By Lindsey Houseal
The contentious R.S. 2477 debate has again reached the Tenth Circuit Court of Appeals. This time, in Wilderness Society v. Kane County, Utah, No. 08-4090, (10th Cir. Aug. 31, 2009), two environmental groups (Plaintiffs) challenged Kane County’s exercise of management authority over roads within the boundaries of Grand Staircase-Escalante National Monument and three other federally-managed parks within Kane County. In 2003, Kane County (the County) representatives removed federal signage restricting off-road vehicles on roads within the park boundaries. Thereafter, the County erected new signs, many of which opened roads previously closed to motor vehicles. Furthermore, in October of 2005, an ordinance passed authorizing the County to post new signs designating roads as open to motor vehicle use. Plaintiffs alleged that both the County’s removal of the signs and the enactment of the ordinance conflicted with the federal government’s management authority.
The district court found that it had subject matter jurisdiction over Plaintiffs’ claims and concluded that the respective federal management plans for each of the public lands preempted the County’s actions. On appeal, the Tenth Circuit affirmed the district court’s holding in a 2-1 decision. Judge McConnell vigorously dissented.
In its decision, the Tenth Circuit first concluded that Plaintiffs had Constitutional standing pursuant to Summers to bring their claims. The declarations submitted by the members of the Plaintiff organizations, stated that they frequently used the areas near the roads in question, had imminent plans to visit in the future, and that they were less likely to return as a result of Defendant’s actions. The Tenth Circuit found that the declarations demonstrated a concrete injury to Plaintiffs’ recreational, aesthetic, spiritual and other interests. Additionally, the injunctive relief requested by Plaintiffs would redress the alleged injury.
The court also found that Plaintiffs had prudential standing. The district court held that the “zone of interest” test did not apply to a Constitutional right of action. The Tenth Circuit affirmed the district court’s view, further reasoning that even “if the [prudential] zone of interest test applie[d] in a preemption case, it is clear that the environmental plaintiffs fall within the zone of interest protected by the Supremacy Clause.” The Tenth Circuit went on to reject Defendant’s contention that Plaintiffs asserted the rights of a third party, the United States, or that the harm was a generalized grievance. To this point, the Court again looked to the member declarations to conclude that the harm was both particular and specific to Plaintiffs.
Furthermore, the Tenth Circuit rejected Defendant’s assertion that the controversy was rendered moot. In its argument, Defendant pointed to the County’s repeal of the ordinance and the removal of the new signs. However, the Court noted that Defendant’s actions came after Plaintiffs initiated their suit. Additionally, the Court referred to a press release from the County Commissioner, which hinted that the County would continue removing signage and reenact the ordinance upon a favorable legal resolution. Thus, Plaintiffs’ case was not moot because the harm was likely to arise again if not addressed.
The Court next concluded that the Supremacy Clause, even without an associated statutory right, was a valid cause of action. Quoting Qwest Corp v. City of Santa Fe, 380 F.3d 1258 (10th Cir. 2004), the Court noted 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.”
In his dissent, Judge McConnell attacked the majority’s decision for granting the Plaintiffs standing to bring the suit, despite what he claimed was an absence of a legally protected interest. He also claimed that the Plaintiffs’ offensive use of preemption was invalid. He argued that the majority should not have come to a decision on the preemption claims without first adjudicating the County’s claimed rights-of-way. Responding to Judge McConnell’s dissenting argument, the majority argued that Qwest and other Tenth Circuit precedent did not limit the preemption argument to a defense.
Finally, the Tenth Circuit evaluated the merits of Plaintiffs’ preemption claim. The court first found that the Defendant had to prove its rights to the roads in order to avoid preemption. Because the County had not brought Quiet Title actions against the federal government for any of the roads in question, and because this particular case was not the proper forum for such claims, the County could not defend against Plaintiffs’ preemption claims by simply alleging that the roads belonged to it. Prior to proving these rights, the County could not act in a way that was inconsistent with the federal management regimes of the four federal parks in question. Therefore, the County’s removal of the signs and adoption of the ordinance were properly preempted by the federal management authority.