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Full 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 (âR.S. 2477â). 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arguments below, contending: (1) the environmental plaintiffs lacked standing; (2) the case became moot when the County rescinded the challenged ordinance; (3) the environmental plaintiffs did not possess a cause of action; and (4) both the United States and the State of Utah were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 Countyâs 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 (âGrand Staircase-Escalanteâ or âthe Monumentâ). The other areas involved in this case include: Glen Canyon National Recreation Area (âGlen Canyon NRAâ), 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 âadministrative 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.â S. Utah Wilderness Alliance v. BLM, 425 F.3d 735, 741 (10th Cir.2005) [hereinafter SUWA v. BLM]; accord An Act Granting the Right of Way to Ditch and Canal Owners Over the Public Lands, and for Other Purposes, ch. 262, § 8, 14 Stat. 251, 253 (1866), repealed by FLPMA § 706(a). Because FLPMA repealed R.S. 2477, no new R.S. 2477 rights have been created since 1976. SUWA v. BLM, 425 F.3d at 741. Then-existing rights, however, were explicitly preserved. Id.
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 âMap 2,â 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 âsubject to valid existing rights.â 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 âOrdinanceâ) 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 Countyâs 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 âneed not make any final determination regarding the existence of any R.S. 2477 right-of-way in order to grant TWSâs requested relief.â Following this order, Kane County filed a Rule 59(e) motion to alter or amend the courtâs 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 Countyâs motion to dismiss, the court granted the environmental plaintiffsâ 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 âsecure the most successful legal resolution to current federal roads litigation.â County Commissioner Mark W. Habbeshaw testified that he did not intend to reenact a similar ordinance âright away.â (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 plaintiffsâ claims had been mooted by rescission of the Ordinance and removal of the OHV decals. Kane County also repeated its challenge to the environmental plaintiffsâ 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 plaintiffsâ 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 Countyâs motion to dismiss, indicating:
Kane County failed to meet its burden of demonstrating that TWSâs 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 âsubsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.â
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 Countyâs admission that âno 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 roadâ in the relevant areas (excepting Skutumpah Road). The environmental plaintiffs relied on the Countyâs 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 Countyâs 1996 Map that are not designated as open by the federal government, relying on the uncontroverted deposition testimony of Kane Countyâs 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 plaintiffsâ 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 Countyâs 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 Countyâs 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 Countyâs signs in Grand Stairease-Escalante and Moquith Mountain WSA violated the Supremacy Clause. It ordered the County to remove âthose County road signs that conflict with federal land management plans or federal law as identified in this Orderâ 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 âunless and until Kane County proves in a court of law that it possesses a right-of-way to any such route.â
At the same time, the court denied Kane Countyâs 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 plaintiffsâ âattempt 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.â
A
Absent a plaintiff with constitutional standing, federal courts lack jurisdiction. See Summers v. Earth Island Inst., â U.S.-, 129 S.Ct. 1142, 1148-49, 173 L.Ed.2d 1 (2009). Constitutional standing requires: (1) an injury in fact, (2) causation, and (3) redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To satisfy the injury in fact prong, a plaintiff must show an âinvasion of a
TWS and SUWA assert standing to sue on behalf of their members. âAn 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 organizationâs purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.â Id. We assess standing âas of the time the action is brought,â and our review is de novo. Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir.2005).
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 defendantâs conduct has suffered injury in fact. See Summers, 129 S.Ct. at 1149. It is well-settled that â[w]hile generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice.â Id. (citing Sierra Club v. Morton, 405 U.S. 727, 734-36, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). Conversely, a plaintiff seeking prospective relief whose alleged injury is unmoored from any particular site is ânot tied to application of the challenged regulations,â and ârelates to past injury rather than imminent future injuryâ lacks standing. Id. at 1150.
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. Ozarskiâs 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 â[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.â
As to OHV usage, Ozarski states that she âseek[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.â 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 Countyâs 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 âless likely to return to areas where [OHV] use is likely to occur, given Kane Countyâs actions purporting to open certain areas to [OHVs].â Thomasâ 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 129 S.Ct. at 1150 (declaration insufficient to demonstrate standing âbecause it was not tied to application of the challenged regulations, because it does not identify any particular site, and because it relates to past injury rather than imminent future injury that is sought to be enjoinedâ).
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 âlegally protected interestâ conferred by state or federal law. (Dissenting Op. 1229 (âWe may sympathize with the plaintiffsâ desire to enjoy southern Utahâs canyon country without the intrusion of vehicles, but the plaintiffs can point to no law giving them a legally protected interest in the matter.â).) Despite the dissentâs 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 âlegally protected interestâ refers to a âjudicially cognizable interest.â In re Special Grand Jury 89-2, 450 F.3d 1159, 1172 (10th Cir.2006) (citing Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)).
The dissent argues that equating âlegally protectedâ with âjudicially cognizableâ renders us guilty of âjudicial self-empowerment.â (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 âlegally protectedâ was introduced in Lujan. Cf. Judicial Watch, Inc. v. United States Senate, 432 F.3d 359, 364-65 (D.C.Cir.2005) (Williams, Senior J., concurring) (collecting cases); see also In re Special Grand Jury 89-2, 450 F.3d at 1172 (âThe post -Lujan opinion in Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), written for a unanimous court by Lujanâs author, may have been trying to dispel some of this confusion by substituting âjudicially cognizable interest,â id. at 167, 117 S.Ct. 1154, for âlegally protected interestâ in the definition of injury in fact.â). The dissentâs suggestion that our analysis breaks new ground is entirely misplaced.
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, 503 F.3d 1163, 1199 (10th Cir.2007) (en banc). In San Juan County, we unambiguously held: âWe think it indisputable that SUWAâs environmental concern is a legally protectable interest.â Id. at 1199. The dissent attempts to distinguish this plain statement by noting that it was included in a section discussing intervention. (Dissenting Op. 1230-31.) But the proposition for which we cite San Juan is not that environmental interests are sufficient for standing per se, but that such interests are legally protectable. The en banc court decided in no uncertain terms that SUWAâs environmental interests, which are essentially identical to the interests asserted by the environmental plaintiffs here, are legally protectable. The dissent offers no support for its assertion that an interest can be legally protectable for intervention purposes but not for standing purposes. As a leading treatise notes, the phrase âlegally protected interestâ provides âample opportunity for mischief should a court be bent on denying the reality of a sufficient injury-in-fact.â 13A Charles Alan Wright et al., Federal Practice and Procedure § 3531.4, at 149 (3d ed.2008).
Based on this well-established precedent, we conclude that the environmental plaintiffsâ interests in this case are âof sufficient moment to justify judicial interventionâ and to satisfy Article Illâs injury in fact requirement. In re Special Grand Jury 89-2, 450 F.3d at 1172.
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 membersâ legally protected interests in enjoying the areas at issue are harmed by unlawful OHV use. When an alleged injury âaffects the recreational or even the mere esthetic interests of the plaintiff, that will suffice.â 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 Countyâs 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 âsubstantial likelihoodâ that these actions increased â and if left uncorrected, will increase â OHV usage on the roads, which in turn harms the recreational and other interests of the environmental plaintiffsâ 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 âlikelyâ redress the alleged injury. See Laidlaw Envtl. Servs., 528 U.S. at 181, 120 S.Ct. 693. Kane County asserts that OHV use will continue on the disputed routes irrespective of an injunction. But plaintiffs need not show that a favorable ruling would halt all OHV use. â[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury.â Larson v. Valente, 456 U.S. 228, 243 n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982); see also Nova Health Sys., 416 F.3d at 1158 (âThe plaintiff must show that a favorable judgment will relieve a discrete injury, although it need not relieve his or her every injury.â). We inevitably conclude that removal and replacement of county signs and an injunction prohibiting the County from repeating its unconstitutional actions would likely dissuade at least one person from driving an OHV on a disputed route.
This is not a case in which an outcome favorable to plaintiffs would afford relief only âthrough the persuasive or even awe-inspiring effect of the opinion explaining the exercise of [a courtâs] power,â 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., 416 F.3d at 1159 (quotation omitted) (recognizing that effect of judgment may be indirect for redressability purposes). Moreover, we are not quick to presume that citizens will flout the law. Accordingly, the environmental plaintiffs have demonstrated redressability.
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 courtâs view of the matter.
We review questions of mootness de novo. Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884, 891 (10th Cir.2008). â[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.â Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quotation omitted). A case is moot if a court can no longer grant effective relief as a practical matter. Kan. Judicial Review v. Stout, 562 F.3d 1240, 1246 (10th Cir.2009); United States v. Hahn, 359 F.3d 1315, 1323 (10th Cir.2004) (en banc) (per curiam).
âGenerally, 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.â Kan. Judicial Review, 562 F.3d at 1246. However, when a defendant voluntarily ceases or rescinds the complained-of action after being sued, it âbears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.â Laidlaw Envtl. Servs., 528 U.S. at 190, 120 S.Ct. 693. Under the voluntary cessation doctrine, rescission of a challenged enactment will only moot a controversy if âthere is no evidence in the record to indicate that the legislature intends to reenact the prior version of the disputed statute [or ordinance].â Cornfield v. City of Okla. City, 248 F.3d 1214, 1223-24 (10th Cir.2001).
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 âsecure the most successful legal resolution to current federal roads litigation.â In a press release included in the record, the County Commission stated that rescission was âdeemed necessary pending the resolution of certain legal issuesâ and that litigating the validity of the Ordinance and ownership of the alleged rights of way âis too big a bite of the apple
In addition to rescission, Kane County relies on its removal of OHV decals â and in some instances, entire signsâ as a basis for mootness. According to the County, â[t]here is no longer any local government authorization for OHVs to travel âfederal landâ in Kane County.â 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 Countyâs actions and federal law continues. As with respect to redressabilit