SAN JUAN COUNTY, UTAH, a Utah political subdivision v. UNITED STATES of America; Department of Interior; National Park Service
No. 04-4260
United States Court of Appeals, Tenth Circuit
Oct. 2, 2007
503 F.3d 1163
PLN‘s due process claim suffers the same fate. While we recognize both inmates and publishers have a right to procedural due process when publications are rejected, Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir.2004), Jacklovich involved the prison‘s deliberate rejection of publications pursuant to policy. Here, the prison‘s rejections of PLN‘s magazines was unintentional based on the negligence of its mailroom personnel. Therefore, due process is not implicated. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (“[T]he Due Process Clause [of the Fourteenth Amendment] is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.“).
IV. Conclusion
We construe the district court‘s dismissal of Jones and PLN‘s complaints as a sua sponte grant of summary judgment to the County Defendants and Haun Defendants. In Appeal No. 04-4185, we AFFIRM the grant of summary judgment to the County Defendants concerning the County Jail‘s paperback book policy and its regulations banning inmate access to sexually explicit and technical publications but REVERSE as to the jail‘s catalog ban. We REMAND to the district court to evaluate the jail‘s catalog ban under Turner. In Appeal No. 04-4186, we AFFIRM the grant of summary judgment to the Haun Defendants.
SAN JUAN COUNTY, UTAH, a Utah political subdivision, Plaintiff-Appellee, v. UNITED STATES of America; Department of Interior; National Park Service, Defendants-Appellees, Alaska Wilderness League, California Wilderness Coalition, California Environmental Coalition, Colorado Mountain Club, Greater Yellowstone Coalition, National Parks Conservation Association, National Wildlife Refuge Association, New Mexico Wilderness Alliance, San Juan Citizens Alliance, Sierra Club, Southeast Alaska Conservation Council, Wyoming Outdoor Council; State of Utah;
James S. Angell, Earthjustice, Denver, CO (Edward B. Zukoski, Eric G. Biber, Earthjustice, with him on the briefs for Movants-Appellants, and Heidi J. McIntosh, Stephen H.M. Bloch, Southern Utah Wilderness Alliance, Salt Lake City, with him on the briefs for Appellant Southern Utah Wilderness Alliance).
Aaron P. Avila, Attorney, Environment & Natural Resources Division, United States Department of Justice, Washington, DC, for Defendants-Appellees, and Shawn T. Welch, Pruitt Gushee, P.C., Salt Lake City, UT, for Plaintiff-Appellee (Sue Ellen Wooldridge, Assistant Attorney General, Paul M. Warner, United States Attorney, Carlie Christensen, Assistant United States Attorney, Bruce D. Bernard and John L. Smeltzer, Attorneys, Environment & Natural Resources Division, United States Department of Justice, Washington, DC, and G. Kevin Jones, Attorney/Advisor, Office of the Solicitor, Department of the Interior, Salt Lake City, UT, with Aaron P. Avila on the briefs for Defendants-Appellees, and A. John Davis, Pruitt Gushee, P.C., with Shawn T. Welch on the briefs for Appellee San Juan County, Utah).
Jayme Ritchie and William Perry Pendley, Mountain States Legal Foundation,
Patrick J. Crank, Wyoming Attorney General, Cheyenne, Wyoming, and Mark L. Shurtleff, Utah Attorney General, Salt Lake City, UT (J. Mark Ward, Edward O. Ogilvie, Jaysen R. Oldroyd, Assistant Attorneys General, and Ralph L. Finlayson, Special Assistant Attorney General, Salt Lake City, UT, with him on the brief) filed an amicus curiae brief for Plaintiff-Appellee and Defendants-Appellees.
Sarah Krakoff, Associate Professor, University of Colorado Law School, Boulder, CO, on behalf of Civil Procedure and Public Lands Law Professors; Michael S. Freeman, Faegre & Benson LLP, Denver, CO, on behalf of Property Owners for Sensible Roads Policy; and Louis R. Cohen, James R. Wrathall, Brian M. Boynton, Theodore C. Liazos, Wilmer, Cutler, Pickering, Hale and Dorr LLP, Washington, DC filed an amicus curiae brief for Movants-Appellants.
Patricia A. Madrid, New Mexico Attorney General, Santa Fe, NM, (Stephen R. Farris and Judith Ann Moore, Assistant Attorneys General, with her on the brief), Bill Lockyer, Attorney General of California, W.A. Drew Edmondson, Attorney General of Oklahoma, Oklahoma City, OK, filed an amicus curiae brief on behalf of the States of New Mexico, California, and Oklahoma, in support of neither party and in support of neither affirmance nor reversal.
Before TACHA, Chief Circuit Judge, SEYMOUR, PORFILIO, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O‘BRIEN, McCONNELL, and HOLMES, Circuit Judges.
HARTZ, Circuit Judge, joined by HENRY and MURPHY, Circuit Judges, and joined in all but Part IV(B) by SEYMOUR, EBEL, BRISCOE, and LUCERO, Circuit Judges.
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.1 A divided panel of this court held that SUWA was entitled to intervene as a matter of right. See San Juan County v. United States, 420 F.3d 1197, 1201 (10th Cir.2005). Because the panel granted intervention as of right, it did not address permissive intervention. See id. at 1213-14. We now hold: (1) applicants for intervention need not establish standing, (2) sovereign immunity does not bar SUWA‘s intervention, and (3) despite satisfying the other requirements for intervention under
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 promot[ing] the development of the unreserved public lands and their passage into private productive hands,” S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 740 (10th Cir.2005), by making “a standing offer of a free right of way over the public domain,” id. at 741 (internal quotation marks omitted). See generally Harry R.
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, 848 F.2d at 1078. Because such a right-of-way could have come into existence without any judicial or other governmental declaration, much litigation continues over whether rights-of-way were in fact created on public land.
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 Canyonlands National Park. See S. Utah Wilderness Alliance v. Dabney, 7 F.Supp.2d 1205, 1207 (D.Utah 1998), rev‘d, 222 F.3d 819 (10th Cir.2000). SUWA submitted comments and communicated with NPS personnel with the goal of closing Salt Creek Road to vehicular traffic. The final Backcountry Management Plan, published in January 1995, established a system of gates and permits to limit vehicular traffic, but it stopped short of closing the road. SUWA sued the NPS in federal court, challenging the plan. See id. at 1206, 1209. On June 19, 1998, the district court ruled that the NPS had violated the National Park Service Organic Act by permitting vehicular traffic in Salt Creek Canyon beyond Peekaboo Spring (also referred to as Peekaboo campsite). See id. at 1211. As a result of this decision, the Canyon was closed to vehicular traffic.
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, 222 F.3d 819, 822, 829 (10th Cir.2000). Shortly thereafter, on October 23, 2000, the NPS issued a temporary order closing Salt Creek Canyon above Peekaboo Spring to vehicular traffic while it engaged in formal rulemaking regarding use of the Canyon.
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 issue,
it is unclear why the NPS itself has not asserted cross-claims against the State and County.
Aplt. Add. at 8-9 (Order, Jan. 15, 2003). Despite its displeasure with the NPS and SUWA, the court rejected the motions by the County and the State because the R.S. 2477 issue had not been raised in a proper quiet-title claim. Then, apparently acting sua sponte, the court dismissed the County and the State from the litigation, explaining:
[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
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 intervenors 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
II. STANDING TO INTERVENE
San Juan County first contends that SUWA cannot intervene under either
Although it observed that “circuit courts addressing this issue have reached different results,” San Juan County, 420 F.3d at 1204, the panel opinion in this case concluded that “prospective intervenors need not establish their own standing to sue or defend, in addition to meeting Rule 24‘s requirements, before intervening,” id. at 1203. The panel held that so long as there was Article III standing for the original party on the same side of the litigation as the intervenor, the intervenor need not itself establish standing. See id. at 1206. In support, it observed that “on many occasions the Supreme Court has noted that an intervenor may not have standing, but has not specifically resolved that issue, so long as another party to the litigation had sufficient standing to assert the claim at issue,” id. at 1205 (citing McConnell v. Fed. Election Comm‘n, 540 U.S. 93, 233, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003); Arizonans for Official English v. Arizona, 520 U.S. 43, 66, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); and Diamond v. Charles, 476 U.S. 54, 64, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)). This failure to resolve the intervenor‘s standing was significant because the Court could not simply ignore whether the requirements of Article III had been satisfied. “[S]tanding implicates a court‘s jurisdiction, [and] requires a court itself to raise and address standing before reaching the merits of the case before it.” Id. The panel recognized, however, that “if the original party on whose side a party intervened drops out of the litigation, the intervenor will then have to establish its own standing to continue pursuing litigation.” See id. at 1205 n. 3.
On rehearing en banc we adopt the panel‘s reasoning on this issue and hold that parties seeking to intervene under
III. SOVEREIGN IMMUNITY
A. Description of the Sovereign-Immunity Claim
Before we turn to the application of
Judge McConnell‘s concurrence (the “SI concurrence“) contends that intervention by SUWA under
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 ....”
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.2 Furthermore (continuing with the contention), even though no language in the Quiet Title Act bars intervention on the side of the United States, freedom from such intervention is such a fundamental attribute of sovereignty that it must be recognized because it is not expressly waived in the Act.
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, 478 U.S. 501, 528-29, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986) (“It has never been supposed that one party—whether an original party, a party that was joined later, or an intervenor—could preclude other parties from settling their own disputes and thereby withdrawing from litigation.“); Johnson v. Lodge #93 of the Fraternal Order of Police, 393 F.3d 1096, 1106 (10th Cir.2004). And to the extent that an intervenor can present arguments against settlement to which the government must respond, so can an amicus. See United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 992-93 (2d Cir.1984) (Friendly, J.); Latin Am. Law Enforcement Ass‘n v. City of LA, 29 F.3d 633, 1994 WL 383884, at *3 (9th Cir.1994) (unpublished table decision); In re Telectronics Pacing Sys., Inc., 137 F.Supp.2d 985, 1021-24 (S.D.Ohio 2001); Brooks v. State Bd. of Elections, 848 F.Supp. 1548, 1556 (S.D.Ga.1994).
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 intervenor 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,”
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, 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983); Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981). It can require notice of suit, set a statute of limitations, forbid discovery from the government, or even forbid joinder of parties, to name just a few possibilities. The government does not consent to be sued when such a condition is not met, so sovereign immunity generally requires dismissal of the suit if the plaintiff does not satisfy all conditions imposed by the government. See Block, 461 U.S. at 287.
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, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941), offers no support to the SI concurrence‘s position. The SI concurrence asserts that “[t]he sole issue in Sherwood was joinder of necessary parties.” SI concurrence at 1214 n. 5. Yet it was the presentation of a new claim to the tribunal that Sherwood was about. A careful reading of Sherwood shows that the Supreme Court‘s holding was simply that the district court lacked jurisdiction to hear a suit between two private parties, and since victory in that suit was a necessary condition for the plaintiff to bring his suit against the government, that suit could not proceed.
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 312 U.S. at 587) to hear breach-of-contract and other claims against the United States of up to $10,000. Sherwood had obtained a judgment against Kaiser in New York state court for $5,567.22. The state court also entered an order authorizing Sherwood to sue under the Tucker Act to recover damages from the United States for breach of its contract with Kaiser. See id. at 585. Sherwood would be entitled to retain out of any recovery in that suit “a sum sufficient to satisfy his judgment with interest” and costs. id. at 586. Sherwood then sued the United States and Kaiser in federal district court, claiming that Kaiser‘s damages were $14,448.49 and praying for judgment in the amount of $10,000. Kaiser had to be named as a party because of the need to determine (1) Sherwood‘s rights, as against Kaiser, to maintain the suit; (2) what rights Kaiser might have to any damages above $10,000; and (3) the apportionment between Sherwood and Kaiser of any recovery in the suit. See id. at 591. These were all issues quite different from the validity of the claim against the United States. The district court held that it lacked jurisdiction, the Second Circuit reversed, and the Supreme Court reversed the circuit court.
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. It noted that in any suit by Sherwood under the state-court order (which authorized Sherwood to pursue Kaiser‘s claim against the government), Kaiser would have the right “to attack the validity of the order and of the judgment on which it is founded.” Id. at 588-89. In other words, the Court of Claims had no jurisdiction to hear Sherwood‘s claim that he had the right to bring Kaiser‘s claim against the United States; and because resolution of the Kaiser-Sherwood controversy was necessary before Sherwood could proceed against the United States, the Court of Claims had no jurisdiction to hear the case.
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. It rejected that possibility. It began by stating that the rules of procedure cannot enlarge a court‘s jurisdiction.
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 (emphasis added).
If Sherwood‘s suit could be heard in district court, the government would be concerned with the litigation of a variety of issues totally distinct from those raised by the contract claim on which it had waived immunity and, because the district court‘s jurisdictional limit was $10,000, could be subjected to multiple lawsuits.
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. 312 U.S. at 589-90.
But the passage expresses nothing more than the unremarkable proposition that if the district court otherwise lacked jurisdiction to hear Sherwood‘s claim against Kaiser, the rules of procedure could not confer such jurisdiction.
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. One condition in the Tucker Act was that the district court‘s jurisdiction was to be no greater than that of the
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, 517 U.S. 654, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996). But Henderson addresses only whether a Federal Rule of Civil Procedure could override an explicit condition imposed by a statute waiving sovereign immunity. It says nothing about what is inherent in sovereign immunity.
Henderson filed suit against the United States under the former Suits in Admiralty Act,
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 intervenor 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. This description of Sherwood, which focuses on “joinder of claims,” certainly implies that the Court was equating “who may sue” with “who may bring a claim.” There is certainly nothing to suggest that the Court meant “who may sue” to encompass “who may intervene in an ongoing action without introducing a new claim.” To reach that interpretation of the Court‘s language and citation to Sherwood would require “wrenching cases from context.” Id. at 671.
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. 517 U.S. at 671. It devoted one sentence to the proposition that service of process is not jurisdictional, see id. (“Service of process, we have come to understand, is properly regarded as a matter discrete from a court‘s jurisdiction to adjudicate a controversy of a particular kind, or against a particular individual or entity.” (footnotes omitted)), and devoted the next sentence to the proposition that service of process is not a substantive matter, see id. (“Its essential purpose is auxiliary, a purpose distinct from the substantive matters aired in the precedent on which the dissent ... relies—who may sue, on what claims, for what relief, within what limitations period.” (footnotes omitted)). The dichotomy follows from the two sources of restrictions on application of the Federal Rules. The Rules Enabling Act, which authorizes “general rules of practice and procedure,” forbids rules that “abridge, enlarge or modify any substantive right.”
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, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989), which makes nary a mention of Sherwood‘s alleged holding that sovereign immunity precludes the addition of a private defendant in a suit against the United States. Barbara Finley‘s husband and two of her children were killed when their plane struck electric transmission lines. She sued the United States under the Federal Tort Claims Act (FTCA) and attempted to join claims against nonfederal defendants. The FTCA waives sovereign immunity by granting district courts “jurisdiction of civil actions on claims against the United States” for certain torts by government employees.
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, 490 U.S. at 548, it held that bringing additional claims under pendent-party jurisdiction (“jurisdiction over parties not named in any claim that is independently cognizable
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.
The Court concluded: “All our cases ... have held that a grant of jurisdiction over claims involving particular parties does not itself confer jurisdiction over additional claims by or against different parties. Our decision today reaffirms that interpretative rule ....” Id. at 556.
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.
Despite this undoubted familiarity with Sherwood, Finley never mentions “sovereign immunity.” The natural inference is that the Supreme Court did not read Sherwood as saying, or otherwise understand the doctrine of sovereign immunity to say, that the mere joinder of a claim between two other parties to a claim against the United States implicates sovereign immunity. This inference gains further strength from the Supreme Court‘s response to the congressional reaction to Finley.
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, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (“A waiver of the Federal Government‘s sovereign immunity must be unequivocally ex-
The SI concurrence declares that our reference to Finley, and its aftermath in the enactment of
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, 404 U.S. 528 (1972), an opinion that will be addressed further in our discussion of
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
The SI concurrence also relies on
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, 461 U.S. 273, 280-81 (1983):
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. In short, the Quiet Title Act provided for reciprocity. Rather than limiting quiet-title suits to those initiated by the government, private parties could now bring them against the government. The Act was intended to expand the access of private parties to quiet-title litigation with the United States.
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, 454 F.3d 1177 (10th Cir. 2006); but that case involved neither an intervenor nor an amicus. It merely cited the old cases for a different proposition—whether one without a claim to title could file suit.) Our research suggests that the tradition as-
We also reject the SI concurrence‘s reliance 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 v. Department of Veterans Affairs, 498 U.S. 89 (1990), recognized equitable tolling of a limitations period imposed as a condition of a waiver of sovereign immunity. Writing for the Court, Chief Justice Rehnquist acknowledged that “a condition to the waiver of sovereign immunity . . . must be strictly construed,” id. at 94, and “[a] waiver of sovereign immunity cannot be implied but must be unequivocally expressed,” id. at 95 (internal quotation marks omitted). Nevertheless, he said, “[o]nce Congress has made such a waiver, we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver.” Id. He continued: “Such a principle is likely to be a realistic assessment of legislative intent as well as a practically useful principle of interpretation. We therefore hold that the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Id. at 95-96.
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, 498 U.S. at 95-96. Indeed, even the two dissenters in Principi would apply Irwin broadly. Justice Thomas, joined by Justice Scalia, wrote: “[W]here the Government is made subject to suit to the same extent and in the same manner as private parties are, Irwin holds that the Government is subject to the rules that are applicable to private suits.” 541 U.S. at 426 (internal quotation marks omitted). The dissent‘s difference with the majority was its view that the predicate for the Irwin holding was absent in Scarborough. Justice Thomas said that “there is no analogue in private litigation for the EAJA fee awards at issue here [because] [s]ection
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
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, 453 U.S. 156 (1981), held that a plaintiff was not entitled to a jury trial in a suit against the government under the Age Discrimination in Employment Act (ADEA). Although the ADEA explicitly provided for jury trials in claims against private employers, it was silent regarding jury trials of claims against the United States. See id. at 162-63. And
In sum, the Rules Enabling Act and the Federal Rules of Civil Procedure require applying
IV. RULE 24(a) INTERVENTION AS OF RIGHT
Federal Rule of Civil Procedure 24(a) states:
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.
39 F.R.D. 69, 109 (1966). The Advisory Committee Notes indicate that at least part of the motivation for the change was to set aside the Supreme Court‘s unanimous decision in Sam Fox Publishing Co. v. United States, 366 U.S. 683 (1961). The Sam Fox decision arose out of a government antitrust proceeding against an unincorporated publishers’ association, ASCAP, which had resulted in a consent decree that the government was attempting to modify. Sam Fox, a member of ASCAP, moved to intervene in the action under
[A]ppellants . . . 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 “[t]his reasoning might be linguistically justified . . . but it could lead to poor results.”
The 1966 changes to
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.”
It should go without saying that the 1966 amendments to
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.”
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
The first Supreme Court decision on present
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
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. It claimed that the divestiture plan could impair the ability of its supplier to provide Cascade‘s needs in the future. See id.. The Court considered Cascade‘s application to intervene under the present version of
In contrast, the Supreme Court‘s second decision considering
The Donaldson opinion then rejected the taxpayer‘s argument that he was entitled to intervene under language in Reisman v. Caplin, 375 U.S. 440, 445 (1964). The Court said that Reisman had not “pronounce[d], even when confronted with a situation concerning an attorney‘s work product, that the taxpayer possesses an absolute right to intervene in an internal revenue summons proceeding. The usual process of balancing opposing equities is called for.” Donaldson, 400 U.S. at 530. Particularly because Reisman never mentioned
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
[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 unwarrantedly 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
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
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, 255 F.3d 1246, 1251 (10th Cir. 2001) (quoting Coalition of Ariz./N.M. Counties for Stable Econ. Growth v. Department of Interior, 100 F.3d 837, 840 (10th Cir. 1996)). We will refer to this formulation as the “DSL” test. The DSL test, or at least its “direct” and “legally protectable” components, is problematic. Whether an interest is direct or indirect
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, 504 U.S. 555, 560 (1992). But as we recently wrote, “The term legally protected interest has generated some confusion” in the standing context. In re Special Grand Jury 89-2, 450 F.3d 1159, 1172 (10th Cir. 2006); see Smuck v. Hobson, 408 F.2d 175, 178 (D.C. Cir. 1969) (Bazelon, C.J., plurality opinion) (“The effort to extract substance from the conclusory phrase ‘interest’ or ‘legally protectable interest’ is of limited promise.“).
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
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
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
Most striking about the pedigree of the district court‘s test in Hobson is that it was rejected on appeal. See Smuck, 408 F.2d 175. The circuit court permitted the parents to intervene, at least to the extent that the district court‘s order limited the discretion of the school board. See id. at 178-80. The three dissenters, including future Chief Justice Burger, did not address intervention; but they implicitly accepted intervention because the sole appellants were prospective intervenors and the dissenters would have remanded the case to the district court with instructions to vacate the decree. See id. at 194 (Danaher, J., dissenting). Writing for three of the four members of the majority on this point (the fourth member would have denied intervention), Judge Bazelon interpreted
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
The leading treatises on the subject appear to share a similar reading of
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, 408 F.2d at 179-80); see id. at 288 (describing Judge Bazelon‘s opinion as “full and discriminating examination of the rule“).
In light of the pragmatic concerns that gave birth to the 1966 amendment to
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
[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
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
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., 699 F.2d 943, 948 (8th Cir. 1983). We doubt that such an interest would, in common parlance, be considered “direct.”
The Fifth Circuit case cited by the
As for our own circuit, we need point only to Natural Resources Defense Council, 578 F.2d 1341. We reversed denial of intervention under
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, 385 F.2d 694 (D.C. Cir. 1967), pose a particular challenge to advocates of the test. The court in that case permitted the Wisconsin banking commissioner to intervene in a suit by a Wisconsin bank against the United States Comptroller of the Currency to prevent the opening of a branch of a national bank near the state bank. One wonders what the commissioner‘s legally protectable interest was, yet the importance of the commissioner‘s intervention is made clear by the opinion.
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 v. Ozarks Rural Elec. Coop. Corp., 79 F.3d 1038, 1042 (10th Cir. 1996). But see Maine v. Dir., U.S. Fish & Wildlife Serv., 262 F.3d 13, 14 (1st Cir. 2001) (applying abuse-of-discretion review).
SUWA‘s concern in this case is the potential damage to the environment arising from vehicular traffic in Salt Creek Canyon. It claims that its members “regularly visit Canyonlands National Park—and Salt Creek Canyon in particular—for conservation, aesthetic, scientific and recreational purposes.” Aplt. Supp. Br. at 4. It has been a determined advocate for restricting vehicular access to Salt Creek Canyon, engaging in extensive, and successful, litigation to restrict that traffic. See San Juan County, 420 F.3d at 1201-03; S. Utah Wilderness Alliance v. Nat‘l Park Serv., 387 F. Supp. 2d 1178, 1182-84 (D. Utah 2005). Indeed, it was SUWA‘s previous litigation that led to the 1998 closure to vehicular traffic of Salt Creek Canyon above Peekaboo Spring and played some role in the NPS‘s June 15, 2004, closure order. See 69 Fed. Reg. at 32,871-72 (adopting closure order and recounting earlier litigation involving SUWA); see also San Juan County, 420 F.3d at 1202.
We think it indisputable that SUWA‘s environmental concern is a legally protectable interest. After all, it was this concern that gave it standing to bring its litigation against the NPS regarding Salt Creek Road. See Lujan, 504 U.S. at 562-63 (“[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.“); Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972) (plaintiff would have standing to challenge road development because of impact on scenery and wildlife if it or its members would be significantly affected by the development); Sierra Club v. U.S. Dep‘t of Energy, 287 F.3d 1256, 1265-66 (10th Cir. 2002) (environmental group has standing to challenge grant of easement).
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.”
Of course, if the R.S. 2477 claim is rejected, the litigation will not injure SUWA‘s interests. But, unlike the
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, 578 F.2d 1341, we refused to “suggest that Kerr-McGee could expect better treatment from state authorities than federal,” id. at 1345; yet we reversed the denial of the company‘s application to intervene because we recognized that the litigation could result in changing licensing authority from the state to the federal government. Similarly, in Smuck, 408 F.2d 175, the D.C. Circuit permitted parents of school children to intervene to oppose the portions of a district-court order that limited school-board discretion, even though there was room for doubt that the school board (whose membership was about to change and which was not itself challenging the order, see id. at 177) would exercise its discretion to do anything different from what was ordered. See id. at 180-81; see also Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 738 F.2d 82 (8th Cir. 1984) (reversing denial of application to intervene by teacher organizations; litigation could result in change of organizations’ bargaining partner from present school districts to a consolidated district).
We recognize that SUWA does not claim that it has title to Salt Creek Road, even though this is a quiet-title suit. But
Thus, we conclude that SUWA‘s interest in the environmental impact of Salt Creek Road vehicular traffic satisfies the conditions of
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., 425 F.3d 735 (10th Cir. 2005), presumably for the proposition that
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
The Appellees also rely on our decision in Ozarks, 79 F.3d 1038, to contend that SUWA has only a “contingent” interest in the litigation and that such an interest fails to satisfy
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
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, 536 F.2d 1332 (10th Cir.1976) (per curiam), we affirmed the denial of an application to intervene as of right by environmental groups seeking to enter an action challenging the constitutionality of the Migratory Bird Act and Eagle Protection Act insofar as it restricted possession of certain feathered artifacts. Id. at 1333; id. at 1334 n. 1 (Holloway, J., concurring in the result). We explained that the applicants could not demonstrate that they had an interest that would be “impeded by the disposition of th[e] action.” See id. at 1334 (per curiam). We have said nothing here that would require a contrary result.
Likewise, in Alameda Water & Sanitation District v. Browner, 9 F.3d 88, 90 (10th Cir.1993), we affirmed the denial of intervention as of right to environmental groups seeking to intervene to provide the district court the benefit of its views regarding “nonstructural alternatives” to the construction of a dam. But consideration of those alternatives would not have been proper in the district-court proceeding, which was restricted to the administrative record. See id. at 91. We reasoned that “[t]he opportunity to offer extraneous evidence” beyond the issues before the court was not a protectable interest, and that therefore the interest requirement of
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
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 defend[ing the government‘s] title.” Aplee. (Fed.Defs.) Supp. Br. at 26; see Aplee. (County) Supp. Br. at 21.
We are persuaded that the Appellees 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, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686. The Secretary of Labor was seeking to set aside the election of officers of a union. When a union member sought to intervene, the Secretary objected on the ground that he would adequately represent the member‘s interest. The Court disagreed. It observed that under the applicable federal statute the Secretary of Labor had duties both to protect the rights of individual union members against their union and to serve the “vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member.” Id. at 539, 92 S.Ct. 630 (internal quotation marks omitted). “Even if the Secretary is performing his duties, broadly conceived, as well as can be expected,” wrote the Court, “the union member may have a valid complaint about the performance of ‘his lawyer.‘” Id. In a footnote the Court added: “The requirement of [
We have repeatedly adopted this reasoning. In National Farm Lines v. Interstate Commerce Commission, 564 F.2d 381, 382 (10th Cir.1977), the plaintiff challenged the constitutionality of a section of the Interstate Commerce Act and subordinate regulations. Several representatives of common carriers operating under certificates issued by the Interstate Commerce Commission sought to intervene to defend the statutory scheme. We held that representation by the Interstate Commerce Commission of the applicant‘s interests was inadequate because “the governmental agency [was] seeking to protect not only the interest of the public but also the private interest of the petitioners in intervention.” Id. at 384.
We did so again in Clinton, 255 F.3d at 1248, a suit challenging the validity of a presidential proclamation establishing a national monument. Environmental organizations sought to intervene. We disagreed with the district court‘s view that the “case [was] not about the environment, ... not about the intervenors’ property rights or interests in the monument in question ... [but] about the legality of the president‘s actions in creating the monument.” Id. at 1252. We explained that “the government is obligated to consider a broader spectrum of views, many of which may conflict with the particular interest of the would-be intervenor.” Id. at 1256. The environmental organizations, we concluded, had “met the minimal burden of showing that their interests may not be adequately represented by the existing parties.” Id.
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, 79 F.3d at 1042 (quoting Bottoms v. Dresser Indus., Inc., 797 F.2d 869, 872 (10th Cir. 1986)); see id. (“While [the applicant‘s] ultimate motivation in this suit may differ from that of [the original party], its objective is identical—to prevent [the city‘s] condemnation.“).
This presumption should apply when the government is a party pursuing a single objective. In Hooker, 749 F.2d 968, the United States filed an action against a chemicals-and-plastics corporation and related business organizations for disposal of chemical waste allegedly in violation of federal law. Environmental groups sought to intervene. The Second Circuit, per
The Seventh Circuit has spoken to the same effect, although perhaps more emphatically. In Solid Waste Agency, 101 F.3d 503, a multicity joint venture brought an action against the Army Corps of Engineers after the Corps denied its permit for a proposed landfill. The village in which the landfill was to be located and a citizens group sought to intervene on the side of the Corps. See id. at 504. The appeals court rejected the prospective intervenors’ arguments, reasoning that “[w]here the interests of the original party and of the intervenor are identical—where in other words there is no conflict of interest—adequacy of representation is presumed.” See id. at 508. It noted that the interests of the Corps and the prospective intervenors in the case were “the same: to defeat [the joint venture‘s] effort to invalidate the denial of the permit.” Id. The court acknowledged that the Corps’ lawyer, the Department of Justice, possessed “additional interests stemming from its unique status as lawyer for the entire federal government.” Id. But it reasoned that this alone could not be enough to defeat the presumption of adequate representation, because “then in no case brought or defended by the Department could intervention be refused on the ground that the Department‘s representation of the would-be intervenor‘s interest was adequate.” Id.
Perhaps closest in point is the First Circuit‘s opinion in Maine v. Director, U.S. Fish & Wildlife Service, 262 F.3d 13 (1st Cir.2001). The State of Maine and several business groups challenged the designation by the Fish and Wildlife Service and the National Marine Fisheries Service (collectively, the Services) of the Atlantic Salmon in part of Maine as an endangered species. See id. at 14. Several conservation groups sought to intervene on the side of the Services, contending that because they had previously engaged in litigation with the Services over protection of the salmon, the Services could not adequately represent their interests. See id. In rejecting the prospective intervenors’ application, the appeals court employed an “assumption, subject to evidence to the contrary, that the government will adequately defend its actions, at least where its interests appear to be aligned with those of the proposed
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, 100 F.3d at 845, in which the federal agency was defending a position that it had reluctantly adopted only as a result of litigation by the prospective intervenor. The Federal Defendants have displayed no reluctance, at least so far as the record before us shows, to claim full title to Salt Creek Road. SUWA has provided no basis to predict that the Federal Defendants will fail to present pertinent evidence uncovered by SUWA or an argument on the merits that SUWA would make. Cf. Maine, 262 F.3d at 18-20 (affirming denial of intervention even though prospective intervenors would present an argument that the government was highly unlikely to make; argument could be presented by them in capacity of amicus curiae in district court). Contrary to the dissent, Op. (Ebel, J., dissenting) at 1230-31, we are not inclined to infer from the Federal Defendants’ opposition to intervention that they will fail to vigorously resist the claim to an RS 2477 right-of-way. Indeed, we think that their assertion that they will adequately represent SUWA‘s interests in this case is entitled to respect. One of the arts of litigation is keeping matters as simple as possible. We have been instructed from childhood that too many cooks spoil the broth. To oppose another cook in the kitchen is not to oppose the other cook‘s desire for a superb meal.
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, 262 F.3d at 21-22; Solid Waste Agency, 101 F.3d at 508-09.
V. RULE 24(b) PERMISSIVE INTERVENTION
The district court in this case also denied SUWA‘s application to intervene permissively under
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 protectable 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 v. NLRB, 417 F.3d 1161, 1168 (10th Cir.2005) (issue mentioned but not argued in footnote not adequately briefed); Utahns for Better Transp. v. U.S. Dep‘t of Transp., 305 F.3d 1152, 1169 (10th Cir. 2002) (argument consisting entirely of conclusory statements and unhelpful citations deemed waived for failure to brief). In any event, the district court‘s denial of permissive intervention was not an abuse of discretion. See Ozarks, 79 F.3d at 1043 (reviewing denial of permissive intervention under abuse-of-discretion standard).
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.
PAUL J. KELLY, JR., Circuit Judge, joined by TACHA, Chief Judge, PORFILIO, O‘BRIEN, McCONNELL and HOLMES, Circuit Judges, 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
This case is a dispute between the federal government and San Juan County over whether the County has a valid right of way over a dirt road in Canyonlands National Park. Although it claims no legal or equitable interest in the title to the land, SUWA seeks to intervene as of right pursuant to
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.2
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
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.6 They are given the opportunity to make arguments, present evidence, register objections, and appeal adverse decisions. Furthermore, an intervenor in a quiet title action seeking to maintain the land‘s current use has every incentive to use its participation to postpone a final decision on the merits, thereby prolonging its use at the expense of the parties’ need to have a final adjudication of the title.7 In light of
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
McCONNELL, Circuit Judge, joined by TACHA, Chief Judge, and PORFILIO, PAUL J. KELLY, JR., O‘BRIEN, and HOLMES, Circuit Judges, 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 amici 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, 255 F.3d 1246, 1249 (10th Cir.2001) (internal quotation marks omitted), and is what makes the majority‘s conclusion that SUWA has an “interest relating to” the subject of this litigation seem even remotely plausible.
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
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, 476 U.S. 834, 841, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1986). Thus, even though the government raised this issue late in the litigation, it is not an argument that this Court may ignore or treat as waived. See Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“The requirement that jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States’ and is ‘inflexible and without exception.‘“) (quoting Mansfield, C. & L.M.Ry. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884)); Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (“Subject-matter jurisdiction ... is an Art. III ... requirement.... [A] party does not waive the requirement by failing to challenge jurisdiction early in the proceedings.“). As this Court noted in Neighbors for Rational Development v. Norton, because the federal government‘s sovereign immunity argument under the “Quiet Title Act ... involves subject matter jurisdiction, we begin there.” 379 F.3d 956, 960 (10th Cir.2004).
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, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411-12, 5 L.Ed. 257 (1821). And even when the United States does waive its sovereign immunity, that waiver is to be “strictly construed, in terms of its scope, in favor of the sovereign.” Lane, 518 U.S. at 192, 116 S.Ct. 2092; see also Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986) (“[W]e must construe waivers strictly in favor of the sovereign, and not enlarge the waiver beyond what the language requires.” (internal citations and quotation marks omitted)); United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 547 (10th Cir.2001). In other words, we are to “constru[e] ambiguities in favor of immunity.” United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995). Consequently, where a statute can plausibly be read not to waive an aspect of the government‘s immunity, the Court must adopt that reading. United States v. Nordic Village, Inc., 503 U.S. 30, 37, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); see also U.S. Dep‘t of Energy v. Ohio, 503 U.S. 607, 627, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992).
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, 517 U.S. 654, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996), the Supreme Court considered whether the 120-day period for service of process set forth in
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, 116 S.Ct. 1638. Significantly, those matters include “who may sue, on what claims, for what relief, within what limitations period.” Id. (footnotes omitted). It follows that rules such as
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, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). See 517 U.S. at 671 n. 21, 116 S.Ct. 1638. Sherwood concerned the relation between joinder of necessary parties under the Federal Rules of Civil Procedure and the Tucker Act‘s waiver of sovereign immunity to permit suits against the United States “founded ... upon any contract, express or implied, with the Government of the United States.” Id. at 587, 61 S.Ct. 767 (internal quotation marks omitted). Sherwood, a judgment creditor, brought suit in federal district court against the United States for damages for breach of contract owed Kaiser, the judgment debtor. Id. at 586-87, 61 S.Ct. 767. Because the judgment debtor was a necessary party to such a suit, Sherwood included Kaiser as co-defendant, along with the United States, in the Tucker Act suit. Id. at 588, 61 S.Ct. 767. Henderson‘s citation of Sherwood demonstrates that the substantive question of “who may sue” is not confined to who may initiate suit, see Maj. Op. 1179, but includes who may be joined as a party to a suit brought by another.
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, 61 S.Ct. 767. The Supreme Court reversed. It explained that the Second Circuit‘s theory
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
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, 61 S.Ct. 767. Interpreting the Tucker Act “in the light of its function in giving consent of the Government to be sued,” id. at 590, 61 S.Ct. 767, and stressing that “[t]he matter is not one of procedure but of jurisdiction whose limits are marked by the Government‘s consent to be sued,” id. at 591, 61 S.Ct. 767, the Court held that the Act “did no more than authorize the District Court to sit as a court of claims,” which is not authorized to hear suits between private parties, id. Accordingly, notwithstanding the Rule of Civil Procedure authorizing joinder of a private third party in district court, notwithstanding the fact that Kaiser (like SUWA) would be a co-defendant and not a plaintiff, and notwithstanding that Kaiser would present no new claims for coercive relief against the United States, the Court held that the district court lacked jurisdiction to extend the Tucker Act suit to parties or claims other than those expressly authorized. Id.3
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.4 The majority‘s argument is precluded by Sherwood and Henderson, which treat the matter of “who may sue” and who may be joined in an existing suit as no less “substantive,” 517 U.S. at 671, 116 S.Ct. 1638, and “jurisdiction[al],” 312 U.S. at 591, 61 S.Ct. 767, than the matter of “what claims” may be brought.5 I believe these decisions make clear that
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.”
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., 363 F.3d 1069, 1071 (10th Cir.2004) (“Members of the public ... do not have a ‘title’ in public roads, and therefore cannot meet the requirements of
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, 454 F.3d 1177 (10th Cir.2006), this Court engaged in a comprehensive review of statutory schemes for resolution of disputes over claims to patents and other ownership interests in federal land and mining claims, dating back to 1866. Id. at 1182-86. The Court found that cases involving mining claims “uniformly preclude persons ... not claiming a property interest in the land, from judicially contesting the validity of the patent.” Id. at 1186; see also id. at 1188 (similar conclusion with respect to land patents). This Court concluded: “Permitting a challenge by third parties with no interest in the land would allow the kind of lengthy litigation over rights that a patent was designed to avoid.” Id. at 1185. As the Supreme Court commented as far back as 1881, “[i]t does not lie in the mouth of a stranger to the title to complain of the act of the government with respect to it.” Smelting Co. v. Kemp, 104 U.S. 636, 647, 26 L.Ed. 875 (1881).
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, 454 F.3d at 1187 (citing Wight v. Dubois, 21 F. 693, 693-94, 696 (C.C.D.Colo.1884); Beals v. Cone, 188 U.S. 184, 187, 23 S.Ct. 275, 47 L.Ed. 435 (1903)). In light of the Quiet Title Act‘s careful specification of parties and claims and its other requirements designed to limit litigation over title disputes, it is highly unlikely that Congress implicitly departed from this traditional model of litigation when it consented to be sued by persons claiming title to real property. See Lehman, 453 U.S. at 162, 101 S.Ct. 2698 (“The appropriate inquiry, therefore, is whether Congress clearly and unequivocally departed from its usual practice in this area ....“); cf. Block, 461 U.S. at 284, 103 S.Ct. 1811 (noting that one of the concerns prompting the inclusion of a statute of limitations and a limited retroactivity provision in the Quiet Title Act was the government‘s fear of “‘a flood of litigation ... putting an undue burden on the Department [of Justice] and the courts‘“) (quoting H.R.Rep. No. 92-1559, at 7 (1972), U.S.Code Cong. & Admin.News 1972, pp. 4547, 4553-54 (letter from the Deputy Attorney General)).
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., 462 U.S. 36, 103 S.Ct. 2218, 76 L.Ed.2d 400 (1983), which was a challenge, brought under the Administrative Procedures Act, to the Department of Interior Board of Land Appeals’ ruling that gravel constituted “a mineral reserved to the United States in patents issued under the Stock-Raising Homestead Act.” Id. at 41, 103 S.Ct. 2218 (quoting 85 Interior Dec. 129, 139 (1978)). The plaintiff also sought to quiet title to the gravel. As this Circuit explained in our opinion in the case:
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, Inc. v. Andrus, 664 F.2d 234, 236 n. 4 (10th Cir.1981). In other words, the intervenors were allowed into the case because the agency‘s interpretation of what constituted “minerals” under the Stock-Raising Homestead Act might control ownership of gravel on their own lands; they apparently sought to quiet title to ownership of the gravel on their property. In any event, because the district court made no rulings with respect to their claims, the intervenors did not appeal and neither this Court nor the Supreme Court had occasion to pass on whether their intervention was proper. In both this Court and the Supreme Court, the former intervenors participated solely as amici curiae, as the cases cited in High Country suggest is proper for parties whose own claim to title is not at issue.
In the second case relied on by the majority, Pathfinder Mines Corp. v. Hodel, 811 F.2d 1288 (9th Cir.1987), the Department of Interior Board of Land Appeals determined that the statute creating the Grand Canyon National Game Preserve “withdrew Preserve lands from entry because mineral entry was inconsistent with the purposes of the Game Preserve.” Id. at 1290. The Board thus declared void ab initio several of Pathfinder‘s mining claims, which were brought under the General Mining Law of 1872. Id. Two environmental organizations intervened in support of the Board‘s interpretation, and the Ninth Circuit merely noted this posture in its opinion. Id. The court did not address the propriety of the intervention, and made no mention of any claims or arguments raised by the intervenors. See Pennhurst, 465 U.S. at 119, 104 S.Ct. 900 (warning against ascribing precedential significance “when questions of jurisdiction have been passed on in prior decisions sub silentio” (internal quotation marks omitted)).
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.
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
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, 530 U.S. 428, 441 n. 7, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000)). This is not persuasive.
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, 118 F.3d 1400, 1404 (10th Cir.1997) (“Our review of the relevant case law demonstrates that it is truly the exceptional case when an appellate court will reach out to decide
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-defendants to disagree with the Solicitor General‘s judgment. See, e.g., Pet. for Writ of Cert. at 10, Mitchell v. Helms, 530 U.S. 793, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000) (petition for certiorari filed by a private intervenor-defendant where the Court of Appeals held a federal statute unconstitutional and the United States declined to petition). Indeed, experienced practitioners regard the ability to appeal or petition as one of the principal reasons to intervene in support of the government in public interest litigation. From the government‘s point of view, however, the ability of a nominal co-party to appeal or petition deprives the Department of Justice of a valuable tool of strategic litigation management.
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 intervenor 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 intervenors do not have the power of absolute veto over settlements. See Local No. 93 v. City of Cleveland, 478 U.S. 501, 528-30, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). But, in the same breath, the Court also held that “an intervenor is entitled to present evidence and have its objections heard at the hearings on whether to approve a consent decree.” Id. at 529, 106 S.Ct. 3063. Thus, in City of Cleveland itself, “Local 93 took full advantage of its opportunity to participate in the District Court‘s hearings on the consent decree. It was permitted to air its objections to the reasonableness of the decree and to introduce relevant evidence....” Id. Consequently, while a non-title intervenor in a Quiet Title Act case would not hold an absolute veto over settlement, it might well take advantage of litigation prerogatives not open to an amicus—such as evidentiary hearings and the power to enforce rulings in its favor. In other words, the United States would have to litigate against the intervenor in defense of its settlement with the parties that actually have a claim to title—a form of litigation not contemplated by the Quiet Title Act‘s limited waiver of sovereign immunity.
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
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, 517 U.S. at 671, 116 S.Ct. 1638; Sherwood, 312 U.S. at 591, 61 S.Ct. 767. See pages 1213-15 above. Nor has the Supreme Court abandoned the rule of strict construction of waivers of sovereign immunity “[i]n recent years,” as the majority provocatively asserts. Maj. Op. 1185. For recent cases to the contrary see, for example, Orff v. United States, 545 U.S. 596, 601-02, 125 S.Ct. 2606, 162 L.Ed.2d 544 (2005); Dep‘t of the Army v. Blue Fox, Inc., 525 U.S. 255, 261, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999); Lane, 518 U.S. at 192, 116 S.Ct. 2092.
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. Dep‘t of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); Scarborough v. Principi, 541 U.S. 401, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004)). In both cases, the Court interpreted the statutes of limitation contained within immunity waivers as allowing generally-applicable exceptions to strict compliance with the
According to the Court‘s opinion in Irwin, the decision reflected nothing more
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.8
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.“).9
ered or invented by a person while in the employment or service of the United States, where the invention was related to the official functions of the employee“);
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 312 U.S. at 589, 61 S.Ct. 767. Unless we accept the majority‘s untenable view that Sherwood speaks only to the joinder of claims, see note 5 above, or has been limited by treatises, Maj. Op. at 1177-78, this is a decisive objection.
The majority does cite Trbovich v. United Mine Workers of America, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972), drawing significance from the fact that, in the case, “[n]o one thought to suggest ... that there is a sovereign interest that would be violated by allowing a union member to intervene on the side of the Secretary of Labor in challenging a union election.” Maj. Op. 1183. But no one thought to advance this argument because sovereign immunity does not apply in cases, like Trbovich, where the government is the plaintiff.10 Trbovich is, therefore, irrelevant.
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, 301 F.2d 857 (2d Cir. 1962). That opinion, however, illustrates precisely the danger of the idea that there is no sovereign immunity bar to the intervention of anyone who is nominally aligned with the government. The case involved competing claims to property originally owned by International Mortgage and Investment Corporation (“IMC“), which had been seized by the federal Office of Alien Property after Nazi Germany appropriated stock in the corporation from its Jewish owners. Id. at 859. The plaintiffs were private persons and
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 863, 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
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., 425 F.3d 735, 742-43 (10th Cir. 2005), SUWA initially sued BLM; BLM then sued the Utah counties and aligned itself with SUWA. On remand after this Court‘s decision, BLM negotiated a settlement with the counties. At that point, the party alignments shifted a second time, and SUWA opposed the settlement, which was then approved over SUWA‘s opposition. See S. Utah Wilderness Alliance v. Bureau of Land Mgmt., No. 2:96-cv-00836, Memorandum in Support of Motion to File Third Amended Complaint, Docket No. 461, at 4-5 (D. Utah May 3, 2006). One would expect precisely the same type of maneuvering if ATV user groups intervened in support of the counties and the counties settled for less than the ATV users desired. Either way, the parties with claims to title—namely, the United States, the counties, and the State—would be forced to litigate against an entity that is a “stranger to the title.” Smelting Co. v. Kemp, 104 U.S. 636, 647 (1881). And if that is impermissible in the context of intervenor-plaintiffs, I should think it equally impermissible in the context of intervenor-defendants.
* * * *
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.
EBEL, Circuit Judge, joined by Judges SEYMOUR, BRISCOE, and LUCERO, 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., 295 F.3d 1111, 1117 (10th Cir. 2002); Utah Ass‘n of Counties, 255 F.3d at 1255-56; Coalition of Az./N.M. Counties for Stable Econ. Growth v. Dep‘t of Interior, 100 F.3d 837, 845-46 (10th Cir. 1996); Nat‘l Farm Lines v. Interstate Commerce Comm‘n, 564 F.2d 381, 383-84 (10th Cir. 1977). Further, this court has consistently held that the intervention applicant‘s burden in this regard is minimal. See Utah Ass‘n of Counties, 255 F.3d at 1254; Coalition of Az./N.M. Counties, 100 F.3d at 844. This is in line with this circuit‘s “somewhat liberal line in allowing intervention.” Utah Ass‘n of Counties, 255 F.3d at 1249 (quotation omitted).
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, 100 F.3d at 844-45. Only if the objectives are identical may we presume the United States will adequately represent SUWA‘s interest.1 See id. The majority opinion agrees that this is the proper measure. See Maj. Op. at 1204.
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
I. 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 action2 requires a simple binary determination—i.e., does San Juan County have a right-of-way easement through Salt Creek Canyon or not. But the real question at issue in this litigation is more nuanced than that. This litigation concerns a right-of-way in the nature of an easement. As such, this litigation may address, and will unavoidably affect, not only whether there is any right-of-way, but also the nature and scope of that right-of-way if it does exist.3 See Maj. Op. at 1200 (“The quiet-title claim may well affect vehicular traffic on the road.“); id. at 1202 (quoting
lar traffic] will be revisited to insure that it is consistent with the rights associated with such a right-of-way” (emphasis added)); id. at 1202 (observing that at oral argument counsel for the federal defendants acknowledged that, even if the NPS retains regulatory authority, a district court ruling that the County has an easement in Salt Creek Road “may have some impact on what can be regulated“). San Juan County alleges that “its right of way must be sufficient in scope for vehicle traffic,” id. at 1171 (emphasis added), and that is really the crux of the dispute between the parties. It is SUWA‘s objective, not only to defend the United States’ unencumbered title to this property, but to keep all vehicles out of Salt Creek Canyon and to argue that if any historical easement does exist it does not encompass vehicular traffic. Seeking to protect its purely environmental interest in this property, SUWA will want any right-of-way that does exist to be drawn as narrowly as
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
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
[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 intervenor also wishes to contest.
Utah Ass‘n of Counties, 255 F.3d at 1255-56 (quotation, citation, and alteration omitted).
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, 578 F.2d 1341, 1346 (10th Cir. 1978) (quotation omitted).4
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, 420 F.3d 1197, 1202 (10th Cir. 2005). The administrative proceedings and litigation involved in that dispute spanned over a decade. See id. This is certainly a factor to be considered in determining whether SUWA‘s interests and those of the United States diverge. See Coalition of Az./N.M. Counties, 100 F.3d at 845-46.
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 Maj. 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, 100 F.3d at 845 (noting in that case that the government‘s “ability to adequately represent [the intervention applicant] despite its obligation to represent the public interest is made all the more suspect by its reluctance in protecting the Owl, doing so only after [the intervention applicant] threatened, and eventually brought, a law suit to force compliance with the [Endangered Species] Act“). The United States must represent multiple interests in the decisions as to how broadly or narrowly it attempts to portray the easement and how zealously it chooses to resist San Juan County and Utah‘s claims for an
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, 255 F.3d at 1256; Utahns for Better Transp., 295 F.3d at 1117.
In addition, according to SUWA, the National Park 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
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., 425 F.3d 735, 741-42 (10th Cir. 2005). Yet, as SUWA alleges, NPS has not further investigated these matters. If SUWA is entitled to intervene, it will be able to ensure that the evidentiary record before the district court is complete, as well as fully reflecting SUWA‘s interests and concerns.
In Maine v. Dir., United States Fish & 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 case 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.” 262 F.3d at 20. However,
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
LUCERO, Circuit Judge, 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
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
In adopting a revised formulation of the impaired-interest requirement, I do not
There can be no question that under today‘s pronounced
As the majority recognizes, SUWA must also show that its
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
III
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
Notes
For the first time in its en banc briefs, the United States vaguely suggests that, because