US Court of Appeals, 10th Circuit, No. 08-4090, January 11, 2011: Majority holds that the Wilderness Society and other environmental groups (“TWS”) lack “prudential standing” to bring suit under the Supremacy Clause of the U.S. Constitution challenging a local government’s assertion of rights of way over federal lands managed by the Bureau of Land Management and the National Park Service. The dissent calls this “a pivotal case” in which the majority decision “utilizes extreme means”, does not follow the clear precedent of the Supreme Court, this circuit, and other circuits, and will result in profound “anarchy and chaos in the national parks, national monuments, and federal public lands lying within this circuit”.
Overruling a divided circuit court panel, the Appeals Court en banc held, “The general prohibition against third-party standing applies to a Supremacy Clause challenge where TWS seeks to vindicate the property rights of the federal government, and no countervailing factors exist here which might permit standing.” The dissent said the majority was in error to treat this as a case about property rights of the United States rather about preemption.
At issue was “the nature of Congress’s grant of a ‘right of way for the construction of highways over public lands, not reserved for public uses.’ Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by Federal Land Policy and Management Act of 1976 (“FLPMA”), Pub. L. No. 94-579, § 706(a), 90 Stat. 2743”, known as “R.S. 2477″. The district court granted TWS’s motion for summary judgment, holding that Kane County must first establish the validity of its R.S. 2477 rights of way over federal lands managed by the Bureau of Land Management and the National Park Service in a separate action and, until it did so, federal law preempted any ordinances and actions to assert those rights.
The Court explained the prudential standing doctrine (citing Supreme Court decisions) as including “the general prohibition on a litigant’s raising another person’s legal rights.” “[T]he plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Viewing the TWS suit as a question of property rights, the Court compared TWS’ rights to those of an abutter in title litigation about a neighbor’s house. The dissent viewed the suit as, “A citizen’s right to protest and be heard on the supremacy of federal rules and regulations”.
A concurring opinion would reach the same outcome as the majority based on mootness.
Amicus briefs were filed on behalf of National Trust for Historic Preservation, Utah Association of Counties, Former Directors of the Bureau of Land Management, several Natural Resources and Public Lands Law Professors, Sierra Club, State of Utah, National Parks Conservation Association, National Senior Citizens Law Center, AARP, and National Health Law Program.