Lead Opinion
More than 1.6 million acres of federal public land lie within Kane County, Utah, which includes some of the most fragile and picturesque public lands in the United States. This case involves a dispute over alleged but unproven rights of way over these federal lands created by a Reconstruction-era law known as Revised Statute 2477 (“R.S. 2477”). At base, we face an ordering question: May a county exercise management authority over federal lands in a manner that conflicts with the federal management regime without proving that it possesses valid R.S. 2477 rights of way? As did the district court, we answer this question in the negative.
There are thousands of miles of claimed R.S. 2477 rights of way across federal lands in the western United States. This case involves some of those rights. In most instances, the scope and extent of such rights have never been placed at issue. This case involves some of those claimed R.S. 2477 rights as to which a dispute has arisen.
Kane County advanced numerous arguments below, contending: (1) the environmental plaintiffs lacked standing; (2) the case became moot when the County rescinded the challenged ordinance; (3) the environmental plaintiffs did not possess a cause of action; and (4) both the United States and the State of Utah were necessary and indispensable parties. Rejecting each of these assertions, the district court found that Kane County’s activities were preempted and enjoined it from enacting similar ordinances or posting signs on unproven R.S. 2477 routes.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
A
Nearly 1.3 million of the 1.6 million acres of federal public land in Kane County lie within Grand Stairease-Escalante National Monument (“Grand Staircase-Escalante” or “the Monument”). The other areas involved in this case include: Glen Canyon National Recreation Area (“Glen Canyon NRA”), Paria Canyon-Vermilion
Overlaying this complex framework is R.S. 2477, which created rights of way to construct highways over public land. That statute allows the creation of rights of way without any “administrative formalities: no entry, no application, no license, no patent, and no deed on the federal side; no formal act of public acceptance on the part of the states or localities in whom the right was vested.” S. Utah Wilderness Alliance v. BLM,
B
The ongoing feud over OHV use on federal lands in Kane County has its roots in a Department of the Interior land management plan that governs Grand StaircaseEscalante. Notice of the plan was published in the Federal Register. Grand Staircase-Escalante National Monument Approved Management Plan and Record of Decision, 65 Fed.Reg. 10,819 (Feb. 29, 2000). Included in the Monument Plan was a map, known as “Map 2,” which displays all roads in the Monument that are open to vehicle traffic. Monument Plan 46. Roads not indicated as open on Map 2 are closed “subject to valid existing rights.” Id.
In 2003, after asserting that BLM road signs inside the Monument violated state law, Kane County officials unilaterally removed thirty-one such signs. Thirty of the removed signs restricted OHV travel. Approximately a year and a half later, county officials began erecting numerous county road signs on federal lands. Despite ongoing dialogue with BLM regarding which roads were disputed and which were agreed-upon R.S. 2477 roadways and a request from BLM that the County not place signs on the disputed roadways, Kane County pursued its signage program unabated. The environmental plaintiffs claim that Kane County placed 268 signs on BLM lands, including 103 inside Grand Staircase-Escalante, at least sixty-three of
On August 22, 2005, the Kane County Board of Commissioners passed Ordinance 2005-03 (the “Ordinance”) to regulate OHV use on county Class B and Class D roads.
c
Shortly after passage of the Ordinance, the environmental plaintiffs filed suit in United States District Court for the District of Utah on October 13, 2005. On that date, the county signs in controversy were still posted. They sought declarations that the Ordinance and Kane County’s signage program are preempted because they conflict with federal management schemes. They also requested an injunction prohibiting Kane County from adopting an ordinance or otherwise opening roads that are closed to OHV use under federal law and ordering the County to remove its signs from all such routes.
Kane County moved to dismiss under several sections of Federal Rule of Civil Procedure 12(b), arguing lack of subject matter jurisdiction, failure to state a claim, and failure to join necessary and indispensable parties (the State of Utah and the United States). The district court rejected each of these arguments, agreeing with the environmental plaintiffs that it “need not make any final determination regarding the existence of any R.S. 2477 right-of-way in order to grant TWS’s requested relief.” Following this order, Kane County filed a Rule 59(e) motion to alter or amend the court’s order denying dismissal, seeking permission to prove in this case that it possesses R.S. 2477 rights of way. The Rule 59(e) motion was de
In the same order in which it denied Kane County’s motion to dismiss, the court granted the environmental plaintiffs’ motion to amend their complaint. The amended complaint added an Endangered Species Act claim against BLM and the U.S. Fish and Wildlife Service. These federal defendants later moved successfully to dismiss the Endangered Species Act claim, and it is not at issue in this appeal.
On December 11, 2006, Kane County rescinded Ordinance 2005-03, indicating in the minutes of its meeting that it did so to “secure the most successful legal resolution to current federal roads litigation.” County Commissioner Mark W. Habbeshaw testified that he did not intend to reenact a similar ordinance “right away.” (Emphasis added). After the Ordinance was rescinded, Kane County removed all decals permitting OHV use from its road signs. Some of the signs were removed entirely.
On May 1, 2007, Kane County filed a second motion to dismiss, contending that plaintiffs’ claims had been mooted by rescission of the Ordinance and removal of the OHV decals. Kane County also repeated its challenge to the environmental plaintiffs’ standing. While this motion was pending, Kane County moved to strike portions of the declaration of Wayne Y. Hoskisson, which had been attached as an exhibit to plaintiffs’ opposition to the motion to dismiss. Kane County alleged that Hoskisson testified to matters not within his personal knowledge and proffered hearsay. The County also moved to strike as hearsay a newspaper article attached to the same opposition.
At a hearing on the motions to dismiss, the court indicated that the materials subject to the motion to strike were unnecessary and thus it would disregard them and deny the motion to strike as moot. It then denied Kane County’s motion to dismiss, indicating:
Kane County failed to meet its burden of demonstrating that TWS’s claims concerning Kane County Ordinance 2005-03 were moot, given statements and deposition testimony by Kane County commissioners concerning the enactment of off-highway vehicle legislation. Kane County failed to show that “subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
On November 14, 2007, the environmental plaintiffs moved for summary judgment on their two original preemption claims. Among other undisputed facts, they relied on Kane County’s admission that “no court or federal agency has issued a final, binding determination that Kane County possesses R.S. 2477 rights-of-way for any Class B or Class D road” in the relevant areas (excepting Skutumpah Road). The environmental plaintiffs relied on the County’s 1996 map, which includes several roads not depicted on Map 2 of the Monument Plan. As to Moquith Mountain WSA and Paria Canyon, the environmental plaintiffs showed that there are roads displayed as county roads on the County’s 1996 Map that are not designated as open by the federal government, relying on the uncontroverted deposition testimony of Kane County’s Transportation System Director.
Kane County opposed summary judgment on various grounds. It also sought a continuance to conduct discovery under Federal Rule of Civil Procedure 56(f) and moved to strike as hearsay two letters submitted by plaintiffs in support of summary judgment. Just before a scheduled hearing on plaintiffs’ motion, Kane County filed a competing motion for partial sum
In May 2008, the district court granted summary judgment in favor of the environmental plaintiffs. It denied Kane County’s Rule 56(f) motion for additional discovery
need not rest on a determination regarding the veracity of any [R.S. 2477] claims the County might have. Rather, the Court need only recognize that the presumption on federal land is that ownership and management authority lies with the federal government and that any adverse claimant, like the County here perhaps, is not entitled to win title or exercise unilateral management authority until it successfully has carried its burden of proof in a court of law.
The court rejected Kane County’s position that the Skutumpah Road had been held to be a R.S. 2477 right of way in federal court, and it determined that the Ordinance and signage program conflicted with several federal statutes, regulations, and land management plans. Accordingly, the court declared that the Ordinance and Kane County’s signs in Grand Stairease-Escalante and Moquith Mountain WSA violated the Supremacy Clause. It ordered the County to remove “those County road signs that conflict with federal land management plans or federal law as identified in this Order” and enjoined the County from adopting ordinances, posting signs, or purporting to manage or open any route closed to vehicle use by governing federal law “unless and until Kane County proves in a court of law that it possesses a right-of-way to any such route.”
At the same time, the court denied Kane County’s motion for partial summary judgment, determining that the current lawsuit was not a proper avenue to resolve such issues because the federal government was not a party, the environmental plaintiffs do not claim title to the rights of way, and because Kane County had not filed a claim under the Quiet Title Act. Final judgment was entered a few days later, and Kane County timely appealed.
II
On appeal, Kane County argues that the environmental plaintiffs lack standing. Specifically, the County contends that the environmental plaintiffs’ “attempt to use the Supremacy Clause as its cause of action is the necessary product of its lack of a case or controversy with Kane County.”
A
Absent a plaintiff with constitutional standing, federal courts lack jurisdiction. See Summers v. Earth Island Inst., — U.S.-,
TWS and SUWA assert standing to sue on behalf of their members. “An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Id. We assess standing “as of the time the action is brought,” and our review is de novo. Nova Health Sys. v. Gandy,
In the environmental context, a plaintiff who has repeatedly visited a particular site, has imminent plans to do so again, and whose interests are harmed by a defendant’s conduct has suffered injury in fact. See Summers,
B
The environmental plaintiffs submitted detailed declarations from their members to the district court, one from Jill N. Ozarski and another from Liz Thomas, which establish associational standing. Both declarants allege harms to their health, recreational, scientific, spiritual, educational, aesthetic, and other interests. Ozarski’s declares:
I use and enjoy the natural resources on BLM lands and NPS lands for many health, recreational, scientific, spiritual, educational, aesthetic, and other purposes and have used and enjoyed for these same purposes, the lands that make up [Grand Staircase-Escalante], other BLM lands, and Bryce Canyon and Zion National Park lands within Kane County. I enjoy hiking with my friends, camping, birdwatching, discovering fossils and archaeology, study, contemplation, solitude, photography, and other activities on these public lands. I have visited public lands in Kane County, and particularly lands within the Monument, at least four times per year for multiple days since 2003, and intend to return as often as possible, and certainly within the next six months.
Even more specifically, Ozarski avers that “[s]ome of the places where I have recreated include areas adjacent to the Hole-in-the-Rock road, Hackberry Canyon, Buckskin Gulch, Paria Canyon and the White House Campground, and the Skutumpah Road area.”
As to OHV usage, Ozarski states that she “seek[s] out and prefer[s] to use those federal public land[s] that are more wild; in other words, those lands that are not burdened by [OHV] use.” With respect to the signage program and the Ordinance, Ozarski declares that her
*1211 health, recreational, scientific, spiritual, educational, aesthetic, informational, and other interests are directly affected and harmed by Kane County’s actions in erecting signs and adopting an ordinance that attempts to override parts of the Monument Plan and other federal plans by opening to off-road vehicles routes and areas closed to such use under applicable federal management plans.
She states that she is “less likely to return to areas where [OHV] use is likely to occur, given Kane County’s actions purporting to open certain areas to [OHVs].” Thomas’ declaration is similar.
Under both Summers and Morton, these declarations are more than sufficient to establish injury in fact. Both declarants aver that they have visited specific sites near contested roadways on several occasions and plan to do so again within the year. Both also allege that OHV use near those sites will negatively impact their recreational and aesthetic interests. These declarations contain none of the pleading deficiencies identified in Summers. See
In advancing its peculiar and particularized view of standing, the dissent strenuously argues that the environmental groups lack standing because they did not suffer harm to a “legally protected interest” conferred by state or federal law. (Dissenting Op. 1229 (“We may sympathize with the plaintiffs’ desire to enjoy southern Utah’s canyon country without the intrusion of vehicles, but the plaintiffs can point to no law giving them a legally protected interest in the matter.”).) Despite the dissent’s apparent desire to hold that only ownership of land or a statutorily conferred right could directly or derivatively confer standing, and its desire to actively rollback standing jurisprudence, this court has previously explained that the term “legally protected interest” refers to a “judicially cognizable interest.” In re Special Grand Jury 89-2,
The dissent argues that equating “legally protected” with “judicially cognizable” renders us guilty of “judicial self-empowerment.” (Dissenting Op. 1231.) Yet it is the dissent that seeks to impose a sea change on firmly-established standing jurisprudence. The Supreme Court has used the two phrases interchangeably since “legally protected” was introduced in Lujan. Cf. Judicial Watch, Inc. v. United States Senate,
Rather than requiring a specific statutory or common law right, as the dissent suggests,
In the present action, members of the environmental group plaintiffs allege sufficient injury to their recreational, aesthetic, and other interests. As discussed above, the Supreme Court has repeatedly recognized such interests as deserving of legal protection, and this court has held the same. See San Juan County v. United States,
Based on this well-established precedent, we conclude that the environmental plaintiffs’ interests in this case are “of sufficient moment to justify judicial intervention” and to satisfy Article Ill’s injury in fact requirement. In re Special Grand Jury 89-2,
Kane County counters that the only injuries alleged by the environmental plaintiffs are those of the United States. We disagree. The environmental groups have shown that their members’ legally protected interests in enjoying the areas at issue are harmed by unlawful OHV use. When an alleged injury “affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice.” Id. at 1149 (citation omitted).
The Ozarski and Thomas declarations also satisfy the causation requirement. The environmental plaintiffs allege that they have been harmed as a result of Kane County’s preempted actions. Whether those actions actually conflict with federal law lies at the heart of the
Kane County contends that the disputed routes were open to OHV use prior to passage of the Ordinance and its sign posting, and thus neither action caused any injuries related to OHV use. Yet we must assume for standing purposes that the roads in question were closed under federal authority. By passing the Ordinance and replacing federal signs with county signs that permit OHV use, Kane County opened the disputed roads to OHV travel. We are satisfied that there is a “substantial likelihood” that these actions increased — and if left uncorrected, will increase — OHV usage on the roads, which in turn harms the recreational and other interests of the environmental plaintiffs’ members.
Regarding redressability, we agree with the environmental plaintiffs that an order declaring the Ordinance unconstitutional and an injunction requiring Kane County to remove its signs and prohibiting it from taking similar actions in the future would “likely” redress the alleged injury. See Laidlaw Envtl. Servs.,
This is not a case in which an outcome favorable to plaintiffs would afford relief only “through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of [a court’s] power,” but rather one in which the court could afford direct relief against the County, which will in turn likely redress the injury. See Nova Health Sys.,
C
Based on the foregoing analysis, we conclude that individual members of the environmental organizations have standing to pursue these preemption claims. Environmental plaintiffs satisfy
Ill
A
In its second jurisdictional challenge, Kane County argues that its rescission of the Ordinance and removal of OHV decals from its road signs mooted this case. We take the district court’s view of the matter.
We review questions of mootness de novo. Chihuahuan Grasslands Alliance v. Kempthorne,
“Generally, repeal of a challenged statute causes a case to become moot because it extinguishes the plaintiffs legally cognizable interest in the outcome, rendering any remedial action by the court ineffectual.” Kan. Judicial Review,
Kane County falls well short of meeting that burden. When it rescinded the Ordinance, the Kane County Commission expressly indicated that it was attempting to “secure the most successful legal resolution to current federal roads litigation.” In a press release included in the record, the County Commission stated that rescission was “deemed necessary pending the resolution of certain legal issues” and that litigating the validity of the Ordinance and ownership of the alleged rights of way “is too big a bite of the apple
In addition to rescission, Kane County relies on its removal of OHV decals — and in some instances, entire signs— as a basis for mootness. According to the County, “[t]here is no longer any local government authorization for OHVs to travel ‘federal land’ in Kane County.” However, there is no dispute that several county road signs remained on disputed routes at the time of judgment. The presence of these signs indicates to the public that the roads are open to vehicle traffic. Accordingly, the alleged conflict between Kane County’s actions and federal law continues. As with respect to redressability, we determine that removal of the remaining county road signs would likely cause at least one person to refrain from driving OHVs on the disputed routes. Because enforcement of the district court’s order will afford plaintiffs effective relief, this case is not constitutionally moot. See Kan. Judicial Review,
B
Even if this case is not constitutionally moot, Kane County argues that it is prudentially moot. Under the prudential mootness doctrine, a court may dismiss a case that remains constitutionally viable if “prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant.” S. Utah Wilderness Alliance v. Smith,
Because the central inquiries are the same, we need not retread our earlier analysis at length. The record indicates that there exists a reasonable probability the Ordinance will be reenacted. For that reason, we cannot say that “it [is] highly unlikely that the actions in question will be repeated.” Id. We are unpersuaded that we should discretionarily refrain from deciding this case, properly before us, in which effective redress can be afforded.
IV
A
Kane County claims further that the environmental plaintiffs lack a cause of action. Although the County styles this contention as a question of standing, it is mistaken in such framing. The existence of a private right of action is a separate and distinct issue. See Dohaish,
Kane County relies on Day v. Bond,
Because of the unique injury alleged in Day, this authority offers little guidance. The environmental plaintiffs do not allege a statutory injury. Instead they claim harm to their recreational and other interests caused by unlawful OHV use. Qwest Corp. v. City of Santa Fe,
The dissent attempts to distinguish Qwest and Shaw on the ground that the plaintiffs in those cases were “raising preemption as a defense to the enforcement against themselves of state regulations that conflicted with federal law.” (Dissenting Op. 1233.) But this is a distinction without a difference. In Qwest, we held that a “party may bring a claim under the Supremacy Clause that a local enactment is preempted even if the federal law at issue does not create a private right of action.”
B
Related to their cause of action argument, Kane County contends that the environmental plaintiffs lack prudential standing because: (1) they are asserting the legal rights of the United States; (2) their claims raise generalized grievances; and (3) their claims fall outside the zone of interest protected by the Supremacy Clause. We reject each assertion.
Kane County’s zone of interest argument fares no better. If the zone of interest test applies in a preemption case,
Y
Kane County also brings to us the contention that both the State of Utah and the United States are necessary and indispensable parties to this litigation, and that therefore the district court erred in denying its motions to dismiss. A district court’s Rule 19 determinations are reviewed for abuse of discretion, with any underlying legal conclusions reviewed de novo. Symes v. Harris,
The Rule 19 analysis proceeds in two steps: (1) necessity; and (2) indispensability. Only necessary parties can be indispensable parties. See Fed.R.Civ.P. 19(b); Davis ex rel. Davis v. United States,
(A) in that person’s absence, the court cannot accord complete relief among existing parties; or ... (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: (i) as a practical matter*1218 impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
Fed.R.Civ.P. 19(a)(1).
Kane County does not advance an argument under Rule 19(a)(1)(A), and we see no basis for it to do so. Because Kane County did not present any cross-or counterclaims, only the environmental plaintiffs were seeking relief from the district court. That relief was fully afforded by the district court’s injunction. Thus, the necessity determination turns on whether either government “claims an interest relating to the subject of the action” and satisfies the remainder of 19(a)(1)(B). Even persons with an undisputed interest in the outcome of the action may not be necessary if their interests are “virtually identical” to those of an already present party. Kansas v. United States,
We agree with the district court’s conclusion that the State of Utah is not a necessary party. Kane County argues that Utah’s interests were necessarily implicated because the district court decided ownership of the disputed roads. That is a patent misreading of the district court’s decisions; the court took great pains to clarify that it was not passing on the validity of any alleged R.S. 2477 rights of way. Moreover, Utah’s interest in controlling disputed roadways is virtually identical to that of Kane County. That the State’s interests might be slightly broader in geographic scope is immaterial because this case concerns only those routes within Kane County’s borders.
Kane County argues that “the United State [sic] is a necessary party in a case that would decide whether Kane County owns public highway rights-of-way on federal land.” That seems a sensible proposition, but it does not apply here. The district court dearly and repeatedly noted that it was not passing on the validity of any R.S. 2477 rights. In its order denying Kane County’s first motion to dismiss, the court agreed with the environmental plaintiffs that it “need not make any final determination regarding the existence of any R.S. 2477 right-of-way in order to grant TWS’s requested relief.” In its order granting summary judgment in favor of the environmental plaintiffs, the court again explained that it “does not need to make an R.S. 2477 determination to decide the preemption issue.” The ordered injunction applies only “unless and until Kane County proves in a court of law that it possesses a right-of-way to” the disputed routes. Finally, in its order denying Kane County’s motion to stay the injunction, the court repeated that its ruling only enjoined “County action that purports to manage or open to vehicle use any route or area dosed to such use by governing federal land management plan or federal law.” Thus, the fatal flaw in Kane County’s argument, and in the dissent’s suggestion, that the United States is necessary is that this is not a case “that would decide whether Kane County owns ... rights-of-way on federal land.”
Further, the district court was correct to reject Kane County’s attempt to establish
As a limited waiver of sovereign immunity, the Quiet Title Act is the sole avenue by which Kane County can seek to prove the existence of its R.S. 2477 rights in court.
VI
We are now able to turn to the merits of the district court’s preemption ruling. At the core of this case is a dispute over what it means to manage lands “subject to valid existing rights” in the absence of an adjudication of such rights. Resolution pivots around who moves first. In other words, is county regulation of alleged but unproven R.S. 2477 rights preempted when the local regulation conflicts with the federal, or are counties free to regulate such routes prior to adjudication? That is the question that Kane County raises on appeal.
A
In SUWA v. BLM, we held that “the burden of proof lies on those parties seeking to enforce rights-of-way against the federal government.”
The district court relied on the allocation of this burden in determining that the Ordinance and Kane County’s signage program were preempted. Although it acknowledged that each of the relevant management regimes may not encroach upon “valid existing rights,” the court concluded — based primarily on Kane County’s discovery admissions — that R.S. 2477 rights of way had not yet been established in a court of law. Based on the “presumption on federal land ... that ownership and management authority lies with the federal government,”
We agree with the district court’s conclusion. Kane County’s only substantive defense is that it possesses valid R.S. 2477 rights of way over the routes in question. Under that theory, there can be no preemption because the federal management regimes are explicitly made subject to val
Kane County contends that this allocation contravenes the general rule that a party claiming preemption bears the burden of proof. See Mount Olivet Cemetery Ass’n v. Salt Lake City,
We considered where to place such a burden under an analogous scheme in Qwest Corp. In that case, Qwest claimed that a Santa Fe ordinance regulating telecommunications provider access to city rights of way was preempted by 47 U.S.C. § 253. Qwest Corp.,
Just as in Qwest Corp., the plaintiffs in this case bore the burden of proving a conflict between federal and local regulations. Once they did so, defendants bore the burden of demonstrating that their actions fell within a limited carve-out to the preempting federal provisions. Under this sensible apportionment of the burdens of proof, Kane County was required to prove that its alleged R.S. 2477 rights of way had been adjudicated as “valid existing rights.”
Attempting to meet this burden, Kane County simply reasserts that its R.S. 2477 rights are valid. It focuses on our statement in SUWA v. BLM that “the establishment of R.S. 2477 rights of way required no administrative formalities: no entry, no application, no license, no patent, and no deed on the federal side; no formal act of public acceptance on the part of the states or localities in whom the right was vested.”
Similarly, the dissent’s contention that the Ordinance and the Monument Plan “neatly dovetail,” (Dissenting Op. 1235.), ignores the facts of this case. Because of the unique nature of the Ordinance, some factual background is necessary to understand its scope. It purported to give Kane County authority to adopt a map or “post signs designating lands, trails, streets, or highways open to OHV use.” Accordingly, we must consider the actual signs in determining which roads are covered by the Ordinance. It is undisputed that Kane County posted signs on roads in areas designated by federal regulations as closed to vehicle traffic. Only by improperly viewing the Ordinance in a vacuum can the dissent claim it does not conflict with federal law.
The dissent’s second merits contention suffers the same defect. In many instances, we would not say that a less restrictive state enactment was preempted by a more restrictive federal regime. But one must bear in mind that Kane County did not simply “make OHV travel permissible as far as the county is concerned.” (Dissenting Op. 1238.) Rather, Kane County removed federal signs that forbid OHV use and replaced them with County signs permitting OHV use pursuant to the Ordinance. The suggestion that implementation of the Ordinance was not in conflict with federal law departs from reality.
B
Having affirmed the district court’s pivotal holding, there remains yet another question, whether federal law conflicts with the Ordinance and Kane County’s signage program.
Four different management regimes govern the four distinct areas at issue in this appeal. We hold that OHV use was forbidden on each parcel.
1
Grand Staircase-Esealante was established by presidential proclamation. Proclamation No. 6920, 61 Fed.Reg. 50,223 (Sept. 18, 1996). In establishing the Monument, President Clinton explained:
[T]his unspoiled natural area remains a frontier, a quality that greatly enhances the monument’s value for scientific study. The monument has a long and dignified human history: it is a place where one can see how nature shapes human endeavors in the American West, where distance and aridity have been pitted against our dreams and courage. The monument presents exemplary opportunities for geologists, paleontologists, archeologists, historians, and biologists.
... Remoteness, limited travel corridors and low visitation have all helped to preserve intact the monument’s important ecological values. The blending of warm and cold desert floras, along with the high number of endemic species, place this area in the heart of perhaps the richest floristie region in the Inter-mountain West.
Id. at 50,223-24.
Included in the Monument Plan that governs land use in Grand Staircase-Esealante is a map known as Map 2. Map 2 includes all roads open to traffic within the Monument. Monument Plan 46. Unlisted roads are closed, “subject to valid existing rights.” Id. Clarifying that language, the Monument Plan explains:
Some government entities may have a valid existing right to an access route under Revised Statutes (R.S.) 2477, Act of June 26, 1866, ch. 262, § 8, 14 Stat. 251[codifled as amended at 43 U.S.C. § 932 until repealed in 1976 by the Federal Land Policy and Management Act of 1976 (FLPMA), Public Law 94-579, Section 706(a), Stat. 2744, 2793 (1976)], which granted “[the right-of-way for the construction of highways over public lands, not reserved for public uses.]” As described in the United States Department of Interior, Report to Congress on R.S. 2477 (June 1993), claims of rights-of-ways under R.S. 2477 are contentious and complicated issues, which have resulted in extensive litigation. See e.g., Sierra Club v. Hodel,848 F.2d 1068 (10th Cir.1988); Southern Utah Wilderness Alliance v. Bureau of Land Management, Consolidated Case No. 2:96-CV-836-S (D. Utah, filed Oct. 3, 1996, pending). It is unknown whether any R.S. 2M7 claims would be asserted in the Monument which are inconsistent with the transportation decisions made in the Approved Plan or whether any of those R.S. 2M7 claims would be determined to be valid. To the extent inconsistent claims are made, the validity of those claims would have to be determined. If claims are determined*1224 to be valid, R.S. %I77 highways, the Approved Plan will respect those as valid existing rights. Otherwise, the transportation system described in the Approved Plan will be the one administered in the Monument.
Id. at 46 n. 1 (emphasis added, brackets in original). “Beyond the routes shown on Map 2, the BLM will work with any individual operating within the Monument under existing permits or authorizations to document where access must continue in order to allow operation of a current permit or authorization.” Id. at 48. The Monument Plan further specifies that
[njothing in this Plan alters in any way any legal rights the Counties of Garfield and Kane or the State of Utah has to assert and protect R.S. 2477 rights, and to challenge in Federal court or other appropriate venue, any BLM road closures that they believe are inconsistent with their rights.
Id. at 46 n. I.
Based on the plain language of the Monument Plan, it is clear that until an R.S. 2477 right of way is adjudicated, Map 2 governs.
2
Established by statute in 1972, Glen Canyon NRA spans more than 1.25 million acres in northern Arizona and southeastern Utah. § 3(a),
In arguing that OHV use is permitted in Glen Canyon NRA, Kane County relies on a federal regulation which interstitially applies state law to roads within the recreation area. See 36 C.F.R. § 4.2(a) (“Unless specifically addressed by regulations in this chapter, traffic and the use of vehicles within a park area are governed by State law.”). Kane County further relies on a memorandum authored by BLM Acting Regional Solicitor of the Intermountain Region, Lawrence J. Jensen (“the Jensen memorandum”). We agree with Kane County that the Jensen memorandum is entitled to Skidmore deference. See Christensen v. Harris County,
The Jensen memorandum states that 36 C.F.R. § 4.10 “does not ‘specifically address’ the use of [OHVs] on park roads for purposes of section 4.2, and that state law therefore governs such use.” However, it cabins that determination to “those roads for which the county is ‘the controlling authority’ under state law.” It further notes that under Utah law, the question of whether a county is the “controlling authority” may depend on the existence of valid R.S. 2477 rights of way. In this case, Kane County’s power to regulate OHV use within Glen Canyon NRA turns on the existence of valid R.S. 2477 rights. As discussed above, see Part VI.A, supra, Kane County may not unilaterally manage alleged R.S. 2477 routes until it first proves it has such rights and is not expanding the scope of use in a court of law. It is undisputed that such rights have not been established within Glen Canyon NRA, thus neither 36 C.F.R. § 4.2(a) nor the Jensen memorandum confers management authority upon Kane County.
Because there was no special federal regulation allowing OHV use in Glen Canyon NRA when this case was filed,
3
Similar principles govern our analysis of preemption in Moquith Mountain WSA. Moquith Mountain was designated a wilderness study area in 1980. Utah; Final Wilderness Inventory Decision, 45 Fed.Reg. 75,602, 76,602-03 (Nov. 14, 1980). It must be managed “so as not to impair the suitability of such areas for preservation as wilderness.” 43 U.S.C. § 1782(c). In 2000, BLM made permanent its closure to OHV use of 95% of the roads in Moquith Mountain WSA. Bureau of Land Mgmt., U.S. Dep’t of the Interior, Vermilion Management Framework Plan
Although Moquith Mountain WSA must be managed pursuant to FLPMA’s “subject to valid existing rights” requirement, see 43 U.S.C. § 1782(c); § 701(h),
4
Paria Canyon, a designated wilderness area, is essentially closed to motor vehicle use. 16 U.S.C. § 1133 (closing wilderness areas to motor vehicle use “except as necessary to meet minimum requirements for the administration of the area”); Arizona Wilderness Act of 1984, § 301(a)(7) (designating the wilderness area). That closure too is “subject to valid existing rights,” § 302(a),
VII
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Notes
. The protestations of the dissent notwithstanding, this case does not involve county use or management of R.S. 2477 rights of way that do not conflict with a federal management regime on federal public lands. The dissent is correct in its statement that R.S. 2477 rights of way are in consistent use throughout the West and nothing herein purports to speak to or address the right to the continued existence and use of such roads as to which a conflict has not arisen.
. The environmental plaintiffs initially asserted claims regarding Trail Canyon, Hog Canyon, Parunuweap Canyon, and Orderville Canyon Wilderness Study Areas (“WSAs”), Bryce Canyon National Park, and Zion National Park. These claims were withdrawn below and are not at issue on appeal.
. The dissent ignores the history leading up to this litigation and mischaracterizes the status quo as an oasis of peace in which the environmental plaintiffs walked in and kicked up a dust storm of controversy in order disturb the stasis of tranquility and interject the federal courts.
. Class B roads are those on which the State of Utah has paid for improvements. Utah Code Ann. § 72-3-103. Class D roads include "any road, way, or other land surface route that has been or is established by use or constructed and has been maintained to provide for usage by the public for vehicles with four or more wheels that is not a class A, class B, or class C road.” § 72-3-105(1).
. Because a map was not adopted as part of the Ordinance, the parties quarreled over which map accurately depicted the disputed roadways for much of the time the case was pending before the district court. Kane County argued that 1978 maps were "irrelevant” but that the 1996 Map contained all roads with numbered signs. TWS eventually agreed that the district court should tailor its relief based on the 1996 Map.
. Kane County did not appeal this denial.
. The dissent’s suggestion would appear better-suited to the right of action inquiry. As we have previously held, the standing and right of action inquiries are distinct. See Dohaish v. Tooley,
. Kane County repeatedly cites Norton v. Southern Utah Wilderness Alliance,
. Statutes and ordinances are treated equally under this rule. See City of Mesquite v. Aladdin’s Castle, Inc.,
. In so holding, we are in agreement with a majority of the circuits. See e.g., Indep. Living Ctr. of S. Cal., Inc. v. Shewry,
. More than twenty years ago, we assumed without deciding that the zone of interest test applied in a preemption case. See ANR Pipeline Co. v. Corp. Comm’n of Okla.,
Although applicability of the zone of interest test was decided below and briefed on appeal, we need not decide the issue here. To the extent the zone of interest test applies, the relevant zone of interest is that of the Supremacy Clause and not of the allegedly preempting federal statute. See ANR Pipeline,
. Claiming that "the district court was wrong to hold that the lack of prior judicial adjudication means that a county right-of-way is not a 'valid existing right,’ ” the dissent makes the same mistake. (Dissenting Op. 1236-37.) As explained above, the district court went to great lengths to make clear it was not determining the validity of the Coun-
ty’s claims to R.S. 2477 rights. It simply held that Kane County must prove the existence and scope of such rights before exercising them unilaterally.
Interestingly, the dissent recognizes the County's burden. (Dissenting Op. 1237 ("This does not mean, of course, that mere
. It is unclear whether Kane County is seeking to challenge this ruling in its Opening Brief. It notes that it attempted to prove ownership of rights of way over Skutumpah and Windmill Roads but advances no substantive argument on this point. We give Kane County the benefit of the doubt and address this argument despite potentially inadequate briefing.
. We do not foreclose any non-judicial avenues such as seeking congressional recognition of a FLPMA right of way or reaching agreement with the BLM as to the existence of certain rights.
. As it does itself, the dissent argues that Kane County "loudly and repeatedly sought an opportunity to prove its claims in district court, but was rebuffed.” (Dissenting Op. 1239.) Yet Kane County never advanced a Quiet Title Act claim below.
. Kane County does not challenge the district court’s denial of its Rule 56(f) motion or the court’s denial of its motion for partial summary judgment.
. The dissent explicitly acknowledges this presumption, stating: “The federal government owns the land, and has the presumptive righl to regulate activities that takes place on it.” (Dissenting Op. 1237.)
. In attempting to set up a straw man, Kane County dramatically overstates the scope of the district court’s ruling. It asserts that the district court "eject[ed] the government from its historic public highway rights-of-way and lawful governmental authority on roughly 2 million acres of land.” (The dissent resorts to similar rhetoric, claiming that the district court’s decision and the majority opinion
. The dissent also argues that our decision conflicts with Sierra Club v. Hodel,
. Kane County does not clearly contest the district court's conclusion that various federal statutes and regulations conflict with the Ordinance, other than to argue that such rules do not apply to unproven R.S. 2477 rights. Out of an abundance of caution, we nevertheless consider this issue.
. We recently held that BLM was not required to determine the validity of R.S. 2477 rights of way prior to promulgating the Monument Plan. Kane County v. Salazar,
. While we acknowledge that R.S. 2477 rights may well have vested without procedural formalities, SUWA v. BLM,
. Although Kane County asserted below that Skutumpah road had been judicially determined a valid R.S. 2477 right, the district court did not agree and found that no R.S. 2477 rights on the land in question had yet been proven. We agree with the district court that Skutumpah road was not adjudicated in SUWA v. BLM. In that case, the district court relied on a BLM determination that Skutumpah Road was indeed an R.S. 2477 right of way.
Kane County seizes on the final line of our opinion, in which we remanded to the district court to determine "whether Kane County exceeded the scope of its right of way with respect to the Skutumpah Road.” SUWA v. BLM, 425 F.3d [735, ]788. But this single line cannot be twisted into a final adjudication. It simply reflects the fact that BLM had taken the position that the Skutumpah Road was an R.S. 2477 right of way.
. Although there were no special regulations when this litigation commenced, some portions of Glen Canyon NRA are now open to OHV use. Bureau of Land Mgmt., U.S. Dep't of the Interior, Record of Decision and Approved Resource Management Plan, Map 15 (2008), available at http://www.blm.gov/ut/st/ en/fo/richfield/planning/rmp/rod_approved_ rmp.html. Because Kane County does not rely on this newly adopted management plan in its briefing, and because there is no evidence in the record regarding the overlap between the 1996 Map and the new plan, we have no basis to conclude that the new plan has mooted any portion of this case. See Kan. Judicial Review,
. Kane County also contests on appeal the denial of its motion to strike certain exhibits. We review the denial of the motion to strike for abuse of discretion. See United States v. Fuentez,
In the section of its opening brief challenging denial of the motion to strike, Kane County asserts that the district court also erred in denying its request for attorneys' fees. No further explanation of that statement is provided, and we thus do not consider its merits. See Habecker,
Dissenting Opinion
dissenting.
A great many of the roads of the West, including virtually all the roads that provide visitors access to the Grand Staircase-Escalante National Monument in southern Utah [hereinafter “the Monument”], are based upon rights-of-way established under the authority of a congressional statute passed in 1866, popularly called “R.S. 2477.” When the plaintiffs’ members testify that they enjoy recreating in “areas adjacent to the Hole-in-the Rock road, Hackberry Canyon, Buckskin Gulch, Paria Canyon and the White House Campground,” Maj. Op. 1210, they travel to those places over R.S. 2477 roads. Kane County and its counterparts maintain these roads to keep them safe and passable; the Counties set and enforce speed limits and other rules of the road; they provide search and rescue services to visitors in trouble; all this is done through the exercise of rights obtained under R.S. 2477.
None of the R.S. 2477 roads in Kane County, and precious few in the rest of Utah or the West, have ever been proven or established in court. That has never been necessary. For more than 150 years, R.S. 2477 routes have been regarded as vested property rights, based solely upon continuous public use across unreserved
When the Monument was created, President Clinton’s Executive Order expressly made federal land management “subject to valid existing rights,” and regulations under the Federal Land Policy Management Act (“FLPMA”) prohibit any diminishment of the rights-of-way granted by R.S. 2477. 43 C.F.R. § § 2801.4, 2801.6. The Monument Plan itself contains a section entitled “Transportation and Access,” which designates a route system for the Monument in the form of a transportation map. The Plan states: “Any route not shown on Map 2 is considered closed upon approval of this Plan, subject to valid existing rights.” Grand Staircase-Esealante National Monument Management Plan at 46, available at http://www.blm.gov/ut/st/en/fo/grand_ staircase-escalante/planning/monumenK management.html (last visited Aug. 19, 2009) (emphasis added). Neither the Executive Order nor the Monument Plan thus purports to limit or extinguish valid existing R.S. 2477 rights; rather, federal land management within the Monument is explicitly “subject to” those existing rights.
This case involves Kane County Ordinance 2005-03, repealed in 2007,
The case also involves two disputes over signage. The facts are murky and were not adjudicated below, but apparently on one occasion in 2003, roughly two years before this lawsuit was filed, Kane County officials removed signs that had been placed along putative county roads by the federal land managers. This appears to have been some sort of protest. It has not been repeated. In addition, in 2005 the County erected a number of road signs within the Monument, some of which contained decals indicating that the roads were open to off-road-vehicle use. It is unclear whether the signs were new or were merely replacements for longstanding county road signs. According to evidence submitted by the plaintiffs, the BLM Director wrote a letter to the County objecting to these signs, App. 425-26, 1702-04, and the County removed first the decals and later the signs.
Although it is the federal government’s property rights and regulatory interests that allegedly are implicated by the County’s actions, the federal government has not initiated litigation. Instead, two environmental organizations, whose members use and enjoy the affected lands but have no ownership rights with respect to them, filed suit against Kane County, seeking an injunction against the repealed Ordinance and against any repetition of the County’s actions with respect to signs, claiming that the County Ordinance and the County’s posting and removal of signs were preempted by federal law and hence unconstitutional under the Supremacy Clause. The County defended on the ground that federal law respects and recognizes R.S. 2477 rights-of-way, and that no conflict with federal law could be shown without evidence that some or all of its road claims are invalid.
Without considering any evidence whatsoever regarding the existence or validity of any of Kane County’s road claims, the district court denied that the County “currently has valid existing rights under R.S. 2477 for the areas in question.” Dist. Ct. Op. 2. Why? “[Bjecause the County has yet to establish the validity of those rights in a court of law.” Id. In other words, the County has no “valid existing rights” within the meaning of FLPMA, the Executive Order, and the Monument Plan unless it has obtained a legal judgment in court. The panel majority now affirms this remarkable holding. In place of our prior holdings that R.S. 2477 routes could be “established” and “legal title” pass with “no procedural formalities,” the majority now concludes that the formality of court adjudication is a prerequisite to the exercise of rights under R.S. 2477. This conclusion flies in the face of this court’s holding in SUWA, as well as with the decades of jurisprudence on which that decision rested.
The district court’s injunction forbids Kane County to exercise its R.S. 2477 rights to manage vehicle use or maintain roads within the challenged areas, but only with respect to routes or areas “closed to such use by governing federal land management plan or federal law.” The injunction reads as follows:
The court further ENJOINS the County and ORDERS that Kane County shall not adopt ordinances, post signs, or otherwise purport to manage or open to vehicle use any route or area closed to such use by governing federal land management plan or federal law. Further, Kane County shall take no other action to invite or encourage vehicle use on any route or area closed to such use by governing federal land management plan or federal law. Kane County is enjoined from any action described above relating to any route unless and*1229 until Kane County proves in a court of law that it possesses a right-of-way to any such route and establishes the proper scope of such right-of-way in a court of law.
Dist. Ct. Op. 33.
The direct effect of the injunction will thus be felt only on routes within the Monument and other challenged areas that are closed to vehicle use (or to a subset of vehicle use, such as OHVs) as a matter of federal policy.
To make matters worse, this holding is rendered in a case where the federal government is not even present in court, at the behest of organizations whose members have absolutely no legal right or interest in the matter in question. I therefore begin with issues of standing and cause of action, and then proceed to a discussion of the merits.
I. STANDING
To establish standing, “the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not conjectural’ or ‘hypothetical.’ ” Lujan v. Defenders of Wildlife,
Much has been made of the idea that aesthetic or environmental harm is a cognizable injury so long as the plaintiff can show that he will himself experience the effects of that harm. See Maj. Op. 1211, relying on Summers v. Earth Island Inst.,
The majority asserts that “[t]he environmental groups have shown that their members’ legally protected interests in enjoying the areas at issue are harmed by unlawful OHV use.” Maj. Op. 1212. But the majority opinion is bereft of any citation to a statute that creates any such “legally protected interests.”
The majority relies on San Juan County v. United States,
Essentially conceding that the plaintiffs have not asserted any legally protected interest in the ordinary sense of that term, the majority declares that the term “legally protected interest” means nothing more than “‘the sort of interest that courts think to be of sufficient moment to justify judicial intervention.’ ” Maj. Op. 1211— 1212, quoting In re Special Grand Jury 89-2,
At bottom, this is a real property dispute between the owner of the servient estate (the federal government) and the owner of a purported easement (the County). The two property owners have so far avoided confrontation in court and (for all we know) may be seeking a course of mutual accommodation, as was suggested in SUWA
Any interest members of The Wilderness Society have, in the peaceful enjoyment of the Monument, is purely deriva
Third-party standing limitations make imminent sense. Imagine that my next-door neighbor, who keeps his property neat and tidy, is faced with a competing claimant to the land, who is likely to allow the property to fill with weeds. I might very much hope my neighbor wins. My property values and aesthetic interests could seriously be affected. I may be impatient with my neighbor’s inclination toward compromise and apparent disinclination to go to court. But no one would say I have standing to sue in defense of my neighbor’s property rights. The Wilderness Society is in precisely that situation.
The plaintiffs’ lack of standing to bring suit on the signage issues is, if anything, even clearer. On one occasion, county officials removed BLM signs from what they regarded as county roads, and later posted signs with decals indicating that OHV use on some roads was permitted. These actions may well have violated federal trespass law. But the federal government chose not to prosecute. Appropriate federal officials registered an objection to the signs, and the County removed them, even if not promptly. The federal government did not see fit to bring any further action against the County, perhaps as a matter of comity. Private citizens have no standing to pile on with an independent federal lawsuit. See Linda R.S. v. Richard D.,
As this is essentially a property dispute that is being litigated by a party that lacks any rights in the property, we are faced with the related question of what could possibly serve as the cause of action. It is not property or contract, as The Wilderness Society has no property or contract rights in Kane County roads; it is not administrative, as The Wilderness Society has not challenged agency action; it is not statutory, as The Wilderness Society has pointed to no statute that gives it any legal right, implied or otherwise, in the roads. It instead relies simply on the Supremacy Clause and the astounding idea that any time a state action arguably conflicts with a federal law, a cause of action exists.
The plaintiffs, and now the majority, derive this principle from this court’s decision in Qwest Corp. v. City of Santa Fe,
In Qwest and Shaw, however, the plaintiffs were raising preemption as a defense to the enforcement against themselves of state regulations that conflicted with federal law. When threatened with the enforcement of a state or local law that has been preempted, the target can of course raise a preemptive defense in the form of a suit for injunctive or declaratory relief. See Shaw,
Unless Congress has expressly or impliedly granted private persons a cause of action to enforce federal law, which the plaintiffs have not even attempted to claim, there is no basis for such a suit. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran,
Thus, even apart from lack of standing, the plaintiffs assert no legal claim upon which relief may be granted. FLPMA provides no implied cause of action for private persons to enforce regulations enacted under its authority. As the Supreme Court has recently explained, “[i]n the absence of congressional intent the Judiciary’s recognition of an implied private right of action ‘necessarily extends its authority to embrace a dispute Congress has not assigned it to resolve.’ ” Stoneridge Investment Partners, LLC v. Scientific-Atlanta,
The Supremacy Clause is not an independent source of rights but a rule of priority that determines who wins when state and federal law conflict. See Andrews,
III. The Merits
The plaintiffs’ claims in this case purport to be based on preemption, but they meet none of the established tests for preemption. “Consideration of issues arising under the Supremacy Clause starts with the assumption that the historic police powers of the States are not to be superseded by Federal Act unless that is the clear and manifest purpose of Congress.” Cipollone v. Liggett Group, Inc.,
There are at least three clear reasons why the Kane County Ordinance in question is not preempted by federal law.
A. Federal Regulations Are Expressly Subject To “Valid Existing Rights,” Thus Precluding Preemption
First, in this case, far from expressly preempting state and local law, or evincing an intention to do so, Congress (in FLPMA), the President (in the Executive Order creating the Monument), and the BLM (in the Monument Plan), all expressly made federal land management “subject to valid existing rights,” with specific reference to rights-of-way established under R.S. 2477. Thus, far from preempting county R.S. 2477 rights, federal law expressly “preserved and protected” them. SUWA,
The district court’s error, now affirmed, was to disregard the structure of R.S. 2477 and to hold that a County cannot possess a “valid existing right” under R.S. 2477 unless it has obtained a judgment in its favor in court. This is in plain violation of this court’s past interpretations of the statutory scheme. Most recently, in San Juan County v. United States,
[ujnlike any other federal land statute of which we are aware, the establishment of R.S. 2477 rights of way required no administrative formalities: no entry, no application, no license, no patent, and no deed on the federal side; no formal act of public acceptance on the part of the states or localities in whom the right was vested.
In none of these cases was there any suggestion that judicial adjudication was necessary to effectuate a right-of-way. What would being “vested” and “effective” mean, if the holder cannot manage or use the right without first going to court? The majority’s notion that R.S. 2477 rights are not “valid” or “existing” in the absence of a judicial declaration thus contradicts repeated statements and holdings of this court.
Indeed, if the majority’s view were the law, a number of cases in this court would have been decided on a different basis. Most recently, in Kane County v. Salazar,
The majority responds that “creation and vestment of R.S. 2477 rights is not at issue here.” Maj. Op. 1221. “Instead, we must determine whether Kane County can exercise management authority before it proves that it has R.S. 2477 rights of way.” Id. at 1221 (emphasis in original). But
This does not mean, of course, that mere claims of rights-of-way are tantamount to title. In the event of controversy over particular claimed routes, raised by parties with standing and a cause of action, the county bears the burden of proving it has a right-of-way. SUWA
The district court went so far as to hold that a road such as the Skutumpah Road, which the federal government explicitly recognizes as an R.S. 2477 right-of-way (App. 2229, 2282; see SUWA,
B. Even Apart From The Reservation Of “Valid Existing Rights,” The County Ordinance And BLM Regulations Can Coexist
Second, even apart from federal recognition of valid existing rights — that is, even if County Ordinance 2005-3 and the Monument Plan applied their different vehicle rules to the same roads — the majority’s view is based on a misunderstanding of the relation between federal and state or local law. In our federal system of government, the various layers of government— federal, state, and local — have independent authority to determine whether and how to regulate matters that fall within their enumerated or reserved powers. States and localities do not have to pass ordinances forbidding all conduct that is forbidden under federal law. If the BLM has statutory and constitutional authority, it can prohibit OHV travel on the roads that cross the Monument, no matter what the County does. The federal government owns the land, and has the presumptive right to regulate activities that take place on it. It does not have authority to force Kane County to pass an ordinance forbidding vehicular travel on county roads, see New York v. United States,
Consider an analogy to California’s laws permitting the medical use of marijuana. Federal law prohibits this use; state law permits it. See Gonzales v. Raich,
The majority claims that passage of the County Ordinance “increased- — and if left uncorrected, will increase — OHV usage on the roads,” and that an order declaring the Ordinance unconstitutional “would likely dissuade at least one person from driving an OHV on a disputed route.” Maj. Op. 1213. But this is no different from saying that California law “encourages” the medical use of marijuana. States are free to “encourage” activity by not outlawing it, even if the federal government disapproves.
The majority notes that, unlike passage of the Ordinance itself, the County’s placement of signs on roads within the Monument would interfere with enforcement of federal law, Maj. Op. 1222, and I do not disagree. The County had no right to erect misleading signs purporting to authorize OHV travel within the Monument, over the objections of the federal land managers. Holders of an easement may manage or maintain routes in accordance with the status quo, but may not unilaterally effectuate changes. SUWA, 425 F.3d at 745. If the County persisted in posting unauthorized signs and BLM brought suit, I would likely agree with the majority that BLM is entitled to relief.
Third, even if we assume that there maybe some conflict between the County and the BLM over some disputed routes, the majority offers no reason why it is the County’s claims that must automatically yield. R.S. 2477 disputes are fact-intensive. They require the taking and evaluating of evidence regarding past patterns of public use. The majority states that “Kane County simply reasserts that its R.S. 2477 rights are valid,” Maj. Op. 1221, but this is not so. The County loudly and repeatedly sought an opportunity to prove its claims in district court, but was rebuffed. If it is true that “Kane County cannot defend a preemption suit by simply alleging the existence of R.S. 2477 rights of way,” as the majority says (Maj. Op. 1221), it should also be true that the plaintiffs cannot win a preemption suit by simply alleging the opposite. Until one side or the other proves its claims, there is no basis for judicial intervention on either side.
To be sure, the ultimate burden of proof in litigation over a disputed R.S. 2477 claim lies with the claimant. SUWA,
IV. Conclusion
Because of its lack of administrative formalities, R.S. 2477 has created the potential for conflict and uncertainty over the respective rights of the putative easement owner and the owner of the servient estate, namely, the county and the federal government. As this Court has noted in the past, these conflicts and uncertainties require both parties to act in a spirit of “mutual accommodation.” SUWA,
That is why it is so important to ensure that interest groups, which do not share the governments’ interests in comity and
. I focus here on the dispute over roads within the Monument. Kane County does not assert any interest within the Paria Canyon-Vermillion Cliffs Wilderness Area (Aplnt’s Br. 33), and the only road at issue within the Moquith Mountain Wilderness Study Area, the so-called "Windmill Road," is a special case involving access to a particular private landowner’s property. Id. at 36. The principles discussed in this dissent are equally applicable to Glen Canyon National Recreation Area. See Pub.L. No. 92-593, Sec. 3(a), 86 Stat. 1311, 1312 (1972) (establishing Glen Canyon NRA "subject to valid existing rights”).
. The Ordinance has been repealed and the County’s specific acts with respect to signage were in the past, which raises the question of mootness. I have serious reservations about the majority’s holding that this case is not moot, and especially its decision not to employ the flexible doctrine of prudential mootness to avoid this wholly unnecessary federal court intrusion into the relations between a local government and federal land managers. But I will focus on what I regard as the more serious legal errors: the plaintiffs' lack of standing, the absence of a cause of action, and the erroneous application of preemption principles.
. In district court, Kane County asserted ownership of rights over the Skutumpah Road and the Windmill Road, but neither of these roads has been closed by the BLM.
. The Monument Plan prohibits all vehicular travel on certain roads, subject to valid existing rights of way, and prohibits OHV travel even on routes left open. Although neither the parties nor the majority distinguish between these two types of restriction, they stand on different legal footing. The scope of an R.S. 2477 right-of-way is determined by its prior use, and may or may not extend to off-road vehicles, which were not common a decade before the passage of FLPMA in 1976. Moreover, federal land managers retain substantial regulatory authority even with regard to land subject to a valid existing right-of-way. See SUWA,
. The majority does not cite FLPMA as a source of such interests, though it is the only statute that remotely seems relevant. FLPMA imposes on federal land managers certain responsibilities to protect the land from "unnecessary or undue degradation,” 43 U.S.C. § 1732(b), which might well extend to restricting OHV use. E.g., Southern Utah Wilderness Alliance v. Dabney,
. The case from which the majority takes this language calls the quoted, understanding of standing a "somewhat cynical view,” and goes on to hold that the plaintiffs were asserting an interest protected by the Free Speech Clause. In re Special Grand Jury 89-2,
. In San Juan, environmental groups with seemingly the same interests the plaintiff groups assert here were denied permission even to intervene, let alone to bring a suit in their own name. As noted above, we held that the environmental intervenors did not need to establish standing because there was an original party with Article III standing to sustain the jurisdiction of the court.
. This assumes that the County’s signs were new, rather than merely replacements for long-standing County road signs, which is unclear from the record.
. In this case, for example, the evidence indicates that BLM has refrained from taking steps to block travel on at least some disputed routes until the legal picture has been clarified, App.1914, and the County has repealed its ordinance and removed offending signs for the same reason. This reinforces why the rules of standing matter. When the two parties in interest show restraint, outside interests should not be permitted to foment litigation.