“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
In Kane County v. United States, a majority of the full Tenth Circuit rejected a request to rehear a three-judge panel decision granting an environmental group the ability to intervene in a lawsuit concerning the county’s proposed project to widen roads that pass through a protected wilderness area. Trump judges Joel Carson and Allison Eid joined a February, 2020 dissent that claimed that the group should not have been allowed to participate in the case.
In 2008, Kane County, Utah, later joined by the state, filed suit against the United States seeking authority to substantially widen three state roads that run through a protected wilderness area (which partially included the Grand Staircase-Escalante National Monument). The Southern Utah Wilderness Alliance (SUWA), later joined by the Wilderness Society, moved to intervene to help protect the area. Although the motion was initially denied and the lawsuit continued, it was refiled in 2017 and became particularly important when, in 2018, President Trump eliminated more than 800,000 acres from the monument – the biggest elimination of public lands in U.S. history. That substantial reduction included one of the roads the county sought to widen.
In 2019, a three-judge panel ruled that SUWA had legal standing and should be allowed to intervene in the case because of threatened harm to its interests. The majority explained that based on past precedent, “SUWA’s environmental concern is a legally protectable interest,” and that SUWA had “established an imminent injury” to that interest because the substantial widening of the three roads and related changes would increase traffic and have other negative “impact on the natural wilderness.”
In February 2020, the full Tenth Circuit denied reconsideration of the case. But Trump judges Eid and Carson joined a dissent by Bush appointee Judge Tim Tymkovich, arguing that SUWA should not be entitled to participate in the case. The dissent’s primary argument was that the dispute between Kane County and the U.S. was “solely” an “ownership dispute between the governmental parties” and SUWA “lacks any independent ownership claim.” As Judges Gregory Phillips and Mary Briscoe explained in response, however, the dissent’s assertion ignored the relevant rule and precedent concerning intervention in such cases, which requires only that a party seeking to intervene must have “an interest relating to the property” at issue (emphasis in original), which SUWA surely had.
Particularly because Trump and his administration have shown their disinterest in protecting the environment, protected public lands and wilderness areas, environmental groups like SUWA must be permitted to participate in litigation that threatens to harm such interests. If it had been up to Eid and Carson, however, neither SUWA nor any other environmental group would have the chance to participate in this important case.