicus if they so desire in contrast to the status of a party, but I’ll leave that to the necessary requests in the event that people wish to participate in that fashion.
Id. at 198-99. SUWA appeals this ruling. We have jurisdiction under 28 U.S.C. § 1291.
II. STANDING TO INTERVENE
San Juan County first contends that SUWA cannot intervene under either Fed. R.Civ.P. 24(a) or (b) because it lacks Article III standing. Article III of the Constitution limits the jurisdiction of federal courts to Cases and Controversies. U.S. Const. art. III, § 2. The Supreme Court has held that a suit does not present a Case or Controversy unless the plaintiff satisfies the requirements of Article III standing — namely, the plaintiff must (1) have suffered an injury in fact (2) that is fairly traceable to the defendant’s conduct and (3) that is likely to be redressed by a favorable decision. See Bennett v. Spear,
Although it observed that “circuit courts addressing this issue have reached different results,” San Juan County,
On rehearing en banc we adopt the panel’s reasoning on this issue and hold that parties seeking to intervene under Rule 24(a) or (b) need not establish Article III standing “so long as another party with constitutional standing on the same side as the intervenor remains in the case.” Id. at 1206. In that circumstance the federal court has a Case or Controversy before it regardless of the standing of the interve-nor.
III. SOVEREIGN IMMUNITY
A. Description of the Sovereign-Immunity Claim
Before we turn, to the application of Fed.R.Civ.P. 24 to this ease, we must first determine whether granting SUWA intervention under this rule would infringe upon sovereign immunity in litigation under the Quiet Title Act, 28 U.S.C. § 2409a, enacted in 1972. The Federal Rules, of course, ordinarily govern proceedings in federal court. See Fed.R.Civ.P. 1. Under the Rules Enabling Act, “The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals,” 28 U.S.C. § 2072(a), and “[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect,” id. § 2072(b). On the other hand, “[s]uch rules shall not abridge, enlarge or modify any substantive right,” id.; and Fed. R.Civ.P. 82 states that the rules “shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein.”
Judge McConnell’s concurrence (the “SI concurrence”) contends that intervention by SUWA under Rule 24 would improperly expand the district court’s jurisdiction because it would abridge sovereign immunity. The SI concurrence’s sovereign-immunity argument goes far beyond anything presented to this court by the Appellees, who mention sovereign immunity almost in passing with essentially no citation to authority that would clarify the scope of what is being asserted. But questions regarding our jurisdiction must be addressed, so we proceed despite the absence of helpful briefing.
The SI concurrence’s concern about adding SUWA as a defendant is not that the Quiet Title Act bars the addition of all defendants other than the United States. The Act undoubtedly contemplates that the plaintiff can seek to clear title by naming as defendants anyone in addition to the United States who may claim an interest in the property. The statute says that “[t]he United States may be named as a [not the ] party defendant in a civil action under this section to adjudicate a disputed title .... ” § 2409a(a) (emphasis added). And joining other defendants is hardly unheard of. See Amoco Prod. Co. v. United States,
Accordingly, the peculiar sovereign-immunity contention in this case must be the following: Sovereign immunity bars the addition in a quiet-title suit against the United States of a codefendant who claims no interest in the property and supports the United States’ claim of title, even though (1) the Quiet Title Act allows the addition of codefendants of the United States, (2) such a codefendant may be a vigorous advocate of the United States’ title, and (3) the added party would raise no new claim against the United States but would address only a claim on which the United States has consented to be sued.
We find this to be a remarkable proposition. Consider the limited nature of what is at stake. The SI concurrence speaks of the burden that may be imposed on the United States by an intervenor who can “raise new issues, oppose settlements, appeal, and file petitions for certiorari.” SI concurrence at 1210. We address each alleged burden. First, SUWA could not block a settlement. See Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland,
Second, there is no need to resolve at this stage of this case whether SUWA could appeal or seek certiorari when the government does not wish to. We fail to understand the SI concurrence’s statement that “[o]nce SUWA is granted party status at the trial level — in other words, once we hold that the Quiet Title Act permits such participation- — -it would make little sense to hold that the Act precludes such a party’s participation at the appellate level.” SI concurrence at 1219-20. In our view, such a limitation on appeal could make perfect
The remaining “burden” that an interve-nor could impose on the United States in district court would be raising new issues. But the Quiet Title Act’s waiver of sovereign immunity to permit suits “to adjudicate a disputed title to real property in which the United States claims an interest,” 28 U.S.C. § 2409a, inherently encompasses exposure to the risk of having to address every relevant legal theory. Indeed, the court trying the case (even in the absence of any intervenor) can require the government to address a legal theory not raised by the original parties. See Dickerson v. United States,
In other words, the intervention of SUWA would not expose the United States to any burden not inherent in the litigation to which it has consented in the Quiet Title Act. The lawsuit would still concern only the relative rights of the County, the State, and the United States in Salt Creek Road. SUWA would not be adding a new claim; it seeks no coercive judicial remedy against the United States. And every issue, every legal argument, every item of evidence that SUWA might present is one that another party or the court would undoubtedly have the right to present in the absence of SUWA. SUWA may in fact present matters that would not have been presented by other parties or the court, but, from the point of view of the government’s waiver of sovereign immunity, that is a mere fortuity; nothing raised by SUWA would be an expansion of what the government potentially faced at the initiation of the lawsuit. We now discuss whether intervention would nevertheless infringe upon the government’s sovereign immunity.
B. Framework of the Analysis
The SI concurrence cites a number of opinions that purportedly support a sovereign-immunity claim in this case. To analyze those cases properly, we must first distinguish two concepts: (1) sovereign immunity and (2) a condition on a waiver of sovereign immunity. As we shall explain, protection from intervention by an aligned party is neither “an aspect of the government’s immunity,” SI concurrence at 1212, nor a condition on the waiver of sovereign immunity in the Quiet Title Act, see id. at 1212 (referring to “terms of the immunity waiver” of the Quiet Title Act); cf. id. at 1215 (referring to limitations in Quiet Title Act regarding pleading requirements). But treating the two concepts separately will clarify the analysis.
As stated by Alexander Hamilton in The Federalist, “It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual, without its consent.” The Federalist No. 81, at 446 (E.H. Scott ed., 1898). Sovereign immunity is immunity from suit. See Black’s Law Dictionary 766 (8th Ed.2004) (Defining sovereign immunity as “1. A government’s immunity from being sued in its own
Sovereign immunity is to be contrasted with the imposition of conditions on the waiver of that immunity. When the government consents to be sued, it can impose conditions on that consent. See Block v. North Dakota,
The Quiet Title Act waives the government’s immunity from suits to determine title to property in which the plaintiff and the United States both claim an interest. The proper approach in this case would seem to be to analyze whether this waiver is conditioned on a ban on the intervention of parties aligned with the United States who raise no independent claim for relief. We will present that analysis later in this opinion. But the SI concurrence makes an additional argument. We read the SI concurrence as saying that protection from such intervention is not just a condition on the waiver of immunity but is an essential aspect of sovereign immunity that must be explicitly waived by the government. We find no support for that view and strong indications to the contrary in Supreme Court precedent. We proceed to explain.
C. Alleged Restriction on Intervention as Component of Sovereign Immunity
The SI concurrence relies on two Supreme Court opinions for the proposition
The principal opinion relied upon, United States v. Sherwood,
Sherwood was a suit under the Tucker Act, which gave Article III district courts concurrent jurisdiction with the Court of Claims (established under Article I of the Constitution, see
The Court observed that the suit could not have been maintained in the Court of Claims “because that court is without jurisdiction of any suit brought against private parties and because adjudication of the right or capacity of [Sherwood] to proceed with the suit upon the contract of [Kaiser] with the United States is prerequisite to any recovery upon the Government contract.” Id. at 588,
The Supreme Court then raised the possibility that under the Tucker Act or by virtue of the rules of procedure the district court may have jurisdiction not granted the Court of Claims. See id. at 589,
The present litigation well illustrates the embarrassments which would attend the defense of suits brought against the Government if the jurisdiction of district courts were not deemed to be as restricted as is that of the Court of Claims. The Government, to protect its interests, must not only litigate the claim upon which it has consented to be sued, but must make certain that respondent’s right, as against the judgment debtor, to maintain the suit is properly adjudicated. And since the alleged claim for damages is larger than the $10,000 jurisdictional amount the Government must either be subjected to successive suits for partial recoveries of the amount due or must make certain that respondent has legal authority to relinquish the judgment debtor’s claim in excess of $10,000, and that this has been accomplished by the limitation of his demand for judgment to that amount.
Id. at 591,
To repeat, all that Sherwood held was that Sherwood’s claim against Kaiser (which was a predicate for Sherwood’s claim against the United States) was beyond the jurisdiction of the Court of Claims and therefore beyond the jurisdiction of the district court, whose Tucker Act jurisdiction was limited to claims within the Court of Claims’ jurisdiction.
The SI concurrence relies on the following passage:
Th[e incorrect] conclusion [of the lower court] presupposes that the United States, either by the rules of practice or by the Tucker Act or both, has given its consent to be sued in litigations in which issues between the plaintiff and third persons are to be adjudicated. But we think that nothing in the new rules of civil practice so far as they may be applicable in suits brought in district courts under the Tucker Act authorizes the maintenance of any suit against the United States to which it has not otherwise consented. An authority conferred upon a court to make rules of procedure for the exercise of its jurisdiction is not an authority to enlarge that jurisdiction; and the Act ... authorizing this Court to prescribe rules of procedure in civil actions gave it no authority to modify, abridge or enlarge the substantive rights of litigants or to enlarge or diminish the jurisdiction of federal courts.
It is worth noting the role of sovereign immunity in Sherwood. The Court said that a sovereign can impose conditions on its consent to be sued. See id. at 587,
Sherwood has been cited often enough, and it has been the subject of scholarly treatment, much of it critical, see, e.g., 1 William W. Barron, Alexander Holtzoff & Charles Alan Wright, Federal Practice and Procedure, § 127, at 561-63 (1960); 3A James Wm. Moore, Moore’s Federal Practice, ¶ 20.07(3), at 20-55 to 20-58 (2d ed.1987), and suggesting that it be construed narrowly, see 4 Charles Alan Wright & Arthur R. Miller, supra, § 1027, at 131 (limiting Sherwood to the Tucker Act because of the peculiar nature of the concurrent jurisdiction of the Court of Claims); 17 id. § 4101 n. 28, at 262 (describing holding as: “if [a suit’s] maintenance against private parties is a prerequisite to prosecution of the action against the United States, the action must be dismissed”). But it has not been interpreted as standing for the broad proposition asserted by the SI concurrence.
The other opinion relied upon by the SI concurrence is Henderson v. United States,
Henderson filed suit against the United States under the former Suits in Admiralty Act, 46 U.S.C.App. § 741 et seq., repealed Pub.L. No. 109-304, § 19, 120 Stat. 1710 (2006). The statute required that service be made “forthwith.” Id. § 742. Fed.R.Civ.P. 4, however, allows 120 days for service. The Court wrote: “We are ... satisfied that Rule 4’s regime conflicts irreconcilably with Suits in Admiralty Act § 2’s service ‘forthwith’ instruction, and we turn to the dispositive question: Does the Rule supersede the inconsistent statutory direction?”
The SI concurrence contends that Henderson identified “the ‘substantive’ core of sovereign immunity,” which is not “governed by ... generally applicable provisions of the Rules of Civil Procedure.”
The language on which the SI concurrence rests is the Court’s statement that “who may sue” is a “substantive matter[ ].” But “who may sue” refers to who may bring a suit, not who can intervene in an ongoing suit (especially when the interve-nor adds no new claim). The case cited by the Court as illustrating “who may sue” was Sherwood. The Court described Sherwood’s holding in the following parenthetical: “Tucker Act, allowing contract claims against United States, does not authorize joinder of claims between private parties.” Id. at 671 n. 21,
Moreover, and perhaps more importantly, even if protection from intervention were considered a “substantive matter,” it does not follow that it is an inherent component of sovereign immunity. The Court in Henderson distinguished jurisdictional matters — namely, subject-matter and personal jurisdiction' — and substantive matters.
Thus, there is no authority for the assertion by the SI concurrence that in a suit against the government the mere addition of a party (even one who brings no claim) infringes upon sovereign immunity. Indeed, although presented with clear opportunity to do so, the Supreme Court has not even said that joinder of a claim against a private party to a claim against the United States infringes upon inherent sovereign immunity (as opposed to being a violation of a condition on a waiver of sovereign immunity, as in Sherwood).
That opportunity arose in Finley v. United States,
The Supreme Court rejected jurisdiction over the private claim. Although reaffirming precedents that recognized “ ‘pendent’ claim jurisdiction — that is, jurisdiction over nonfederal claims between parties litigating other matters properly before the court,” Finley,
The FTCA, § 1346(b), confers jurisdiction over “civil actions on claims against the United States.” It does not say “civil actions on claims that include requested relief against the United States,” nor “civil actions in which there is a claim against the United States”— formulations one might expect if the presence of a claim against the United States constituted merely a' minimum jurisdictional requirement, rather than a definition of the permissible scope of FTCA actions.... [W]e conclude that “against the United States” means against the United States and no one else.... The statute here defines jurisdiction in a manner that does not reach defendants other than the United States.
Id. at 552-53,
Interestingly, Finley made only one reference to Sherwood:
“It is true that here ... the party seeking to bring the added claims had little choice but to be in federal rather than state court, since the FTCA permits the Federal Government to be sued only there. But that alone is not enough, since we have held that suits against the United States under the Tucker Act ... cannot include private defendants. United States v. Sherwood.”
Id. at 552,
That reaction to Finley was, as they say, swift and sure. The Judicial Improvements Act was enacted 18 months later. The provision pertinent to this case states:
Supplemental Jurisdiction
(a)Except as provided in subsections (b) [relating to diversity jurisdiction] and (c) [granting district courts discretion to decline supplemental jurisdiction in certain circumstances] or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under. Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
28 U.S.C. § 1367(a) (emphasis added).
Section 1367(a) is expressed in general terms, applying to all litigants. There is no mention of sovereign immunity or of the special status of the government as a litigant. Under settled law, as recognized in the SI concurrence, this statute does not waive federal sovereign immunity. See, e.g., Lane v. Pena,
The SI concurrence declares that our reference to Finley, and its aftermath in the enactment of § 1367 and the dictum in Allapattah, “is an extraordinarily slender
Finally, as Judge Ebel states in his dissent, it makes no sense to say that sovereign immunity is infringed by participation on the side of the sovereign’s claim or defense. No one thought to suggest in Trbovich,
In sum, ■SUWA’s intervention would not infringe upon the inherent sovereign immunity of the United States because SUWA raises no new claims against the government and does not seek damages or any coercive sanction against it.
D. Alleged Restriction on Intervention as Condition of Waiver of Sovereign Immunity
We now turn to what we believe is the proper question to be addressed: Does the Quiet Title Act condition its waiver of sovereign immunity on a prohibition against joinder of intervenors on the side of the United States who add no claims to the litigation? The clear answer is No.
The SI concurrence attempts to find support in the language of the Quiet Title Act for a prohibition on intervention. But the effort fails. The SI concurrence quotes § 2409a(a) of the Act, which states in pertinent part: “The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest.....” As we have already noted, however, the statute says only that the United States may be a (not the) party defendant; it sets no restriction on what other parties may participate, and, as one might expect, courts have permitted other parties to participate, see discussion, supra, at 1172.
The SI concurrence also relies oh § 2409a(d), which states:
The complaint shall set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States.
Moreover, such a condition would be anomalous in light of the origin of the Quiet Title Act. Before enactment of the Quiet Title Act the United States could bring quiet-title actions. It was just that persons with claims adverse to the United States could not. As summarized in Block v. North Dakota,
Prior to 1972, States and all others asserting title to land claimed by the United States had only limited means of obtaining a resolution of the title dispute — they could attempt to induce the United States to file a quiet title action against them, or they could petition Congress or the Executive for discretionary relief. Also, since passage of the Tucker Act in 1887, those claimants willing to settle for monetary damages rather than title to the disputed land could sue in the Court of Claims and attempt to make out a constitutional claim for just compensation.
The Quiet Title Act resulted when “Congress sought to rectify this state of affairs.” Id. at 282,
Yet the SI concurrence would restrict access in one inexplicable respect. The concurrence concedes that in cases brought by the United States there is no sovereign-immunity concern with intervention on the side of the government. See SI concurrence at 1224. Why would Congress wish to forbid such intervention only when it is a private party, rather than the government, that initiates the litigation, even though the subject matter of the litigation (namely, who holds title) would be identical? We simply find it difficult to presume that the Quiet Title Act introduced a bar to intervention in support of the United States when such intervention would be possible if the United States had sued to quiet the same title.
In support of its strained construction of the Quiet Title Act, the SI concurrence invokes a perceived tradition of denying intervention to those without a claim to the property in litigation “between the United States and private parties over the ownership of property,” relegating such persons to amicus status. SI concurrence at 1216. The sole case law cited to demonstrate that tradition relates to the practice in century-old cases in which the courts never mentioned, much less ruled on, an attempt to intervene. (The SI concurrence also cites our recent decision in High Country Citizens Alliance v. Clarke,
We also reject the SI concurrence’s reb-anee on cases interpreting explicit conditions imposed in statutes waiving sovereign immunity. Cases construing such conditions (such as a statute of limitations that conditions waiver on the suits being brought within a specified time) are inapplicable because the Quiet Title Act contains no provision barring intervention of a party that makes no claim against the United States. Even if an explicit condition in the Act were entitled to strict construction, there is no condition to be strictly construed.
Moreover, to construe strictly some vague “sentiment” emanating from a statute to foreclose the applicability of a rule that generally applies in civil litigation would run counter to Supreme Court doctrine that takes a realistic, rather than a jaundiced, view of conditions on waivers of immunity. In recent years the Supreme Court has indicated that even when a statute waiving sovereign immunity imposes a categorical condition on that waiver (which has not happened in this case — the Quiet Title Act does not contain an explicit prohibition on intervention), the Court is likely to recognize exceptions to that condition that are recognized in private litigation, absent contrary indications in the statute. Irwin,
Of course, a rebuttable presumption can be rebutted, as it was in the unanimous
The rationale of Irwin and Scarborough would seem to apply in general to procedural rules governing litigation. Application of those rules in litigation against the government “amounts to little, if any, broadening of the congressional waiver [of sovereign immunity]” and “is likely to be a realistic assessment of legislative intent as well as a practically useful principle of interpretation.” Irwin,
In our view, once a federal district court has jurisdiction of a case under the Quiet Title Act, the usual rules of procedure, which include Fed.R.Civ.P. 24, ordinarily apply. Indeed, as we noted earlier in this discussion of conditions on waiver, there is a significantly stronger case for applying the usual rules in this case than
The SI concurrence, and we, have found only one Supreme Court opinion that imposes a condition on a waiver of sovereign immunity that is not explicitly stated in a statute. That opinion, however, relies' on a long and clear tradition and indicia in the. statute itself, and the condition is not contrary to the Rules of Civil Procedure. Lehman v. Nakshian,
In sum, the Rules Enabling Act and the Federal Rules of Civil Procedure require applying Fed.R.Civ.P. 24 in this case unless doing so would expand the jurisdiction of the district court. The only possible expansion would be if intervention infringed on the government’s sovereign immunity. But intervention of a party who seeks no damages or other coercive sanction against the United States does not infringe on its sovereign immunity. Nor does the Quiet Title Act impose any restriction on intervention as a condition to the Act’s waiver of sovereign immunity. The statutory language cannot be read as imposing such a condition, and such a condition would have the anomalous consequence of making the possibility of intervention depend on whether the government or the private claimant first arrived at the courthouse to seek resolution of their dispute. Accordingly, we conclude that sovereign immunity does not impose a jurisdictional bar to SUWA’s intervention.
IV. RULE 24(a) INTERVENTION AS OF RIGHT
Federal Rule of Civil Procedure 24(a) states:
*1188 Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
We are concerned only with clause (2). A discussion of some of the history of the clause may be instructive.
Clause (2) was promulgated in 1966 to replace former clauses (2) and (3), which stated that the applicant must be permitted to intervene
(2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.
[Ajppellants ... face this dilemma: the judgment in a class action will bind only those members of the class whose interests have been adequately represented by existing parties to the litigation; yet intervention as of right presupposes that an intervenor’s interests are or may not be so represented. Thus appellants’ argument as to a divergence of interests between themselves and ASCAP proves too much, for to the extent that it is valid appellants should not be considered as members of the same class as the present defendants, and therefore are not “bound.” On the other hand, if appellants are bound by ASCAP’s representation of the class, it can only be because that representation has been adequate, precluding any right to intervene.
Id. (citation omitted). The Advisory Committee observed that “[tjhis reasoning might be linguistically justified ... but it could lead to poor results.” Fed.R.Civ.P. 24 advisory committee notes (1966 Amendment).
The 1966 changes to Rule 24(a) were intended to refocus the rule on the practical effect of litigation on a prospective jntervenor rather than legal technicalities, and thereby expand the circumstances in which intervention as of right would be appropriate. In forwarding the proposed amendment for approval by the Standing Committee on Practice and Procedure of the Judicial Conference of the United
Moreover, the Rule’s reference to practical consideration in determining whether an applicant can intervene implies that those same considerations can justify limitations on the scope of intervention. If the applicant is granted intervention because of an interest that may be injured by the litigation, it does not follow that the intervention must extend to matters not affecting that interest; and just because no party will adequately represent one particular interest of the applicant does not mean that the applicant must be allowed to participate in the litigation of other matters concerning which its interests are adequately represented. Thus, the Advisory Committee Notes state, “An intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the 'requirements of efficient conduct of the proceedings.” Id; see Trbovich,
It should go without saying that the 1966 amendments to Rule 24 changed the law. Pre-1966 decisions are no longer binding precedent. Sam Fox,
A. Impaired Interest
We begin by addressing what we will call the impaired-interest requirement for intervention as of right — namely, that “the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest.” Fed.R.Civ.P. 24(a). We will later turn to the condition that “the applicant’s interest [not be] adequately represented by existing parties.” Id.
The Supreme Court has directly addressed the impaired-interest requirement on only two occasions. Neither opinion is much help. One contains merely a bare holding, with essentially no explanation. The other explains its holding but it is unclear how much it relies on Rule 24.
The first Supreme Court decision on present Rule 24(a)(2) was handed down shortly after the amendment was promulgated. Cascade Natural Gas Corp. v. El Paso Natural Gas Co.,
The applications of the first two — the State of California and Southern California Edison, an industrial user of gas who purchased from El Paso sources — were reviewed under the pre-1966 version of Rule 24(a)(3). See id. at 135,
The third applicant for intervention was Cascade Natural Gas, a retail distributor of gas in Oregon and Washington whose sole supplier, which had been Pacific Northwest, would be the new company created by the divestiture plan. See id. at 133,
In contrast, the Supreme Court’s second decision considering Rule 24(a)(2), Donaldson v. United States,
The Donaldson opinion then rejected the taxpayer’s argument that he was entitled to intervene under language in Reisman v. Caplin,
Accordingly, it is appropriate to keep in mind the special context of Donaldson when one reads the language most commonly cited from that opinion in Rule 24(a) cases. That language appeared in the Court’s discussion of the specific circumstances of the taxpayer in that case. The
[t]his interest cannot be the kind contemplated by Rule 24(a)(2) when it speaks in general terms of “an interest relating to the property or transaction which is the subject of the action.” What is obviously meant there is a significantly protectable interest. And the taxpayer, to the extent that he has such a protectable interest, as, for example, by way of privilege, or to the extent he may claim abuse of process, may always assert that interest or that claim in due course at its proper place in any subsequent trial.
We therefore hold that the taxpayer’s interest is not enough and is not of sufficient magnitude for us to conclude that he is to be allowed to intervene.
Id. (citation omitted). The next sentence of the opinion, however, again suggests that the Court’s analysis is limited to agency-summons-enforcement proceedings: “Were we to hold otherwise, as [the taxpayer] would have us do, we would unwar-rantedly cast doubt upon and stultify the Service’s every investigatory move.” Id.
Given the ambiguities of Cascade and Donaldson, it is not surprising that the circuit courts of appeals have struggled to reach a definitive interpretation of Rule 24(a)(2). See 7C Wright et al., supra, § 1908, at 270 (“[A]ny attempt to extrapolate from Cascade or from Donaldson, and to deduce from those cases rules applicable to ordinary private litigation, is fraught with great risks.”). In particular, the notion of “interest” has proved murky. See 6 James Wm. Moore et al., Moore’s Federal Practice § 24.03[2][a], at 24-30 (3d ed. 2006) (“Courts have adopted a variety of approaches and a wide range of terminology in discussing the issue of interest.”). As one treatise has put it,
There is not as yet any clear definition, either from the Supreme Court or from the lower courts, of the nature of the “interest relating to the property or transaction which is the subject of the action” that is required for intervention of right. Indeed, it may well be, as some courts have suggested, that this is a question not worth answering.
7C Wright et al., supra, § 1908, at 263 (quoting Fed.R.Civ.P. 24(a)).
One formulation that has achieved considerable currency, and which the concurring opinions would follow, is that the interest must be “ ‘direct, substantial, and legally protectable.’ ” Utah Ass’n of Counties v. Clinton,
The term legally protectable interest is perhaps even more malleable. It appears, albeit in slightly different form, in jurisprudence concerning the requirements of Article III standing. The Supreme Court has stated that a plaintiff has such standing only if it has suffered “an invasion of a legally protected interest.” Lujan v. Defenders of Wildlife,
Furthermore, the DSL test misses the point. The central concern in deciding whether intervention is proper is the practical effect of the litigation on the applicant for intervention. Sometimes the DSL test captures that concern. Certainly when no one could dispute that the applicant’s interest is direct, substantial, and legally protectable, intervention is highly likely to be proper (subject, of course, to Rule 24(a)’s other requirements). But the test is not particularly helpful otherwise. And, as we shall see, courts that pay lip servicp to the DSL test regularly manage to manipulate (ignore?) the language to reach the result required by practical considerations. In our view, a court’s analysis is best served by avoiding formulations that only encourage manipulation or wooden logic.
It is worth exploring the provenance of the DSL test. We might feel ourselves obligated to try to apply it if the origin were of sufficient authority. As it turns out, however, the test has a questionable pedigree. It does not come from the Rule itself or a Supreme Court decision interpreting Rule 24(a); recall that Donaldson spoke only of a “significantly protectable interest,”
Moreover, the result reached by the first holding under the DSL test is questionable. The district court determined that neither the parents nor the former superintendent had shown a sufficient interest to support intervention, id. at 25-29, although it nevertheless granted intervention “in order to give the Court of Appeals an opportunity to pass on the intervention questions raised here, and the questions to be raised by the appeal on the merits if it finds the intervention was properly allowed,” id. at 33. We note that later appellate courts have regularly differed from the district court in Hobson and acknowledged that parents have the interest required by Rule 24(a) to intervene as of right in opposing discrimination suits against school districts. See Morgan v. McDonough,
Most striking about the pedigree of the district court’s test in Hobson is that it was rejected on appeal. See Smuck,
This is not to say that it is error for a court addressing an application for intervention to consider whether the prospective intervenor’s interest is direct, substantial, and legally protectable. As we previously stated, an interest that clearly satisfies all these conditions would likely justify intervention. See 7C Wright, et al., supra, § 1908, at 272 (requirement that an interest be direct, substantial, and legally protectable is best considered a test “of inclusion rather than exclusion. If there is a direct substantial legally protectable in
As we understand Rule 24(a)(2), the factors mentioned in the Rule are intended to capture the circumstances in which the practical effect on the prospective interve-nor justifies its participation in the litigation. Those factors are not rigid, technical requirements. It is worth recalling that in Donaldson, after rejecting the taxpayer’s contention that he had “an absolute right to intervene in any internal revenue summons proceeding,” the Supreme Court remarked, “The usual process of balancing opposing equities is called for.” Donaldson,
The leading treatises on the subject appear to share a similar reading of Rule 24(a)(2). One states:
The inquiry required under Rule 24(a)(2) is a flexible one, and a practical analysis of the facts and circumstances of each case is appropriate. Although each of the three criteria is independent, practical application of Rule 24(a)(2) involves a balancing and blending of the independent components. The three criteria are not analyzed in a vacuum and, instead, are often applied as a group.
The criteria should be considered together rather than discretely. Intervention should be granted of right if the interests favoring intervention outweigh those opposed. For example, a lesser showing of impairment may be required by the court if the applicant’s interest is very strong. Likewise, intervention of right may be granted if the applicant’s claimed interest may be significantly impaired by the action, even if some uncertainty exists regarding the sufficiency of that interest. .The inquiry under Rule 24(a)(2) • must focus on the particular facts and procedural posture of each application.
“In determining whether ... circumstances [justifying intervention] are present, the first requirement of Rule 24(a)(2), that of an ‘interest’ in the transaction, may be a less useful point of departure than the second and third requirements, that the applicant may be impeded in protecting his interest by the action and that his interest is not adequately represented by others.
This does not imply that the need for an ‘interest’ in the controversy should or can be read out of the rule. But the requirement should be viewed as a prerequisite rather than relied upon as a determinative criterion for intervention. If barriers are needed to limit extension of the right to intervene, the criteria of practical harm to the applicant and the adequacy of representation by others are better suited to the task. If those requirements are met, the nature of his ‘interest’ may play a role in determining the sort of intervention which should be allowed — whether, for example, he should be permitted to contest all issues, and whether he should enjoy all the prerogatives of a party litigant.”
7C Wright et al., supra, § 1908, at 285 (quoting Smuck,
In light of the pragmatic concerns that gave birth to the 1966 amendment to Rule 24(a), it would be a step backwards to read the Rule’s present language in an overly technical manner. After all, it was the Supreme Court’s pre-1966 decision reading the word bound in the rule in its technical res judicata sense that convinced the rulemakers of the need for new language and new commentary. See Fed. R.Civ.P. 24 advisory committee notes (1966 Amendment) (discussing Sam Fox,
It is worth noting that even those circuits that pay lip service to the DSL test often recognize, explicitly or implicitly, that it must yield to pragmatic concerns. To give a few examples: The Ninth Circuit opinion cited in Judge Kelly’s concurrence (the Rule 24 concurrence) as showing that circuit’s adoption of the DSL test states: “The ‘interest’ test is not a clear-cut or bright-line rule, because no specific legal or equitable interest need be established. Instead, the ‘interest’ test directs courts to make a practical, threshold inquiry, and is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” So. Cal. Edison Co. v. Lynch,
In another circuit that the Rule 24 concurrence identifies as having adopted the DSL test, the Seventh, at least two opinions have granted intervention as of right without identifying how the qualifying interest was legally protectable. In Illinois v. Sarbaugh,
[The insurer] opposed [the church’s] petition to intervene because it wanted a quick, unopposed adjudication that it had no obligation to defend or indemnify [the architect]. And [the insurer], it seems, was on the verge of obtaining that result. It wanted to play the Washington Generals and get out of town with a quick win. The district court wisely allowed a more worthy opponent to get into and onto the court.
Id. As a practical matter, intervention of the church was clearly proper. The DSL test would hamper, rather than facilitate, the analysis. Why go through the contortions of trying to explain how the church’s interest in whether the architect had insurance coverage was direct (after all, insurance coverage would be irrelevant if the church lost its suit against the architect) or legally protectable?
Similarly, the Eighth Circuit opinion cited in the Rule 24 concurrence as adopting the DSL test also noted that two controlling circuit precedents had held that “an interest in protecting property values was a protectable interest ... [and] an interest in maintaining market values in the proposed intervenors’ homes was sufficient to support intervention.” United States v. Union Elec. Co.,
In Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action,558 F.2d 861 (8th Cir.1977), for example, a group of homeowners was allowed to intervene in an action involving the constitutionality of a municipal ordinance which placed a temporary moratorium on the operation of abortion clinics. The potential loss in the market value of the intervenors’ homes constituted a sufficient “interest” under Rule 24(a)(2) even though three events would have had to take place before the homeowners experienced any actual loss: (1) the city had*1198 to lose the court fight on the constitutionality of the ordinance, (2) the abortion clinic had to open, and (3) the clinic’s operation had to lead to a reduction in the homeowners’ property values.
SEC v. Flight Transp. Corp.,
The Fifth Circuit case cited by the Rule 24 concurrence also illustrates the difficulty posed by trying to apply the DSL test. That court’s recitation of the DSL test was followed by the statement, “Despite these requirements, we have observed that the interest test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” Ross v. Marshall,
As for our own circuit, we need point only to Natural Resources Defense Council,
Finally, we note a decision of the District of Columbia Circuit. Although that circuit has not adopted the DSL test, the circumstances addressed in Nuesse v. Camp,
We now turn to SUWA’s application to intervene. No party has suggested that our review is other than de novo, so we apply that standard of review. See City of Stilwell, Okla. v. Ozarks Rural Elec. Coop. Corp.,
We think it indisputable that SUWA’s environmental concern is a legally protect-able interest. After all, it was this concern that gave it standing to bring its litigation against the NPS regarding Salt Creek Road. See Lujan,
Moreover, SUWA’s interest is “relat[ed] to the property or transaction which is the subject of the [quiet-title] action” and “the disposition of the action may as a practical matter impair or impede [SUWA’s] ability to protect that interest.” Fed.R.Civ.P. 24(a)(2). As we have already noted, the litigation here proceeds directly from SUWA’s earlier advocacy of its interest. Following our remand in Southern Utah Wilderness Alliance v. Dabney,
Of course, if the R.S. 2477 claim is rejected, the litigation will not injure SUWA’s interests. But, unlike the Rule 24 concurrence, see Op. (Kelly, J., concurring) at 1208, we think that this possibility is irrelevant. Otherwise, every application to intervene on the side of one of the parties would be rejected on the ground that the aligned party might win (and the applicant’s interest would hence not be injured). The purpose of intervention is to increase the likelihood of that victory.
We also disagree with that concurrence’s apparent view, see id., that SUWA is not entitled to intervene because its interests may not be injured even if the County and the State prevail. The issue is the practical effect of a judgment in favor of the County and the State, not the legally compelled effect. It is enough that the County and the State will pursue opening to vehicular traffic any right-of-way that they obtain. Courts regularly grant applications for intervention on the ground that the result of the litigation could affect which decisionmaker would resolve a matter concerning the applicant, even though it is far from certain that the applicant’s preferred decisionmaker would act more favorably toward the applicant than the alternative decisionmaker. For example, in Natural Resources Defense Council,
We recognize that SUWA does not claim that it has title to Salt Creek Road, even though this is a quiet-title suit. But Rule 24(a)(2) does not speak of “an interest in the property”; rather, it requires only that the applicant for intervention “claim[] an interest relating to the property or transaction which is the subject of the action.” Fed.R.Civ.P. 24(a)(2) (emphasis added). The SI concurrence appears to suggest that Rule 24 would not warrant SUWA’s intervention because SUWA could not qualify as a party bringing a quiet-title claim regarding the road. See SI concurrence at 1210-11. An intervenor, however, need not so qualify. Indeed, as the Seventh Circuit has observed, “[T]he strong
Thus, we conclude that SUWA’s interest in the environmental impact of Salt Creek Road vehicular traffic satisfies the conditions of Rule 24(a)(2) that it claim “an interest relating to the property or transaction which is the subject of the action and [SUWA] is so situated that the disposition of the action may as a practical matter impair or impede [its] ability to protect that interest.” This conclusion is strengthened by our practice of considering the public interests at stake when weighing the equities. Our previous decisions under Rule 24(a)(2) have distinguished between cases that implicate solely private rights and cases that raise an issue of public interest. See 6 Moore et al., supra, § 24.03[2][c], at 24-35 (“The Tenth Circuit ... follows a very broad interpretation of the interest requirement with respect to public law issues .... ” (citing Clinton,
We are not persuaded by the Federal Defendants’ effort to minimize SUWA’s interest by pointing to the federal government’s continuing powers concerning the road. They claim that SUWA’s interest in the use of Salt Creek Canyon is “foreign” to this case because “even if title is quieted to San Juan County, the United States still has authority to manage the use of the right-of-way.” Aplee. (Fed.Defs.) Supp. Br. at 20. In support of this assertion, they cite our decision in Southern Utah Wilderness Alliance v. Bureau of Land Mgmt.,
when the holder of an R.S. 2477 right of way across federal land proposes to undertake any improvements in the road along its right of way, beyond mere maintenance, it must advise the federal land management agency of that work in advance, affording the agency a fair opportunity to carry out its own duties to determine whether the proposed improvement is reasonable and necessary in light of the traditional uses of the rights of way as of October 21, 1976, to study potential effects, and if appropriate, to formulate alternatives that serve to protect the lands.
Id. at 748. But our discussion in that case related only to federal authority concerning improvements beyond maintenance of a previously established right-of-way. See id. The retention of some federal control over an R.S. 2477 right-of-way hardly eliminates the impact on SUWA’s interest if the County prevails. The Federal Defendants are not contending, and could not contend, that the volume of traffic on Salt Creek Road will be unaffected by the quiet-title action. That is the whole point
The Federal Defendants further suggest that SUWA lacks the requisite interest because even if the County and the State prevail on their R.S. 2477 claims, the United States through the power of eminent domain can “retain the right-of-way by paying just compensation.” Aplee. (Fed.Defs.) Supp. Br. at 21; see 28 U.S.C. § 2409a(b). This argument strikes us as bizarre. Most litigation results could be “reversed” by paying enough. Such a possibility would bar almost all interventions if the Federal Defendants’ argument is correct. The argument would make sense only if the United States had bound itself to retain the right-of-way should it lose the litigation.
The Appellees also rely on our decision in Ozarks,
The decision in Ozarks seems correct— given the minimal impact the condemnation could have on KAMO’s revenues (9.32% of 8% of its Oklahoma revenue), particular in light of Ozarks’ adequate representation of KAMO’s interest, see id. at 1042-43 — but we do not read it to say that every contingent interest fails to satisfy Rule 24(a)(2). After all, the Supreme Court permitted intervention by Cascade, whose interest in the litigation was that it would get a new supplier for its gas which might not be able to meet its needs. See Cascade,
Before addressing whether SUWA should be denied intervention because its interests are adequately represented by the Federal Defendants, we note that our discussion thus far is consistent with our precedents denying intervention on which the Appellees rely. In Allard v. Frizzell,
Likewise, in Alameda Water & Sanitation District v. Browner,
B. Adequate Representation
We now address whether SUWA’s interest is adequately represented in this litigation by the Federal Defendants. 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.” Fed. R.Civ.P. 24(a)(2).
SUWA claims that “[t]he lack of congruity between [its] focused conservation interests and the government’s broader considerations have been evident throughout SUWA’s decade-long battle to eliminate vehicle use in Salt Creek.” Aplt. Supp. Br. at 21. The Appellees respond that this litigation does not require the government to choose between competing interests; rather, the Federal Defendants’ interest in the case is “simply defending the government’s] title.” Aplee. (Fed.Defs.) Supp. Br. at 26; see Aplee. (County) Supp. Br. at 21.
We are persuaded that the Appel-lees have the better of the argument. SUWA correctly asserts that much precedent states that a prospective intervenor need make only a minimal showing to establish that its interests are not adequately represented by existing parties. But those decisions involve contentions that the government, when it has multiple interests to pursue, will not adequately pursue the par
The leading such case is Trbovich,
We have repeatedly adopted this reasoning. In National Farm Lines v. Interstate Commerce Commission,
We did so again in Clinton,
This precedent does not apply, however, when interests are aligned. We have stated the general presumption that “representation is adequate ‘when the objective of the applicant for intervention is identical to that of one of the parties.’ ” Ozarks,
This presumption should apply when the government is a party pursuing a single objective. In Hooker,
The Seventh Circuit has spoken to the same effect, although perhaps more emphatically. In Solid Waste Agency,
Perhaps closest in point is the First Circuit’s opinion in Maine v. Director, U.S. Fish & Wildlife Service,
Turning to the present case, the issue before us is whether the Federal Defendants will adequately represent SUWA’s interests in the quiet-title action. Although the County’s second cause of action (for declaratory relief) appears to go beyond the issue of title, the district court, when denying intervention, stated that “the pleadings define the case in a very narrow fashion ... the existence or nonexistence of a right-of-way and its length and its breadth,” Aplt.App. at 198; and the Appellees have likewise defined the scope of the case in their defense of the district court’s ruling. We therefore do not address the propriety of intervention with respect to any additional issues that may be raised by the claim for declaratory relief. We hold that on the record before us, SUWA will be adequately represented by the Federal Defendants with respect to the quiet-title claim.
We recognize that SUWA and the NPS have had their differences over the years regarding Salt Creek Road. But when SUWA filed its application to intervene, the Federal Defendants had only a single litigation objective — namely, defending exclusive title to the road — and SUWA could have had no other objective regarding the quiet-title claim. Because SUWA’s objective is identical to the Federal Defendant’s sole objective, we presume adequate representation of SUWA’s interest by the Federal Defendants. This is not like the situation we found in Coalition,
Although the Federal Defendants may not wish to exercise their authority as holder of title in the same way that SUWA would wish, the district court did not treat such exercise of authority as being at issue in this litigation when SUWA’s application
We hold that SUWA did not overcome the presumption that the Federal Defendants would adequately represent its interest. The district court properly denied SUWA’s application to intervene as of right.
We note, however, that this denial does not forever foreclose SUWA from intervention. If developments after the original application for intervention undermine the presumption that the Federal Defendants will adequately represent SUWA’s interest, the matter may be revisited. See Maine,
V. RULE 24(b) PERMISSIVE INTERVENTION
The district court in this case also denied SUWA’s application to intervene permissively under Fed.R.Civ.P. 24(b). The panel opinion did not address permissive intervention because it held that intervention as of right was required. See San Juan County,
In its opening supplemental brief on en banc review, SUWA addresses permissive intervention only in an abbreviated footnote. See Aplt. Supp. Br. at 2 n. 1 (“SUWA also warrants permissive intervention in this case. To permissively intervene, a party need not have a direct personal or pecuniary interest in the subject of the litigation. Accordingly, even if SUWA does not meet the ‘legally protecta-ble interest test, permissive intervention should be granted.’ ” (citation and internal quotation marks omitted)). We question whether this is sufficient to require us to address the issue. See Norris, a Dover Res. Co. v. NLRB,
VI. CONCLUSION
We VACATE the panel decision and AFFIRM the district court’s denial of SUWA’s application to intervene. We GRANT Attorney Eric Biber’s Motion for Withdrawal.
Notes
. On en banc review we have also received amicus briefs from a group of civil-procedure and public-lands law professors (supporting intervention); a group of environmental organizations (supporting intervention); Property Owners for Sensible Roads Policy (supporting intervention); the States of Utah and Wyoming (opposing intervention); the Mountain States Legal Foundation (opposing intervention); and the States of New Mexico, California, and Oklahoma (neither supporting nor opposing intervention). The State of Utah, although participating on appeal only as an amicus, was granted leave to intervene by the district court after this appeal was filed. It asserts a property interest in Salt Creek Road.
. SUWA’s intervention in the quiet-title suit hardly makes the lawsuit a "forumd for consideration of broad-ranging arguments about competing environmental and recreational uses of the land.” SI concurrence at 1215. This appeal concerns only intervention in the title dispute.
. There remains the possibility, of course, that even if no "substantive right" is at stake, the waiver of sovereign immunity may be conditioned on a procedural rule that should be treated as a jurisdictional matter. See
. Similarly, we doubt that § 1367 would override state sovereign immunity, as recognized in Pennhurst State School & Hospital v. Halderman,
Perhaps we should note that Pennhurst did not suggest that merely adding a party, without adding a new claim against the sovereign, infringed upon sovereign immunity. Consider a case in which the plaintiff (1) had a proper claim against a state for which the Eleventh Amendment had been overridden (either by the State’s consent or by Congressional enactment, see, e.g., Nev. Dep't of Human Res. v. Hibbs,
. We have no doubt that § 1367(a) applies to claims under the Quiet Title Act. To be sure, under § 1367(a) a statute may "expressly” exclude joinder. But the term expressly must be narrowly construed. It is not enough that the statute clearly provides for only limited jurisdiction. After all, in Finley the Court thought that the FTCA unambiguously "define[d] jurisdiction in a manner that does not reach defendants other than the United States.”
. This is an additional argument against the sovereign-immunity contention in this case. We are in no way implying that intervention on the side of the plaintiff in this case would be barred by sovereign immunity; that issue is hot before us.
. Available at http://www.uscourts.gov/rules/ Reports/ST09-1965-1. pdf.
. It may be of some interest that the only citations to Gale in the Wright & Miller treatise are as contrary authority to the treatise's view of the proper spelling of intervenor. See,
Concurrence Opinion
concurring in the judgment:
The court holds that SUWA is not entitled to intervene in this lawsuit, and I agree. However, I do not join the court’s discussion of the meaning of “interest” in Fed.R.Civ.P. 24(a), and I respectfully dissent from its conclusion that SUWA has a legally protectable interest in this quiet title action.
Moreover, SUWA’s interest is not related to the property rights at stake. The “property” at issue in this case is the title to Salt Creek Road, not the land on which it sits. The natural reading of “relate” is “to show or establish logical or causal connection between.” Webster’s Ninth New Collegiate Dictionary 994 (1991). There can be no “logical or causal connection between” the interest in land use asserted by SUWA and the dispute over land ownership in this case; a mere change in ownership will have no “practical effect” on the land’s use, just as a change in the land’s use would not affect the ownership of Salt Creek Road.
Although the court concerns itself with the “practical effect” of this lawsuit on SUWA, I am most concerned about the “practical effect” of the court’s interpretation of Rule 24(a) on future intervention cases. Until today, our circuit (along with
Indeed, given the substantial “practical effect” an intervenor may have on litigation, I think it makes good sense to require an intervenor to have a “direct, substantial, and legally-protectable interest” before permitting intervention as of right. Despite the court’s assertions to the contrary, see Ct. Op. at 1173-74, intervenors may well be full participants in lawsuits.
Accordingly, I conclude that SUWA has not asserted “an interest relating to the property ... which is the subject of the action,” and I concur in the court’s judgment that SUWA is not entitled to intervene as of right under Fed.R.Civ.P. 24(a). I also agree with Judge McConnell’s conclusion that intervention in this case is barred by sovereign immunity, and I join his concurrence in full. As a result, it is not necessary in my view to reach the question of adequate representation.
. At 115 years old, this decision may fairly be described as a triple “super-duper precedent.” See 151 Cong. Rec. S10168, S10168 (2005) (statement of Sen. Specter).
. In Utah Association of Counties v. Clinton, we permitted SUWA and other environmental groups that had fought to have federal land designated as the Grand Staircase Escalante National Monument to intervene in a lawsuit challenging that designation because "[t]he interest of the intervenor is not measured by the particular issue before the court but is instead measured by whether the interest the intervenor claims is related to the property that is the subject of the action.”
. See Person v. New York State Bd. of Elections,
. The court suggests that, while other courts have paid "lip service” to the "direct, substantial and legally protectable” standard, they have applied it unevenly. Ct. Op. at 1193. Of course, a few case citations cherry-picked from three decades of jurisprudence hardly casts doubt on the test's vitality, especially given that these same courts have continued to articulate and apply it. Moreover, even if certain courts in certain cases have "granted intervention as of right without identifying how the qualifying interest was legally protectable,” id. at 1197, this does not mean that those courts failed to look for (or find) one. Courts are certainly capable of understanding and applying the test without “parsing the terms legally protectable and direct." Id. at 1198.
. Our “direct, substantial, and legally protect-able” test is also more consonant with the "significant protectable interest” requirement articulated in Donaldson v. United States,
. Indeed, a "leading treatise” cited by the court has written: "It seems very doubtful ... that the court has the right to make significant inroads on the standing of an intervenor of right; in particular, it should not be allowed to limit the intervenor in the assertion of counterclaims or other new claims.” 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. § 1922 (2d ed.1986); see also Cotter v. Mass. Ass’n. of Minority Law Enforcement Officers,
. I do not mean to suggest that SUWA has engaged in delaying tactics in this lawsuit, but
Concurrence Opinion
concurring in the judgment.
I share the majority’s ultimate conclusion that the district court correctly denied SUWA’s motion to intervene, but do not agree with its reasoning.
I. SUWA LACKS THE LEGAL INTEREST NECESSARY TO INTERVENE UNDER RULE 24(A)
The proposed intervenors unquestionably have the interest and expertise to contribute meaningfully to judicial deliberations in this case. The issue, though, is whether they have legal interests relating to the litigation such that they should be admitted as parties, and not merely as amici curiae. The principal difference between party and amicus status is that only parties ordinarily have the right to raise new issues, oppose settlements, appeal, and file petitions for certiorari. While am-ici have the right to make arguments, only parties can avail themselves of judicial power to compel action by other parties, either inside or outside the litigation.
In administrative, constitutional, and other public law litigation, we have become accustomed to wide-ranging interest-group participation and the distinction between amici and parties is somewhat blurred. This tradition of broadly inclusive public law litigation helps explain why this Circuit has taken a “liberal line” toward intervention, Utah Ass’n of Counties v. Clinton,
But this is not ordinary public law litigation. This is a case about title to real property. Whatever may be the rules for intervention in proceedings about how national park land should be administered, it is hard to see how SUWA (or its off-road vehicle user counterparts, who are waiting in the wings to intervene on the same legal theory that supports SUWA’s intervention, see San Juan County’s Pet. for Reh’g En Banc 3) can be considered a party to the question of what real property the United States owns, or whether the United States granted an easement to San Juan County decades ago. SUWA may wish or hope that the United States owns unfettered title to this beautiful stretch of canyon country so that statutory protections will apply, and ATV users may wish or hope that San Juan County obtained a transportation right-of-way to enable them to travel through it, but neither interest group
II. SOVEREIGN IMMUNITY BARS INTERVENTION BY A PARTY OUTSIDE THE TERMS OF THE QUIET TITLE ACT
The real answer to the problem in this case, however, lies outside Rule 24(a), in the Quiet Title Act, 28 U.S.C. § 2409a. Indeed, I worry that in our attempt to avoid cluttering this action with non-parties, we may inadvertently announce rules for 24(a) intervention that are too stringent for other contexts. Rather than apply general principles of intervention to this case as if it were ordinary public law litigation, we should — indeed, must — apply the specific principles applicable to lawsuits in which the title of the United States to real property is at issue. The Quiet Title Act is a limited waiver of sovereign immunity to permit suits against the United States only by parties claiming legal title to property also claimed by the United States. In contrast to Rule 24(a), which allows intervention by “anyone” who claims an interest “relating to” the property (and meets the other qualifications), the Quiet Title Act limits suits to parties who claim a right, title, or interest “in the real property,” 28 U.S.C. § 2409a(d). The narrower terms of the immunity waiver must take precedence over the broader terms of the Rule. I thus conclude that SUWA’s motion to intervene should have been denied on the ground that the district court lacks jurisdiction to expand the scope of a Quiet Title Act case to include parties other than those authorized by the Act.
A. Our Jurisdiction To Consider the Issue
The United States contends that its sovereign immunity prohibits SUWA’s intervention in this case. Federal Appellees’ Supp. Reply Br. on Rehearing En Banc 7-10. “When the United States consents to be sued, the terms of its waiver of sovereign immunity define the extent of the court’s jurisdiction.” United States v. Mottaz,
B. Merits of the Issue
The Supreme Court has long recognized that the United States enjoys immunity from suit unless Congress explicitly and unequivocally waives that immunity by statute. Lane v. Pena,
This does not mean that rules of procedure never apply in suits against the government unless they were expressly incorporated in the waiver statute. The Supreme Court has distinguished between what it calls “auxiliary” rules, which are ordinarily governed by the standard rules of procedure, and “substantive” or “jurisdictional” rules, which implicate sovereign immunity. In Henderson v. United States,
On the other hand, as if to foreclose the very argument made by the majority in this case, the Court held that other matters, even though addressed by the Rules of Civil Procedure, lie at the “substantive” core of sovereign immunity and must be governed by the terms of the statutory waiver rather than by generally applicable provisions of the Rules of Civil Procedure. Id. at 671,
In support of its conclusion that “who may- sue” forms part of the substantive core of sovereign immunity, the Henderson Court cited United States v. Sherwood,
The Second Circuit held that the Tucker Act gave the court jurisdiction to adjudicate Sherwood’s claim against the United States and the Federal Rules of Civil Procedure authorized the court to include Kaiser as co-defendant. Id. at 589,
presuppose[d] that the United States, either by the rules of practice or by the Tucker Act or both, has given its consent to be sued in litigations in which issues between the plaintiff and third persons are to be adjudicated. But we think that nothing in the new rules of civil practice so far as they may be applicable in suits brought in district courts under the Tucker Act authorizes the maintenance of any suit against the*1214 United States to which it has not otherwise consented.
An authority conferred upon a court to make rules of procedure for the exercise of its jurisdiction is not an authority to enlarge that jurisdiction and the Act ... authorizing this Court to prescribe rules of procedure in civil actions gave it no authority to modify, abridge or enlarge the substantive rights of litigants or to enlarge or diminish the jurisdiction of federal courts.
Id. at 589-90,
The majority cannot cite any case in which the Supreme Court or this Court has interpreted a waiver of sovereign immunity to permit the addition of parties other than those identified in the waiver statute.
The Quiet Title Act allows the United States to “be named as a party defendant in a civil action ... to adjudicate a disputed title to real property in which the United States claims an interest.” 28 U.S.C. § 2409a(a). The Act requires that a plaintiffs “complaint ... set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States.” Id. § 2409a(d). If the final determination is adverse to the United States, the government may elect either to cede possession and control of the disputed property or to pay just compensation. Id. § 2409a(b). The Act also contains a specific statute of limitations. Id. § 2409a(g). The Quiet Title Act thus specifies who may sue, what claims may be made, what relief may be afforded, and what limitations period applies. These are precisely the matters the Supreme Court deems “substantive” and not “auxiliary.” Henderson,
The Quiet Title Act is carefully limited to the adjudication of disputes among parties with competing claims to title to resolve the question of ownership. This Court has said time and again that other “interests” in government property do not suffice. See Sw. Four Wheel Drive Ass’n v. Bureau of Land Mgmt.,
Allowing parties like SUWA or ATV-user groups — that is, parties without a claim to title — -to intervene in a Quiet Title Act suit would introduce into the litigation parties not contemplated by the Act, thereby forcing the United States to engage in litigation it has not consented to. There is no reason to think Congress intended Quiet Title Act cases to become forums for consideration of broad-ranging arguments about competing environmental and recreational uses of the land, offered by public-interest groups that are strangers to the
The limited scope of the Quiet Title Act is consistent with longstanding congressional policy, expressed in a wide variety of statutes addressing disputes between the United States and private parties over the ownership of property. In every such statutory context of which I am aware, Congress has limited litigation to parties who have a claim to the property in question, relegating to the status of amici curiae those parties who — like SUWA- — oppose the interests of other private claimants but do not themselves claim the property.
In High Country Citizens Alliance v. Clarke,
In these analogous contexts, entities similar to SUWA — that is,-entities without any ownership claim — sometimes were accorded the right to file protests against the claims of other private parties at the administrative level, but in court they were given only the standing of amicus curiae. High Country,
The majority disparages these cases as “century-old”-a strange complaint given High Country’s recent vintage and the importance of traditional limitations as a guide to interpreting sovereign immunity waivers. It cites two cases to suggest that intervention by parties without an interest in title is commonplace, at least “in this part of the country.” Maj. Op. 1185. Upon closer examination, those cases do little to undermine the traditional limita
The majority first cites Watt v. Western Nuclear, Inc.,
In the trial court, the Wyoming Stock Growers Association, John Orr, and the Associated General Contractors of Wyoming were permitted to intervene as parties plaintiff. The basis for such intervention was that they too had an interest in lands patented under the Stock-Raising Homestead Act of 1916 and subject to the same mineral reservation as Western Nuclear.
W. Nuclear v. Andrus,
In the second case relied on by the majority, Pathfinder Mines Corp. v. Hodel,
I therefore conclude that the question of “who can sue” and who can join a preexisting lawsuit of this sort is answered by the Quiet Title Act itself. Whether “strictly construed” in favor of the sovereign (as it must be) or interpreted in light of traditional limitations on litigation over federal land claims, the Act does not contemplate the participation of parties, like SUWA, who have no claim to the disputed land. Rule 24(a) allows intervention by “anyone” who claims an interest “relating to” the property, while the Quiet Title Act limits suits to parties who claim a “right, title, of interest ... in the real property,” 28 U.S.C. § 2409a(d). Even assuming SUWA’s interests are sufficient to qualify under the Rule, they fall short under the statute. And it is the statute, not the Rule, that determines the scope of Con
III. THE MAJORITY’S SOVEREIGN IMMUNITY ARGUMENTS ARE UNPERSUASIVE
The majority offers three lines of argument in support of its claim that sovereign immunity would not bar intervention by a party that does not meet the criteria set forth in the Quiet Title Act: (1) that permitting intervention would not expose the government to litigation burdens beyond those necessarily contemplated by the Quiet Title Act, Maj. Op. 1173-74; (2) that the identity of intervening parties is a mere “condition” on the waiver of sovereign immunity, which must be affirmatively reserved by Congress, id. at 1175; and (3) that sovereign immunity does not bar the addition of parties nominally aligned as codefendants with the government, even if their interests and legal positions diverge, id. at 1182-83. The majority does not explain how these seemingly inconsistent arguments fit together. In any event, none of them comports with Supreme Court precedent. Perhaps the Supreme Court some day will adopt one of these positions, and I make no claim that fundamental principles of constitutional structure would be offended if it did so. As of now, however, the Supreme Court has not constricted sovereign immunity in the fashion envisioned by the majority.
A. SUWA’s Intervention Would Affect the Government’s Substantive Rights
The majority responds first by stressing the “limited nature of what is at stake.” Maj. Op. 1173. According to the majority, the government is wrong to invoke the protections of sovereign immunity in this case because the intervention of SUWA “would not expose the United States to any burden not inherent in the litigation to which it has consented in the Quiet Title Act.” Id. at 1174. I cannot agree.
This Court has held that “[i]f a party has the right to intervene under Rule 24(a)(2), the intervenor becomes no less a party than others.” Coalition of Arizona/New Mexico Counties for Stable Econ. Growth v. Dep’t of Interior,
New issues. The majority does not deny the right of a party to raise new issues, but dismisses this prerogative as inconsequential on the ground that “the court trying the case (even in the absence of any intervenor) can require the government to address a legal theory not raised by the original parties.” Maj. Op. 1174 (citing Dickerson v. United States,
There must be hundreds of cases in this Circuit holding that the court has no obligation to, and ordinarily should not, address issues not raised by the parties. See, e.g., Tyler v. City of Manhattan,
Appeal and certiorari. The majority states that “there is no need to resolve at this stage of this case whether SUWA could appeal or seek certiorari when the government does not wish to.” Maj. Op. 1173. That can be so only if these litigation possibilities do not matter. But surely they do. It is not uncommon for the government to decline to appeal or petition for certiorari when it loses a case, sometimes because, in the Solicitor General’s professional judgment, the particular case is an unpropitious vehicle for vindicating the government’s views. Yet it is also not uncommon for intervenor-defen-dants to disagree with the Solicitor General’s judgment. See, e.g., Pet. for Writ of Cert. at 10, Mitchell v. Helms,
It thus appears that the majority’s reservation of this issue is merely a convenient way of disguising or ignoring the full implications of allowing SUWA into this suit. Once SUWA is granted party status at the trial level — in other words, once we hold that the Quiet Title Act permits such participation — it would make little sense to hold that the Act precludes such a party’s participation at the appellate level. Nothing in the Act supports such a bifurcation. At either level, SUWA’s arguments will be the same, will be contrary to the government’s position, and will offend sovereign immunity. The majority responds that such a reading of the Quiet Title Act “make[s] perfect sense” because the doctrine of standing might block an intervenor from pursuing an appeal. Maj. Op. 1173. But standing is a jurisdictional question
Settlement. The possibility that an inter-venor might oppose a settlement negotiated by the claimants to title is particularly significant. The majority dismisses the importance of this prerogative on the ground that intervenors cannot “block a settlement.” Maj. Op. 1173. To be sure, the Supreme Court has held that interve-nors do not have the power of absolute veto over settlements. See Local No. 93 v. City of Cleveland,
Identity of legal positions. The majority’s only remaining argument must be that SUWA’s intervention would not impose improper litigation burdens on the United States because its interests and legal positions coincide with those of the government. See Maj. Op. 1182-83, 1203-07. If there is no divergence of interests, the intervenor would raise no new issues, would not appeal or seek certiorari unless the government did also, and would not oppose any settlement in which the government joined. But this raises the interesting question: Does the majority’s sovereign immunity analysis apply only when the intervenor’s interests are adequately represented by the government, and thus only when the intervention fails the test of Rule 24(a)? Is the majority defending a null set?
This argument raises an even more puzzling question for the three dissenting judges who join this part of the majority’s opinion and are necessary to its majority status. Unlike the majority, the dissenters argue that “SUWA’s objectives are not identical to those of the United States,” Ebel, J., dissenting, at 1227, and “the potential and even likelihood of a conflict between the positions of the United States and SUWA cannot be avoided,” id. at 1229. If this is correct, then SUWA’s participation as a party will indeed “expose the United States to [ ] burden[s] not inherent in the litigation to which it has consented.” Maj. Op. 1174. Either the dissenters are wrong to join the majority on this point, or the majority’s assurances regarding the “limited nature of what is at stake” are hollow. Maj. Op. 1173. Suppose the dissenters are right about SUWA’s interests and likely legal positions. Would the majority then agree that sovereign immunity is violated?
B. The Majority’s Affirmative Theory of Sovereign Immunity Is Inconsistent with Supreme Court Precedent
Let us turn now to the majority’s affirmative theory. According to the majority,
This conception of sovereign immunity is the majority’s own construct. No opinion of the Supreme Court has ever suggested that what the majority views as the waiver of the essential core of sovereign immunity — susceptibility to coercive sanctions— must be express, but that the government is otherwise subject to all generally applicable burdens of litigation unless Congress explicitly reserves its immunity. On the contrary, the Court has unequivocally stated that the identity of parties to litigation against the government — “who can sue” and what parties may join existing lawsuits — is substantive and jurisdictional, and is governed by the “strict construction” rule of the sovereign immunity precedents. Henderson,
The majority extracts its theory from two Supreme Court decisions interpreting statutes of limitations in immunity waiver statutes. See Maj. Op. 1185-86 (citing Irwin v. Dept. of Veterans Affairs,
According to the Court’s opinion in Irwin, the decision reflected nothing more than a “realistic assessment of legislative intent” — namely, that when Congress set a statute of limitations it most likely understood it to be interpreted the same way most statutes of limitations are interpreted. Id. at 95-96,
Even if the majority’s general theory were adopted, however, it does not follow that the identity of parties or issues could be classified as a “nonessential” aspect of sovereign immunity — a mere “condition” on the waiver. The question of who can litigate and what claims can be brought is the core of subject matter jurisdiction, and is specified (in terms general or specific) in every statute waiving sovereign immunity.
C. There Is No Exception to Sovereign Immunity In Cases Where a Party Seeks to Intervene As Co-Defendant
Finally, the majority endorses Judge Ebel’s argument that sovereign immunity does not preclude intervention by parties who “seek[ ] only to intervene on the United States’ behalf.” Ebel, J., dissenting, at 1208 n. 2; see Maj. Op. 1183 (“[I]t makes no sense to say that sovereign immunity is infringed by participation on the side of the sovereign’s claim or defense.”).
Even on its own terms, the argument that sovereign immunity necessarily allows intervention by entities that seek only to intervene on the United States’ behalf is unwarranted.
Let us begin with precedent. Neither the majority nor Judge Ebel successfully squares this position with Sherwood, which rejected joinder of a codefendant (and not just a co-plaintiff) under the Tucker Act. See
The majority does cite Trbovich v. United Mine Workers of America,
With no authority in the Supreme Court or this Court to support its position, the majority quotes and adopts the holding of a moth-eaten decision from the Second Circuit, International Mortgage & Investment Corp. v. Von Clemm,
The result in Von Clemm is perverse. Intervention served as an end-run around the clear terms of the waiver of sovereign immunity. Although the United States consented to be sued only when claimants to property filed an action within a particular time, the Von Clemm intervenors, who failed to do so, were permitted to litigate. Moreover, although the Second Circuit justified intervention (as the majority and Judge Ebel do here) on the ground that the intervenors were aligned with the government, in fact their interests greatly diverged. As the court described it: the governmental parties had “shown a conspicuous disinterest in asserting the rights of IMC to the vested property” and there was “no reason ... to suppose that the Department of Justice ... will exhibit ... enthusiasm for pressing appellants’ claims in the court.” Id. at 861. Nonetheless, because IMC’s claims were technically “defenses on behalf of the United States” against the plaintiffs, id. at 868, and the Second Circuit could “see no reason why the defense of the action should be wholly within the control of officers of the government,” id. at 864, the court allowed the IMC stockholders to intervene. The result was that the government was forced to take positions on issues neither it nor the actual parties wished to litigate, and to contemplate results it had a “conspicuous disinterest” in achieving. In the court’s words, it lost “control” over the defense of the lawsuit, all because of the intervention of persons who had neglected to file suit in accordance with the terms of the waiver of sovereign immunity. I dissent from the majority’s embrace of this ruling.
Let us turn now to the logic of the matter. By limiting their argument to intervention by parties on the same side as the United States, Judge Ebel and the majority appear to concede that sovereign immunity would bar intervention by opposing parties, presumably because this would require the United States to expend resources in litigating against parties to whose participation it has not consented. But this distinction erroneously assumes that formal alignment of the intervenor as co-defendant eliminates the danger that it will take positions different from, or adverse to, those taken by the United States. This is the very assumption Judge Ebel challenges in the remainder of his opinion. As he says, “SUWA’s objectives are not identical to those of the United States,” Dissenting Op. 1227, and “the potential and even likelihood of a conflict between the positions of the United States and SUWA cannot be avoided,” id. at 1229.
SUWA seeks to intervene so that it can advance arguments and strategies that the government, for a variety of reasons, opposes or prefers to avoid. After all, SUWA must have a reason to want to
[T]he government must balance the nation’s varying interests when deciding what defenses to raise, what arguments to make, how vigorously to make them, and whether to defend itself at all. In doing so, the federal government may weigh factors that carry little or no weight with individuals, groups, or local and state governments....
Id. at 20-21. In a given suit, the government may opt for a particular litigation strategy that best suits its overall interests — including political and policy objectives, possibly including smoothing relations with state and local governments— but that fails to maximize its chances of winning that particular suit or of setting the most favorable precedent for other R.S. 2477 suits.
As already discussed, the possibility that an intervenor might oppose a settlement negotiated by the claimants to title is particularly significant. For example, in the litigation culminating in S. Utah Wilderness Alliance v. Bureau of Land Mgmt.,
For all these reasons, if SUWA is allowed to intervene in this QTA suit, even as a co-defendant, there is a significant “potential and even likelihood” that it will file motions in opposition to the litigation strategies and legal positions pursued by the government. The government, in turn, would be forced to oppose its formerly friendly intervenor and would thereby be subjected to litigation beyond the scope of the Quiet Title Act — namely, battling a party that has no claim to title in the land at issue. Congress has consented to no such thing.
. As explained below, I conclude that the motion for intervention should be dismissed on jurisdictional grounds. However, because the Court reaches the merits of the motion to intervene, I do so as well. See Initiative & Referendum Inst. v. Walker,
. The provision is now found at Fed.R.Civ.P. 4(m).
. There is no need to respond to the majority’s labored attempts to distinguish Sherwood, because the grounds of distinction do not touch the only point for which I rely on it— that sovereign immunity precludes the joinder of parties outside the scope of the statutory waiver in cases against the United States, even where such joinder would be authorized by the rules of civil procedure in private litigation.
. The best the majority can offer is a complicated, multi-page argument along the following lines: (1) Finley v. United States,
. At one point, the majority suggests that Sherwood is really about the joinder of claims. Maj. Op. 1179. That is not a tenable reading of the decision. The sole issue in Sherwood was joinder of necessary parties,
. That, as the majority notes, the Quiet Title Act permits other parties claiming title to the disputed land to be joined as co-defendants (presumably only if they satisfy the statute of limitation and other prerequisites to bringing a claim specified in the Act), Maj. Op. 1172-73, 1183-84, is no reason to allow intervention by parties without any such claim.
. One distinguished commentator finds the results in Irwin and Scarborough difficult to reconcile with the Court's strict construction of the scope of sovereign immunity waivers in Shaw and other cases. Gregory C. Sisk, Litigation With the Federal Government § 2.03, at 97 (4th ed.2006). Contrary to the majority, he concludes that "the Shaw strict construction approach appears to predominate,” while observing that “unless and until Irwin has been either discarded by the Court as an anomalous opinion or placed by the Court into a separate procedural category,” it will produce what he calls "continuing tension.” Id. This case appears to be an example.
. See, e.g., 5 U.S.C. § 702 ("A person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”); 28 U.S.C. § 1498(a) (authorizing the "owner” of a patent to bring an "action against the United States in the ... Court of Federal Claims” if the invention "described in and covered by” the patent "is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same,” but specifying that “any patentee or any assignee of such patentee” has no right to sue "with respect to any invention discov
. The majority coyly states in a footnote that this is merely "an additional argument against the sovereign-immunity contention,” and that "[w]e are in no way implying that intervention on the side of the plaintiff in this
. The majority finds it "anomalous” that different rules apply to suits brought by the United States as plaintiff, where sovereign immunity does not apply, than to suits brought against the United States. Maj. Op. 1188. Admittedly, this may be anomalous, but if so, it is an anomaly that runs throughout the realm of litigation against the government. There is no reason to think the Quiet Title Act is an exception.
Concurrence Opinion
concurring in part and dissenting in part.
I agree fully with the majority opinion through Section IV.A, that the Southern Utah Wilderness Alliance, Grand Canyon Trust, and The Wilderness Society (collectively “SUWA”) have established “an interest relating to the property” at issue in
The majority opinion agrees that this quiet title action is narrow. And I recognize, and appreciate the majority’s recognition, that SUWA may renew its motion to intervene at a later date if it can demonstrate more clearly a conflict between its interests and the conduct of the United States in this or subsequent litigation. Nevertheless, I still believe that SUWA has made an adequate showing that the United States may not adequately represents its interests.
This court has recognized that in many circumstances a government’s representation of many broad interests precludes it from adequately representing an intervention applicant’s more narrow and discrete interest. See Utahns for Better Transp. v. United States Dep’t of Transp.,
To deny intervention in this case after SUWA has already established an interest that may be impaired in the litigation, this court must conclude that the coalescence of SUWA’s objectives with those of the United States is not just substantial but identical. See Coalition of Az./N.M. Counties for Stable Econ. Growth,
The crux of my disagreement then is that I cannot conclude that SUWA’s objectives are identical to those of the United States. Because I conclude that SUWA, in at least two ways, has met its minimal burden of showing that its objectives are not identical to those of the United States and that the United States will not adequately represent SUWA’s interests, I believe SUWA is entitled, as a matter of
1. SUWA’s objectives are not identical to those of the United States.
The United States, as well as San Juan County, would have us believe that this quiet title action
On the other hand, the United States’ objectives, if a right of way is found to exist, will involve a much broader range of interests, including competing policy, economic, political, legal, and environmental factors. See 16 U.S.C. §§ 1, la-1, 271d. The United States will have to take all these multiple interests into account when it develops its litigation strategy, and it may very well take the position that if a right-of-way easement does exist, it may be broad enough to encompass some vehicular traffic. And, whether the United States takes such a position overtly or not, that issue will unavoidably be affected by the ruling in this quiet title action. Because this quiet title action will affect not only whether Utah or San Juan County have any right-of-way easement along Salt Creek Canyon but also the scope of such an easement, the potential and even likelihood of a conflict between the positions of the United States and SUWA cannot be avoided. If there is an easement, it must be founded on historic usage, and that historic usage will define the scope of the easement. SUWA, accordingly, has a vital interest in ensuring as an intervenor that the record is fully and fairly developed as to the historic public usage of this alleged right-of-way.
This court has previously held that an intervention applicant can “easily” show its interest diverges from that of an existing party to the litigation “when the party upon which the intervenor must rely is the government, whose obligation is to represent not only the interest of the intervenor but the public interest generally, and who may not view that interest as coextensive with the intervenor’s particular interest.” Utah Ass’n of Counties,
[T]he government’s representation of the public interest generally cannot be assumed to be identical to the individual parochial interest of a particular member of the public merely because both entities occupy the same posture in the litigation. 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. Even the government cannot always adequately represent conflicting interests at the same time. This potential conflict exists even when the government is called upon to defend against a claim which the would-be in-tervenor also wishes to contest.
Utah Ass’n of Counties,
Because SUWA’s “interest is similar to, but not identical with, that of one of the parties, a discriminating judgment is required on the circumstances of the particular case, but he ordinarily should be allowed to intervene unless it is clear that the party will provide adequate representation for the absentee.” Natural Res. Def. Council, Inc. v. United States Nuclear Regulatory Comm’n,
Even if SUWA’s objectives are identical to those of the United States in this litigation, SUWA has alternatively established that the United States may not adequately represent its interests based upon the long history of conflict between SUWA and the United States on this precise issue. The United States did not restrict vehicular traffic from Salt Creek Canyon until SUWA sued it. See San Juan County v. United States,
SUWA contends that, after the United States prohibited vehicles in Salt Creek Canyon, the United States still has not been as protective of the Salt Creek environment as it should have been. For example, SUWA points to the fact that the United States has, on occasion, still permitted San Juan County employees to drive motorized vehicles through the canyon despite the federal ban. And in the earlier litigation, it was SUWA — not the United States — that sought to preclude San Juan County employees from doing so. See Majority op. at 1168-69. This further suggests that the United States does not fully share SUWA’s environmental commitment in the canyon. Cf. Coalition of Az./N.M. Counties for Stable Econ. Growth,
Moreover, the fact that the United States has opposed SUWA’s intervention in this action suggests that the United States does not intend fully to represent SUWA’s interests. See Utah Ass’n of Counties,
In addition, according to SUWA, the National Parks Service (“NPS”) has never finalized its investigation of the existence of the right-of-way San Juan County claims in this litigation. A 2002 environmental assessment did analyze San Juan County’s claim, concluding that “an R.S. 2477 right-of-way was not established in Salt Creek Canyon. Existing known evidence does not show by a preponderance of the evidence that the route meets the
NPS’s failure in this regard is of concern because the determination of whether, and to what extent, San Juan County has a right-of-way through Salt Creek Canyon will turn on the historic uses of the canyon. The creation of a record will be critical to that determination. See S. Utah Wilderness Alliance v. Bur. of Land Mgmt.,
In Maine v. Director, United States Fish and Wildlife Service, the First Circuit, even though presuming the government would adequately defend its actions and those of potential intervenors with interests aligned with it, noted that “we might view this ease differently” if the proposed intervenors sought to assert an argument different than that asserted by the government and the intervenors’ argument “depended on introduction of evidence that the [government] would refuse to present.”
That is not the case here. Rather, the disposition of this lawsuit will turn heavily on a record yet to be created during this litigation. As an intervenor, SUWA will be able to affect what evidence that record includes and ensure that the record includes all the evidence necessary to reflect SUWA’s environmental concerns and enable the court to make a fully informed decision.
Judges are not required to disregard reality. Based upon the historical hostility between the United States and SUWA concerning this canyon, one can easily conclude that there is a possibility that the United States will not adequately represent SUWA’s interests relating to this property, interests that may be impaired by this litigation. That is all SUWA must establish.
III. Conclusion
If not allowed to intervene, SUWA will be left with an acknowledged interest in this property, an interest which may be impaired by the disposition of this lawsuit, and yet have no opportunity to have its voice heard in support and protection of its interest and no opportunity to ensure that the record is fully and fairly developed so that the court can make an adequately informed decision regarding the R.S. 2477 claim. Once this quiet title action is decided, either by settlement or judicial decision, it may be too late. Because I conclude that SUWA has. met its minimal burden to show that there is a possibility that the United States may not adequately
. I do not quarrel with the majority’s statement that this presumption may apply when a governmental party possesses objectives that are identical to those of the intervention applicant. See Majority op. at 1205-07 (citing United States v. Hooker Chems. & Plastics Corp.,
. San Juan County brought this quiet title action against the United States under 28 U.S.C. § 2409a. This statute, which “is the exclusive means for challenging the United States’ title to real property,” Southwest Four Wheel Drive Ass’n v. Bur. of Land Mgmt.,
For the first time in its en banc briefs, the United States vaguely suggests that, because § 2409a represents a waiver of the United States' sovereign immunity, it also somehow precludes SUWA’s intervention. Generally, this court will not address an issue raised for the first time on appeal. See Shell Rocky Mountain Prod., LLC v. Ultra Res., Inc.,
. The complaint filed by the intervenor State of Utah, after the district court denied SUWA’s motion to intervene, reiterates that this litigation concerns not only the existence of a right-of-way, but the scope of that right-of-way if it does exist.
. As a practical matter, we can rely to some extent on SUWA’s own assessment of its inter
Concurrence Opinion
concurring in part, dissenting in part.
I concur in the majority opinion through Section IV.A, but I join Judge Ebel’s dissent as to Section IV.B. In my judgment, SUWA is entitled to intervene as of right. I write separately because some of today’s holdings are rather well huddled in the scholarly debate of my respected colleagues, and it seems to me that there is a certain utility to be gained by extracting and synthesizing some of the key holdings. In addition, I write to explain the basis of my vote.
I
Beginning with the issue of sovereign immunity, the majority opinion reaches a narrow and unremarkable holding: Congress has not conditioned its waiver of sovereign immunity under the Quiet Title Act to foreclose the intervention of a party seeking to come into the litigation on the same side as the United States, to advocate for the same outcome, and to add no new claims to the litigation. This conclusion strikes me as fundamentally correct, given the nature of the principle of sovereign immunity and the limited consequences of allowing the Southern Utah Wilderness Alliance, the Grand Canyon Trust, and The Wilderness Society (collectively “SUWA”) to intervene in this case.
As Chief Justice John Marshall recognized over 185 years ago, the basic principle of sovereign immunity is “that no suit can be commenced or prosecuted against the United States,” Cohens v. Virginia,
Moreover, in so far as the sovereignty of the United States is concerned, the practical consequences of allowing SUWA to intervene are extremely limited. As Judge Hartz aptly recognizes, SUWA’s intervention would not expose the United States to any litigation burden not already inherent in the Quiet Title Act’s waiver of immunity; the nature of this suit is fundamentally the same with or without SUWA’s intervention. Appropriately, that should be the end of the jurisdictional matter.
II
Turning to the question of intervention of right, I understand the majority to re
In rejecting the DSL test, I agree that whether a proposed intervenor has asserted an interest meriting Rule 24(a)(2) protection depends on whether the applicant can demonstrate at the threshold that it possesses an interest that may, from a practical perspective, be adversely affected or impaired by the litigation. Although it creates an admittedly relaxed standard, in my judgment, this holding provides courts in our circuit with the flexibility to practically resolve lawsuits by allowing the participation of as many parties as is compatible with the primary concerns of Rule 24(a)(2) — efficiency and due process. See Coalition,
In adopting a revised formulation of the impaired-interest requirement, I do not read the embedded holding of the majority opinion as allowing indiscriminate intervention. Rather, today’s opinion holds that courts considering the issue should pay careful attention to the strength of an applicant’s asserted interest and the degree to which that interest will be impaired if intervention is declined. This approach to the interest inquiry, in my judgment, appropriately allows the law to develop on a case-by-case basis. It also avoids the pitfalls inherent in the rigid DSL test, which otherwise requires an applicant for intervention to surmount linguistic hurdles not mandated by Rule 24(a)(2).
There can be no question that under today’s pronounced Rule 24(a)(2) inquiry, SUWA has cognizable interests that merit our recognition.
As the majority recognizes, SUWA must also show that its Rule 24(a)(2) articulated interests are “relat[ed] to the property ... which is the subject of the action.” It has undoubtedly made such a showing. Although couched in the form of an action to quiet title to Salt Creek Road, this is ultimately a case about how Salt Creek Road will be used. Should San Juan County eventually prevail on the merits, its stated goal is to open Salt Creek Road to vehicular traffic — the very outcome SUWA hopes to foreclose by participating in this case.
In short, SUWA’s asserted interest is subject to sufficient practical threat of impairment, and is sufficiently related to the property in dispute, that the impaired-interest requirement of Rule 24(a)(2) should not bar SUWA’s intervention.
Ill
Because I am unable to conclude that the United States adequately represents SUWA’s interests, I join Judge Ebel’s dissent from Section IV.B of the majority opinion. I reach this conclusion based on two observations. First, SUWA is narrowly concerned with its articulated interests, including the scope of any potential easement. By contrast, the government must, under its mandate, balance an array of competing political, environmental, and economic concerns. Second, by limiting SUWA’s participation to that of an amicus, we constrain its ability to effectively ensure that its interests are adequately advanced. 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. SUWA must then confront all of the further procedural difficulties compounded by the unavoidable delay, as well as the huge burden of persuading the court to “do it all over again.” Judicial economy — and fairness — demand more.
. We are certainly not the first court to hold that a public interest group such as SUWA has a cognizable interest under Rule 24(a)(2) in a litigation despite lacking a "direct” legal interest (i.e., an ownership interest). See, e.g., Mausolf v. Babbitt,