UNITED STATES COURT OF APPEALS September 3, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

KANE COUNTY, UTAH, a Utah political subdivision,

Plaintiff - Appellee,

STATE OF UTAH,

Intervenor Plaintiff - Appellee,

v. No. 22-4087 (D.C. No. 2:10-CV-01073-CW) UNITED STATES OF AMERICA, (D. Utah)

Defendant - Appellee,

and

SOUTHERN UTAH WILDERNESS ALLIANCE; SIERRA CLUB; THE WILDERNESS SOCIETY; GRAND CANYON TRUST,

Intervenor Defendants - Appellants. _________________________________

ORDER _________________________________

Before HOLMES, Chief Judge, HARTZ, TYMKOVICH, BACHARACH, PHILLIPS, MORITZ, EID, CARSON, ROSSMAN, and FEDERICO, Circuit Judges.* _________________________________

* The Honorable Scott M. Matheson and the Honorable Carolyn B. McHugh are recused and did not participate in the consideration of the Petitions. Appellate Case: 22-4087 Document: 010111104340 Date Filed: 09/03/2024 Page: 2

This matter is before the court on petitions for rehearing en banc filed by the

United States; the State of Utah; and Kane County, Utah (“Petitions”). We also have a

response from Appellants.

The Petitions and response were circulated to all non-recused judges of the court

who are in regular active service. A poll was called and resulted in a tie. Consequently,

the Petitions are DENIED. See Fed. R. App. P. 35(a) (“[a] majority of the circuit judges

who are in regular active service” may order en banc rehearing).

Judges Hartz, Tymkovich, Eid, Carson, and Federico voted to grant the Petitions.

Judge Phillips has filed a separate concurrence in the denial of en banc rehearing. Judges

Hartz and Tymkovich have each written separately in dissent. Judge Tymkovich’s dissent

is joined by Judges Kelly, Eid, Carson, and Federico.

Entered for the Court,

CHRISTOPHER M. WOLPERT, Clerk

2 Appellate Case: 22-4087 Document: 010111104340 Date Filed: 09/03/2024 Page: 3

No. 22-4087, Kane County, et al. v. United States of America, et al.

PHILLIPS, Circuit Judge, concurring in the denial of rehearing en banc.

This case fails the standard governing en banc consideration. See Fed. R. App. P.

35(a)(1) and 10th Cir. R. 35.1(A). Our local rule directs us that “[a] request for en banc

consideration is disfavored,” and that “[e]n banc review is an extraordinary procedure

intended to focus the entire court on an issue of exceptional public importance or on a

panel decision that conflicts with a decision of the United States Supreme Court or of this

court.” 10th Cir. R. 35.1(A).

In 2019, a panel of this court ruled that Southern Utah Wilderness Alliance

(SUWA) had the right, pursuant to Federal Rule of Civil Procedure 24(a)(2), to intervene

in the ongoing R.S. 2477 litigation in Kane County, Utah. Kane Cnty. v. United States

(Kane III), 928 F.3d 877 (10th Cir. 2019). The United States, Kane County, and the State

of Utah sought en banc review of that 2019 intervention decision, which this court

denied. Kane Cnty. v. United States, 950 F.3d 1323 (10th Cir. 2020) (mem.).† Our en

banc denial reflected our view that the 2019 decision did not “conflict[] with a decision

of the United States Supreme Court or . . . this court,” and indicated our belief that the

issues presen

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