Full opinion text
We granted rehearing en bane to consider several issues in this suit challenging a local government’s rights of way over federal lands in southern Utah. The Wilderness Society and other environmental groups (collectively “TWS”) brought this action challenging Kane County’s assertion of R.S. 2477 rights of way over federal lands managed by the Bureau of Land Management and the National Park Service. TWS sued under the Supremacy Clause of the U.S. Constitution, alleging that federal statutes, regulations, and agency management decisions preempted Kane County’s actions. 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 in a separate action and, until it did so, federal law preempted any ordinances and actions to assert those rights. The district court also enjoined Kane County from any action to open routes over federal lands to public use. A divided panel affirmed the district court. See Wilderness Soc’y v. Kane County, 581 F.3d 1198 (10th Cir.2009). According to the panel: (1) TWS demonstrated constitutional and prudential standing; (2) the matter was not moot; (3) TWS had a cause of action under the Supremacy Clause; (4) the State of Utah and the United States were not necessary parties; and (5) the district court correctly decided the merits of the preemption claims. Id. at 1209-26. We reverse because TWS lacks prudential standing to sue. 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. Background 1. R.S. 2477 Rights of Way This case is the latest stage in years of litigation over road rights on federal lands in southern Utah. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004); Kane County v. United States, 597 F.3d 1129 (10th Cir.2010); Kane County v. Salazar, 562 F.3d 1077 (10th Cir.2009); San Juan County v. United States, 503 F.3d 1163 (10th Cir.2007) (en banc); Utah Shared Access Alliance v. Carpenter, 463 F.3d 1125 (10th Cir.2006); S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735 (10th Cir.2005) (“SUWA ”); Sierra Club v. Lujan, 949 F.2d 362 (10th Cir. 1991); Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.1988). Like most of those cases, this one concerns 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,” this statute and the roads established under its authority “were an integral part of the congressional pro-development lands policy.” SUWA, 425 F.3d at 741. The establishment of these rights of way “required no administrative 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.” Id. Indeed, “R.S. 2477 was a standing offer of a free right of way over the public domain,” the acceptance of which occurred “without formal action by public authorities.” Id. (internal citations and quotation marks omitted). “All that is required” for title to pass “are acts on the part of the grantee sufficient to manifest an intent to accept the congressional offer.” Id. at 754; see also San Juan Coun ty, 503 F.3d at 1168 (“ ‘[A] right of way could be obtained without application to, or approval by, the federal government. Rather, the grant referred to in R.S. 2477 became effective upon the construction or establishing of highways, in accordance with the state laws.’ ” (quoting Hodel, 848 F.2d at 1078)). Although FLPMA repealed R.S. 2477 in 1976, it expressly preserved any existing rights-of-way. Pub.L. No. 94-579, § 701(a), 90 Stat. 2743, 2786 (“Nothing in this Act ... shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this act.”); § 701(h), 90 Stat. 2743, 2786 (“All actions by the Secretary concerned under this Act shall be subject to valid existing rights.”). 2. Kane County’s Actions The events relevant to this case began in March 2003, when Kane County requested that BLM remove its road signs closing certain routes in the Grand Staircase-Escalante National Monument. Aplt.App. 848-51. The BLM’s management plan for the Monument closed many routes to off-highway vehicles such as all-terrain vehicles, snowmobiles, and the like. See id. at 2856. The management plan depicted the open routes on a map labeled “Map 2,” but provided that “[a]ny route not shown on Map 2 is considered closed upon approval of this plan, subject to valid existing rights.” Id. at 1624, 1628. The plan contemplated the assertion of R.S. 2477 rights in the Monument: If claims are determined to be valid R.S. 2477 highways, the Approved Plan will respect those as valid existing rights.... Nothing in this Plan alters in any way any legal rights the Counties of Garfield and Kane or the State of Utah has [sic] to assert and protect R.S. 2477 rights, and to challenge in Federal court or other appropriate venue any BLM road closures that they believe are inconsistent with their rights. Id. at 1624 & n. 1. The County’s March 2003 letter asserted that the BLM had wrongfully closed “county roads asserted as R.S. 2477 Rights-of-Way.” Id. at 848. The County proposed some temporary solutions, but the BLM would not remove the signs. Id. at 850, 853. In August 2003, the County removed thirty-one BLM signs from alleged R.S. 2477 rights of way, returned the signs to BLM, and wrote BLM a letter detailing its actions. Id. at 853-54. In 2005, the County posted its own signs along routes in the Monument that the County understood to be county roads. Id. at 756-57, 921. The signs indicated that the routes were open to off-highway vehicle use despite the management plan. Id. at 1635-36. The County later removed “some” of these signs “pending consideration of the roads’ status and uses.” Id. at 929. In August 2005, the County adopted Ordinance No. 2005-03, which opened Class B and Class D county roads to off-highway vehicle use. Id. at 1755. The Ordinance invoked the County’s R.S. 2477 rights, but did not refer to any federal lands. Id. The County later admitted that the ordinance applied to rights of way crossing federal lands, specifically the Monument, the Moquith Mountain Wilderness Study Area, the Paria Canyon-Vermillion Cliffs Wilderness Area, and the Glen Canyon National Recreation Area. Id. at 1636-37, 2396, 2398. The County rescinded the ordinance in December 2006, after the start of this litigation. Id. at 836. At the same time, the County declared its intention to remove the off-highway vehicle use decals from all county roads. Id. at 836, 839. The County reported that it later removed all the decals. Id. at 917. 3. Procedural History TWS filed this suit on October 13, 2005, alleging that the County’s ordinance, removal of BLM signs, and erection of County signs conflicted with federal statutes, regulations, and decisions and orders issued pursuant to those regulations. Id. at 18-20. TWS sought declarations that the ordinance and the County’s posting of signs on federal land were unconstitutional, and an injunction against similar actions in the future. Id. at 20-21. Kane County moved to dismiss the suit in January 2006 under Rules 12(b)(1), (6) and (7). The County argued against the court’s jurisdiction on several grounds, including TWS’s lack of constitutional or prudential standing. Id. at 118-27. In particular, the County argued that TWS had no “standing to sue in lieu of the United States” and was not pursuing its “own legal rights,” but rather “seeking] to stand in for the United States.” Id. at 122. The district court denied the County’s motion in August 2006, finding that TWS had shown constitutional standing. Id. at 568. With respect to prudential standing, however, the court reasoned that “TWS need not show prudential standing” because it invoked the Supremacy Clause. Id. at 569-70. At the same time, the court granted TWS’s motion to amend its complaint. Id. at 570-71. The County then filed a motion to alter or amend its order under Rule 59(e), asking the court to reconcile, among other issues, two apparently conflicting statements in the court’s order: that the County “could defend the legality of the Ordinance by attempting to meet its burden to show that it has acquired R.S. 2477 rights on the land,” id. at 565, and that the “Court need not make any final determination regarding the existence of any R.S. 2477 right-of-way in order to grant TWS’s requested relief,” id. at 566. Denying the motion in a short order, the court said, “[T]he court’s Order needs no clarification.” Id. at 670. Shortly after the court denied the County’s first motion to dismiss, the County rescinded Ordinance 2005-03. In May 2007, the County filed a second motion to dismiss under Rule 12(h)(3), arguing that its subsequent rescission of the ordinance mooted the case. Id. at 735-81. The court deemed the case not moot because some County road signs remained on federal land and the County failed to show that it would not re-enact the ordinance. Id. at 1575. Eventually, both parties moved for summary judgment. Id. at 1578-1613, 2218-39. TWS’s motion requested a new remedy: it asked the court to enjoin the County from adopting ordinances or posting signs to open roads considered closed by federal law and management plans “unless and until Kane County proves in a court of law that it possesses a right-of-way to any such route.” Id. at 1580. The County admitted that no court had issued a final determination that it possessed R.S. 2477 rights of way over the roads. Id. at 1868-69. But it protested that TWS had never identified the specific roads at issue, creating genuine issues of material fact, and that the action was “functionally equivalent to an action to quiet title.” Id. at 1887-92. The County also sought partial summary judgment on its R.S. 2477 rights in two specific roads, Skutumpah and Windmill. Id. at 2218-39. The district court granted TWS’s motion and denied the County’s. Id. at 2519-20. It declined to allow the County to establish the validity of its R.S. 2477 rights before deciding the merits. Id. at 2489. “First, the County has not filed a quiet title action in this case, and, second, even if it had done so, TWS is not the proper party to sue for quiet title.” Id. The court declared that the County’s signage and ordinance violated the Supremacy Clause and enjoined the County from similar actions “to invite or encourage vehicle use on any route or area closed to such use by governing federal land management plan or federal law.” Id. at 2519-20. The County appealed the district court’s denials of its motions to dismiss, the denial of its motion for partial summary judgment, and the grant of TWS’s motion for summary judgment. Id. at 2522-23. Discussion Aside from the merits of this action, Kane County raises three threshold questions: constitutional standing, prudential standing, and mootness. See Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884, 891 (10th Cir.2008) (mootness); Keyes v. School Dist. No. 1, 119 F.3d 1437, 1445 (10th Cir.1997) (standing). Because TWS lacks prudential standing, we proceed directly to that issue without deciding whether TWS has constitutional standing or whether the case is moot. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). 1. Prudential Standing Doctrine We review de novo the district court’s determinations regarding subject matter jurisdiction. Kane County, 562 F.3d at 1085 (10th Cir.2009); Sac & Fox Nation of Mo. v. Pierce, 213 F.3d 566, 571 (10th Cir.2000). For federal courts to have jurisdiction over an action, “the party bringing the suit must establish standing.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004); see also Utah Animal Rights Coal. v. Salt Lake County, 566 F.3d 1236, 1240 (10th Cir.2009). “For purposes of standing, we must assume the Plaintiffs’ claim has legal validity.” Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1093 (10th Cir.2006) (en banc). The Supreme Court’s “standing jurisprudence contains two strands: Article III standing, which enforces the Constitution’s case-or-controversy requirement, ... and prudential standing which embodies ‘judicially self-imposed limits on the exercise of federal jurisdiction.’ ” Newdow, 542 U.S. at 11, 124 S.Ct. 2301 (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). To have Article III standing, “[t]he plaintiff must show that the conduct of which he complains has caused him to suffer an ‘injury in fact’ that a favorable judgment will redress.” Id. at 12, 124 S.Ct. 2301. The prudential standing doctrine encompasses various limitations, including “the general prohibition on a litigant’s raising another person’s legal rights.” Allen, 468 U.S. at 751, 104 S.Ct. 3315. “[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.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). “Without such limitations — closely related to [Article] III concerns but essentially matters of judicial self-governance — the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.” Id. at 500, 95 S.Ct. 2197. The question of prudential standing is often resolved by the nature and source of the claim. Id. “Essentially, the standing question in such cases is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiffs position a right to judicial relief.” Id. In some situations, an implied right of action may exist. Id. at 501, 95 S.Ct. 2197. “Moreover, Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules.” Id. The Supreme Court has held that a federal court has jurisdiction in a suit for “injunctive relief from state regulation, on the ground that such regulation is preempted by a federal statute, which by virtue of the Supremacy Clause of the Constitution, must prevail.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). The Court has yet to weigh in, however, on whether the Supremacy Clause provides a cause of action. Neither do we need to do so today as a court sitting en banc. It is true that our prior panel decisions have concluded that when it comes to a Supremacy Clause challenge, it is not necessary to demonstrate that the preemptive federal statute creates a private right of action. Chamber of Commerce v. Edmondson, 594 F.3d 742, 756 n. 13 (10th Cir.2010); Qwest Corp. v. City of Santa Fe, 380 F.3d 1258, 1266 (10th Cir.2004). In Chamber of Commerce, we reasoned that even if 42 U.S.C. § 1983 does not permit a preemption claim, the plaintiffs could proceed under the Supremacy Clause in claiming that various measures enacted by Oklahoma were preempted by federal immigration law. 594 F.3d at 756 n. 13. Nor does there appear to be any requirement that the preemptive federal statute create substantive rights in favor of a party arguing for preemption. Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 643-44, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002); Indep. Living Ctr., 543 F.3d at 1059-62. In Qwest, we relied upon Western Air Lines, Inc. v. Port Auth., 817 F.2d 222, 225 (2d Cir.1987), which distinguished between a Supremacy Clause challenge and a private right of action. The former involves a claim that the local authority lacks the power to regulate given the supremacy of federal law, while the latter seeks to enforce the “substantive provisions of a federal law.” Western Air Lines, Inc., 817 F.2d at 225-26. For purposes of today’s holding, we as an en banc court can simply assume without deciding that the Supremacy Clause provides a cause of action— whether one exists or not, the prudential standing doctrine still bars TWS’s claims. 2. The Prudential Standing Doctrine Applies The district court held that prudential standing is not a concern whenever a plaintiff brings a “preemption-based challenge ... under the Supremacy Clause.” Aplt.App. 570. The panel opinion concluded that TWS had prudential standing, rejecting Kane County’s assertions that TWS was (1) asserting the claims of the United States, (2) raising generalized grievances, and (3) relying on claims outside the zone of interests protected by the Supremacy Clause. Wilderness Soc’y, 581 F.3d at 1216. According to the panel, TWS members are asserting independent harms to their recreational and aesthetic interests given Kane County’s attempt to override the Monument Plan and federal management plans. Id. at 1217. Because the members used lands “within earshot of the disputed roads for recreational purposes” their grievances are specific and not general. Id. at 1217. Finally, even assuming that the zone of interests test applies in a preemption challenge, the panel concluded that the Supremacy Clause need only arguably be designed to protect persons harmed by preempted enactments. Id. In a footnote, the panel suggested that the zone-of-interests test might not apply or be redundant of the third-party standing inquiry. Id. at 1217 n. 11. Although Congress may relieve parties of meeting prudential standing requirements, the doctrine applies “unless it is expressly negated.” Bennett v. Spear, 520 U.S. 154, 163, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). To be sure, as the district court stated, some cases seem to hold that prudential standing is unnecessary in a Supremacy Clause challenge. See Phann. Research & Mfrs. of Am. v. Concannon, 249 F.3d 66, 73 (1st Cir.2001), aff'd on other grounds sub nom. Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003); cf. St. Thomas-St. John Hotel & Tourism Ass’n v. Gov’t of the U.S. Virgin Islands, 218 F.3d 232, 241 (3d Cir.2000). These cases make the point that the preemptive federal statute need not confer a benefit on the plaintiffs, much as we concluded in Qwest, 380 F.3d at 1265. Concannon, 249 F.3d at 73; St. Thomas-St. John Hotel & Tourism Ass’n, 218 F.3d at 241. The district court also relied upon Taubman Realty Group Ltd. P’ship v. Mineta, which concluded that plaintiffs were not required to meet an additional standing requirement concerning the zone of interests regarding a Supremacy Clause challenge. 320 F.3d 475, 481 n. 3 (4th Cir.2003). These cases do not resolve another aspect of prudential standing, whether plaintiffs can assert the legal rights of others. That it may still be an issue is demonstrated by Concannon, where PhRMA challenged a state statute essentially requiring manufacturers to enter rebate agreements with the State and was able to assert the rights of Medicaid recipients. 249 F.3d at 74. The court reasoned that vendors have historically been allowed to challenge restrictions on their operations by advocating the rights of those seeking their products. Id. 3. TWS Lacks Prudential Standing TWS rests its claims on the federal government’s property rights. TWS does not assert a valid right to relief of its own. No provision — constitutional or statutory — expressly grants TWS a right to relief. TWS invokes the Supremacy Clause of the U.S. Constitution, FLPMA, 43 U.S.C. § 1712, the Wilderness Act, 16 U.S.C. §§ 1131-36, the National Park Service Organic Act, 16 U.S.C. § 1, and various regulations and agency decisions implementing the statutes. Aplt.App. 609-11. None of these provisions creates an express private cause of action. See Alexander v. Sandoval, 532 U.S. 275, 286-87, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). That leaves only the Supremacy Clause. See Edmondson, 594 F.3d at 756 n. 13; Qwest, 380 F.3d at 1266. Nonetheless, standing “often turns on the nature and source of the claim asserted.” Warth, 422 U.S. at 500, 95 S.Ct. 2197. In the context of prudential standing, “the source of the plaintiffs claim to relief assumes critical importance.” Id. TWS argues that it is not suing based on the legal rights of a third party, the federal government’s property rights, but rather “is working to protect its conservation interests.” Aplee. Br. at 37. This is indistinguishable from TWS’s argument for constitutional standing: that the County’s actions affect organization members’ conservation interests. Id. at 31-32. But a party’s interest for the purposes of constitutional standing does not automatically confer prudential standing. Prudential standing imposes different demands than injury in fact. See, e.g., City of Los Angeles v. County of Kern, 581 F.3d 841, 848 (9th Cir.2009); MainStreet Org. of Realtors v. Calumet City, 505 F.3d 742, 745 (7th Cir.2007). A party may suffer a cognizable injury but still not possess a right to relief. For example, in Hackford v. Babbitt, the plaintiff alleged injury in the form of crop damage when the defendants diverted irrigation canals. 14 F.3d 1457, 1464 (10th Cir.1994). Although this court assumed that the plaintiff had met the constitutional requirements for standing, he lacked prudential standing because he had no right to manage the irrigation project. Id. at 1466. Its protests notwithstanding, TWS obviously seeks to enforce the federal government’s property rights in the disputed rights of way. Its claims turn on the superiority of the federal government’s property claim. If the County possesses valid R.S. 2477 rights of way in the roads, then its actions do not necessarily conflict with the BLM’s management decisions. On the other hand, if the County does not possess rights of way in the roads, then the BLM’s final decisions trump and invalidate the County’s actions. This was the crux of TWS’s motion for summary judgment: “Kane County has not — and cannot — demonstrate as a matter of law that the County can flout federal management plans and open roads on federal public land without first proving that it possesses rights-of-way to the alleged routes.” Aplt.App. 1612. TWS seeks what it views as the enforcement of federal rights. TWS has taken sides in what is essentially a property dispute between two landowners, only one of which is represented (Kane County). But TWS lacks any independent property rights of its own. In that light, Judge McConnell’s analogy is apt: Imagine that my next-door neighbor, who keeps his property neat and tidy, is faced with a competing claimant to the land, who is likely to allow the property to fill with weeds. I might very much hope my neighbor wins. My property values and aesthetic interests could seriously be affected. I may be impatient with my neighbor’s inclination toward compromise and apparent disinclination to go to court. But no one would say I have standing to sue in defense of my neighbor’s property rights. The Wilderness Society is in precisely that situation. Wilderness Soc’y, 581 F.3d at 1232 (McConnell, J., dissenting). The Supreme Court’s reasons for the general rule against third-party standing counsel against TWS’s standing in this case. We “must hesitate before resolving a controversy ... on the basis of the rights of third persons not parties to the litigation” for two reasons. Singleton v. Wulff 428 U.S. 106, 113, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). “First, the courts should not adjudicate such rights unnecessarily, and it may be that in fact the holders of those rights ... do not wish to assert them....” Id. at 113-14, 96 S.Ct. 2868. BLM’s absence from this case indicates that it does not wish to assert its rights against Kane County at this time or in this fashion. “Second, third parties themselves usually will be the best proponents of their own rights. The courts depend on effective advocacy, and therefore should prefer to construe legal rights only when the most effective advocates of those rights are before them.” Id. at 114, 96 S.Ct. 2868. Although this court has disagreed whether the federal government may adequately represent conservation groups’ interests in R.S. 2477 quiet title cases, see Kane County, 597 F.3d at 1134 (summarizing San Juan County’s various opinions), surely the federal government is the best advocate of its own interests. Sometimes a case may present “countervailing considerations” which “may outweigh the concerns underlying the usual reluctance to exert judicial power when the plaintiffs claim to relief rests on the legal rights of third parties.” Warth, 422 U.S. at 500-01, 95 S.Ct. 2197; see also Kowalski v. Tesmer, 543 U.S. 125, 129-30, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004). No such considerations are present here. First, the federal government’s property right is not “inextricably bound up with the activity the litigant wishes to pursue” like the cases in which the Supreme Court has recognized a doctor’s ability to assert his patient’s privacy rights because of their confidential relationship. Singleton, 428 U.S. at 114-15, 96 S.Ct. 2868 (citing Doe v. Bolton, 410 U.S. 179, 188-89, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Eisenstadt v. Baird, 405 U.S. 438, 445-46, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)). Second, even where a close relationship exists between the litigant and the third party, “some genuine obstacle” to the third party asserting his own rights must exist. Id. at 116, 96 S.Ct. 2868. No apparent obstacles prevent the federal government from asserting its own rights against Kane County, as this court has already recognized. See Kane County, 597 F.3d at 1135. Thus, without any circumstances in favor of allowing TWS to assert the federal government’s legal rights, TWS lacks prudential standing. 4. The Dissent The dissent suggests that the court’s analysis is the product of “extreme means” which misstates and misconstrues the positions of the parties and the district court to nullify the district court’s injunction. Yet it is the panel decision that represents a broad shift in our caselaw. See, e.g., Lindsay Houseal, Wilderness Society v. Kane County, Utah: A Welcome Change for the Tenth Circuit and Environmental Groups, 87 Denv. U.L.Rev. 725, 740-41 (2010) (suggesting that the panel decision represents a shift in favor of the federal government and environmental plaintiffs over the interests of local government). According to the dissent, the case is not about property rights, and it faults the court for concluding that the United States’ property rights can be destroyed outside a quiet title action contrary to Supreme Court precedent and creating a circuit split. The dissent contends that the claim advanced by TWS is merely one concerning the power to regulate and because Kane County did not prove its claims in a quiet title action, neither the district court nor we have any occasion to consider property rights. The dissent further contends that TWS has prudential standing because its members have been injured and that the United States is not the exclusive plaintiff in a Supremacy Clause challenge. After acknowledging the possibility that “some or all of the R.S. 2477 rights-of-way claimed by Kane County are valid,” the dissent reaches the conclusion it does concerning prudential standing because of its views about the merits of the property-interests in this case. See Dissent at 1180-81 (contending that the court’s opinion “elevates any claim to R.S. 2477 rights-of-way ... to a status superior to validly promulgated federal rules and regulations that manage public lands”); id. at 1181 (noting that “[b]y definition, off-road vehicles and all-terrain four wheelers are designed to be driven off roads and across all terrains,” and that “R.S. 2477 rights have been falsely claimed over dry creek beds, horse and hiking trails, and jagged rock outcroppings”); id. at 1180-81, 1185-86 (suggesting that the exclusive means to establishing R.S. 2477 rights is through a quiet title action); id. at 1192 n. 7 (discussing “the ubiquity and ostensible lack of merit to many R.S. 2477 claims”); id. at 1186-87 (concluding that even if Kane County established its R.S. 2477 rights, they still would be subject to federal regulation as easements). The dissent understandably is concerned with false R.S. 2477 claims as a basis for easements in federal land. At a minimum and fortunately as a matter of prudential standing, the dissent’s solution ought to receive the benefit of input by the real-party-in-interest (the United States) before being adopted in the context of a Supremacy Clause challenge. That solution allows a third-party (with no interest in the property) to force a quiet title action; absent participation and victory in that quiet title action, the R.S. 2477 claimant loses. This is an anomaly given a legislative and administrative ordering scheme that expressly recognizes and defers to valid, existing R.S. 2477 rights. It also has implications for our cases and longstanding practice which has recognized R.S. 2477 rights and several other mechanisms for resolving such disputes. See Wilderness Soc’y, 581 F.3d at 1235-36 (McConnell, J., dissenting); SUWA, 425 F.3d at 741. Contrary to the dissent’s claim, this court’s decision in no way holds that “the United States may be stripped of its property rights outside a QTA claim,” Dissent at 1186-87, nor does it conflict with cases construing or applying the QTA such as Block v. North Dakota, 461 U.S. 273, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983), Shawnee Trail Conservancy v. United States Dep’t of Agriculture, 222 F.3d 383 (7th Cir.2000), and Montanans for Multiple Use v. Barbouletos, 568 F.3d 225 (D.C.Cir. 2009). The decision recognizes that given the unique nature of the interest involved and TWS’s claims, the government must be heard. It also recognizes that we cannot dispense with “a real party in interest bringfing] a properly focused conflict to the attention of a court, with evidence to back it up.” Wilderness Soc’y, 581 F.3d at 1237 (McConnell, J., dissenting). If anything, the cases relied upon by the dissent plainly support the idea that TWS is not the proper plaintiff here. Block merely holds that the QTA is the exclusive means for an adverse claimant to challenge the government’s title. 461 U.S. at 286, 103 S.Ct. 1811. It does not, nor could it, purport to be the exclusive means of recognizing R.S. 2477 rights. It says nothing about a third-party forcing a QTA challenge by another with an interest in the property or disregarding the efforts of parties with an interest in the property to settle their differences. Under the dissent’s approach, even if the government and Kane County agreed about the nature and extent of an R.S. 2477 easement or the scope of federal regulation, TWS would be a proper plaintiff to challenge any agreement under the Supremacy Clause. See Wilderness Soc’y, 581 F.3d at 1237 (McConnell, J., dissenting). This would turn the QTA on its head. In Shawnee Trail, the Seventh Circuit rejected the efforts of interest groups (like TWS) to challenge the regulatory authority of United States, notwithstanding that the groups made no claim to quiet title in themselves. 222 F.3d at 386. Montanans for Multiple Use involved plaintiffs who wanted ownership of roads and trails closed by the Forest Service. 568 F.3d at 228. Not surprisingly, the plaintiffs had to proceed under the QTA. Although the dissent maintains that Kane County must engage in a quiet title action, the decision on any remedy (assuming the government were aggrieved) belongs to the United States, and the parties are free, as they have, to engage in conciliation. The dissent contends that TWS has prudential standing simply because its members have suffered alleged aesthetic or recreational injury and have a right to be heard on the supremacy of federal rules and regulations, but of course, prudential standing moves beyond injury in fact and addresses whether a plaintiff is asserting its own legal rights rather than resting on the rights or interests of third parties. See Warth, 422 U.S. at 499, 95 S.Ct. 2197. As discussed above, we conclude that TWS’s claim is derivative of that of the United States. We do not quarrel with the notion that there can be more than one plaintiff (and other than the federal government) in a Supremacy Clause challenge. But contrary to the dissent, we think that more than vindicating the federal government’s right to regulate is at issue here. That right is expressly conditioned on the recognition of existing local property rights and necessarily entails the discretion of the United States as a property owner. We VACATE the district court’s summary judgment in favor of TWS and REMAND with instructions to dismiss the action. . Even in a preemption challenge, a party must have constitutional standing which is jurisdictional. Indep. Living Ctr. of S. Cal. v. Shewry, 543 F.3d 1050, 1064 (9th Cir.2008). Although prudential standing is not a jurisdictional limitation and may be waived, here it has been raised. Id. at 1065 n. 17; Finstuen v. Crutcher, 496 F.3d 1139, 1147 (10th Cir. 2007). . Ordinarily, a plaintiff claiming a violation of FLPMA would sue under the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-06. See New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 719 (10th Cir. 2009). But a suit brought under the APA seeks to compel a federal agency to follow the law, not to stand in the place of the federal agency to compel a state to follow the law. See 5 U.S.C. §§ 702, 706(2); Norton, 542 U.S. at 61-62, 124 S.Ct. 2373. Accordingly, TWS has sued under the Supremacy Clause, not the APA. See Aplee. Br. at 33 ("TWS does not challenge any action or inaction by the federal government....”). . The Quiet Title Act has a twelve-year limitations period. 28 U.S.C. § 2409a(g). . According to the dissent, Kane County brought this on itself by raising an affirmative defense of title to the TWS lawsuit. Dissent at 1190 n.6. . The dissent tells us that "[i]f the United States did not claim an interest in the alleged R.S. 2477 rights, there would be no preempting federal rule upon which to base such a challenge.'' Dissent at 1185 n.5. The government will probably always claim some interest (given the nature of an easement or right of way), even more so under the dissent’s analysis where "subject to valid existing rights" means nothing, absent a quiet title action. See Wilderness Soc'y, 581 F.3d at 1236-37 (McConnell, J., dissenting).
GORSUCH, J., concurring in the judgment, joined by BRISCOE, Chief Judge, and O’BRIEN, Circuit Judge. I reach the same destination as the majority but by a different path. Most of this case is moot — and has been for years. What little of this lawsuit that remains fails to implicate our jurisdiction because even a favorable decision won’t redress the Wilderness Society’s claimed injury. For these reasons, and like the court, I would vacate the district court’s decision with instructions to dismiss this case. Mootness The Wilderness Society’s central challenge in this lawsuit is to a short-lived, long-defunct ordinance. Enacted in August 2005, that ordinance authorized Kane County officials to open certain roads to off-highway vehicles (OHVs), and to place decals on county road numbering signs alerting drivers of this policy. After the Society filed suit, asserting that the Bureau of Land Management’s (BLM) management plan preempted the County’s ordinance by forbidding OHVs from using the roads in question, the County quickly rescinded its ordinance in 2006 and removed all of its OHV-authorizing decals. Without the ordinance and decals in place, OHV traffic isn’t permitted on the roads in question — and hasn’t been for four years. See Utah Code Ann. § 41-22-10.3 (“A person may not operate an off-highway vehicle upon any street or highway, not designated as open to off-highway vehicle use.... ”). There are no OHVs left to fight over; the Society won exactly the relief it sought merely by filing its lawsuit; still, this litigation has lumbered on, with the parties and the lawyers fighting about OHV traffic that is and has long been forbidden. This isn’t so much a live lawsuit as it is the ghost of a lawsuit past. We don’t usually prolong litigation in this way, allowing the fight to continue after one side has thrown in the towel. Especially when carrying on the fight requires us to decide novel and hotly disputed questions of law. Instead, when we face situations like this, we usually say that the controversy has become “so attenuated that considerations of prudence and comity ... counsel the court to stay its hand,” at least as a matter of judicial restraint if not constitutional imperative. Southern Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir.1997) (internal quotation omitted). This practice “pertains throughout the life of a case. So even if a lawsuit involved a live dispute” at one stage, if at any point the dispute dissipates “we will say that the suit has become moot.” Wyoming v. U.S. Dep’t of Interior, 587 F.3d 1245, 1250 (10th Cir.2009). This rule “holds true even if all the parties before us still wish us to render an opinion to satisfy their demand for vindication or curiosity about who’s in the right and who’s in the wrong. Our job is to decide cases that matter in the real world, not those that don’t.” Id. For one, I would follow this cautionary rule of restraint and dismiss the bulk of this suit. Of course, a defendant’s “voluntary cessation of a challenged practice” is not always enough to render a case moot. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982). This court has, however, “preclud[ed] a mootness determination in cases challenging a prior version of a state statute only when the legislature has openly expressed its intent to reenact the challenged law.” Camfield v. City of Oklahoma City, 248 F.3d 1214, 1223 (10th Cir.2001) (emphasis added). And in this case, the County hasn’t expressed any such intent. Just the opposite. In deposition testimony and a press release accompanying the ordinance’s repeal in 2006, Kane County commissioners repeatedly stated that they wished first to resolve the existence and scope of the County’s R.S. 2477 rights — including whether those rights allow it to sanction OHV use in the face of a contrary federal management plan — through a quiet title action before considering any modified ordinance allowing OHV use. See, e.g., Aplt.App. at 839 (public notice explaining the County’s intent to put off the question whether and under what circumstances to allow OHV traffic until “after, first, securing federal recognition of Kane County’s ownership of R.S. 2477 rights-of-ways ... and [after] other related legal issues are more fully resolved”); id. at 1212-1218, 1228. And over the last four years, the County has followed exactly the course it promised, pursuing a separate and still ongoing quiet title action to ascertain the scope of its R.S. 2477 rights. See Kane County v. United States, No. 2:08-CV0315 CW (D.Utah). At the very most, the evidence before us suggests only that the County might enact a different ordinance in the future after resolving the legal uncertainties surrounding the scope of its R.S. 2477 rights — all in a careful attempt to avoid disputes like this one. And there can be little doubt that such a different ordinance, if it is ever enacted and then challenged, will present different legal and factual questions for decision. For example, a new ordinance might close roads to OHV use that the old ordinance sought to open, or seek to open roads the old ordinance closed to OHVs. The operative federal management plan might be different than the one now in place, as a result of ongoing negotiations between federal agencies and the County. And by the time any new ordinance is enacted, we may know the results of the County’s quiet title action and so have a firmer grip on the scope of its R.S. 2477 rights of way. So it is that the outcome of any new dispute between the parties will surely turn on new legal and factual circumstances. Just as certain, the courts can and will address those questions if and when they arise. But the fact that we may lawfully decide the fate of a new and different ordinance raising new and different legal and factual questions in a different lawsuit at some later date doesn’t mean we should keep on life support a lawsuit about a defunct ordinance the County itself left for dead years ago. See, e.g., Unified Sch. Dist. No. 259 v. Disability Rights Ctr. of Kan., 491 F.3d 1143, 1150 (10th Cir.2007) (holding that mootness applies because future instances of wrongful conduct “may be quite different” than that alleged); Md. Highways Contractors Ass’n., Inc. v. Maryland, 933 F.2d 1246, 1249-50 (4th Cir. 1991) (“The statute challenged by the Association no longer exists; a new statute replaced it. In order to determine if someone has been injured by the new statute, we would need more information about the new statute than is presently before us.”); 13C Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Fed. Prac. & Proc. § 3533.6, at 318-19 (3d ed. 2008) (“If the questions that seem to remain open after the revision are quite different from the questions that were initially disputed, it may seem better simply to terminate the present proceeding, so that the new questions can be addressed in other litigation specifically framed for that purpose.”). Redressability While the Society’s complaint is primarily directed at the County’s defunct ordinance and discarded decals that used to authorize OHV traffic, one smaller aspect of its complaint remains. The Society also challenges the County’s practice of erecting county road numbering signs (e.g., “Kane County, K3935”) on its claimed R.S. 2477 rights of way inside BLM lands. These signs are aimed only at identifying the road for routine public traffic; they do not authorize or permit OHV usage on the roads in question. See Utah Code Ann. § 41-22-10.3; supra n. 1. Even so, we should declare the County road numbering signs impermissible under the Supremacy Clause, the Society says, because BLM regulations preempt them. Neither does this part of the Society’s claim appear moot. While the County quickly rescinded its OHV ordinance and removed its OHV authorizing decals after the Society filed suit, and thus disallowed OHV traffic, the County has continued to assert its right simply to post county road numbering signs on its claimed R.S. 2477 rights of way for the convenience of other travelers, and the County did continue to litigate this issue before the district court. So the question remains whether the County can post road numbering signs, even if it no longer purports to permit OHVs. But while this portion of the lawsuit isn’t moot, the Society faces another problem. To claim standing to sue under Article III, a plaintiff must satisfy three “irreducible constitutional” elements — it must have suffered an “injury in fact”; the complained-of conduct must have caused the injury; and there must be a “likelihood that the requested relief will redress the alleged injury.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Steel Co. v. Citizens for a Better Env., 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Even assuming without deciding the Society can meet the first two of these elements, it cannot satisfy the third. By way of relief, the Society asks us to invoke the Supremacy Clause and enjoin County laws or actions inconsistent with federal law. See Const. Art. VI, cl. 2. In this case, however, if any conflict exists it is only between competing claims arising under federal law. On the one hand, the Society argues that certain federal BLM regulations, issued pursuant to the Federal Land Policy and Management Act, dosed the roads in question to any traffic. See Federal Land Policy and Management Act of 1976 (“FLPMA”), Pub.L. No. 94-579, § 701(h), 90 Stat. 2744, 2786; see also 43 U.S.C. § 1782(c). On the other hand, it was undisputed that the County asserts its entitlement to post road numbering signs on the lands in question only by virtue of another federal statute, R.S. 2477. See Act of July 26, 1866 (“R.S. 2477”), ch. 262, § 8,14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by FLPMA § 706(a), 90 Stat. at 2786 (preserving any R.S. 2477 right of way existing before October 21, 1976). In this way, the County is not acting pursuant to authority given to it by any state law but merely asserting a proprietary interest arising from federal law — a proprietary interest that a private individual might just as easily claim when posting road signs along his or her R.S. 2477 right of way (e.g., “two miles to the family ranch”). None of this is to say that the County’s federal law claim under R.S. 2477 is necessarily a winning one. It isn’t at all clear whether (or to what degree) the holder of an R.S. 2477 right of way is entitled to regulate traffic on that right of way. Or whether (and to what degree) competing federal legislation protecting national lands may authorize BLM to restrict the ability of an R.S. 2477 holder to post numbering signs. Fact is, federal law doesn’t always point harmoniously in a single direction — and when it comes to land policy this is perhaps particularly true. Enacted in the nineteenth century, R.S. 2477 sought to promote development by allowing all comers to establish rights of way through federal property without any procedural formality, but by simply asserting and using them. In contrast, contemporary federal land use statutes and regulations like BLM’s give comparatively more attention to conservation. Trying to reconcile these two competing strands of federal law presents many sticky questions: Are BLM regulations purporting to regulate rights of way Congress granted in R.S. 2477 consistent with and reasonable interpretations of the FLPMA? If they are, to what extent do they allow BLM to limit the use of rights of way granted by R.S. 2477? Does an R.S. 2477 right of way holder have to prove its existing rights before exercising those rights in a federally regulated monument or park? Or may the holder use its right of way without pursuing any procedural formality? All of these are intriguing questions about which federal legal entitlement must give way, and to what extent. But, critically for our purposes, no dispute involving only competing federal entitlements can ever present a redressable Supremacy Clause claim. And that’s the only claim presented in this lawsuit. Any possible relief we might give in a Supremacy Clause case — say, a declaration telling the County to stop enforcing a state law or policy, or an injunction voiding state law— won’t do the Society any good, won’t redress its asserted injuries. This is because no order we could issue under the Supremacy Clause could prevent the County from continuing to assert its federal rights. Cf. Warth v. Seldin, 422 U.S. 490, 506, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (voiding the challenged zoning ordinance would not redress plaintiffs’ claimed injury from lack of low-income housing); Linda R.S. v. Richard D., 410 U.S. 614, 618, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973) (no redressability, where plaintiff’s request that prosecutors file criminal charges against the father of her child would not result in child support). It may be that the Society has some other claim it might bring seeking to sort out the parties’ conflicting assertions of federal rights. But it simply doesn’t possess a redressable Supremacy Clause claim. Prudential Standing I bother to go down this road only because of the nettles lining the prudential standing path. Prudential standing doctrine exists, of course, to prevent a party from asserting rights that really belong to a third party. See Warth, 422 U.S. at 499, 95 S.Ct. 2197. The majority says it’s clear from the nature of the Society’s lawsuit that it is seeking only to vindicate the property rights of the United States. The dissent takes issue with this characterization of the Society’s complaint. In the dissent’s view, the Society’s complaint doesn’t allege that BLM or any other federal entity has a superior property interest to the County. Rather, the Society alleges that BLM’s published management plan, regulatorily adopted pursuant to statutory authority under the FLPMA, deems certain roads closed to traffic, and the Society seeks to vindicate its members’ own interests in seeing that plan enforced as written. Simply put, in the dissent’s view, Society members don’t care who owns what rights, they only seek the enjoyment of the wilderness according to what (they say) the BLM’s regulations, as embodied in the published management plan, specify. Respectfully, I don’t see any need to be drawn into this briar patch and tussle over the true and best meaning of the Society’s complaint. However its complaint is construed, the Society has no case left to pursue. Most of its suit is long dead, gone, moot. What very little is left isn’t redressable under the Supremacy Clause. That alone is enough to end this case. It may be that the Society has other means for obtaining relief, other claims to be brought in other suits. The questions whether and to what degree the County may permit OHVs and signs may be resolved in the ongoing quiet title action. Future and different ordinances may beget future and different lawsuits. But none of this means that we may take up the interesting questions associated with the Society’s and County’s and BLM’s competing federal law claims in any old lawsuit. We are courts of limited jurisdiction, with a written charter and prudential doctrines aimed at cabining our discretion, cautioning restraint in the face of temptation, and protecting us from improvident decisions. We may only address the questions put to us, and we may do so only when we have clear jurisdiction and legal authority. That much is lacking here. I respectfully concur. . In some places, the dissent seems to suggest incorrectly that this lawsuit remains alive simply because the County harbors the desire to enact a different law at a different time after the quiet title action sorts out its R.S. 2477 rights. See Dissent at 1192-93. In other places, the dissent seems to acknowledge the correct legal standard under Cornfield, and to argue that the record proves the County intends to reenact its prior ordinance immediately. Id. But the portions of the record the dissent cites prove the opposite. For example, the dissent quotes a couple lines from a County commissioner’s deposition. See Dissent at 1192-93. When read in full, however, that deposition shows that the County and its commissioners do not intend to reenact the same ordinance but intend to wait "until [they] feel confident of the legal issues at play and until [they] consider a modified ordinance that would address several issues that [they] saw in the original ordinance.” Aplt.App. at 1212 (emphasis added); see also id. at 1216-17 (”[T]he wisest course of action was to resign our OHV ordinance, focus this on a property-rights issue and deal with the OHV and federal regulation case law issues down the road. And I’ll admit that I’m not ready to jump right back into that fray of OHV regulation. I think it’s going to require a lot of reflection on my part and consultation with attorneys before I recommend another OHV ordinance.”). Likewise, the dissent quotes only a part of a sentence of a County press release. See Dissent at 1192-93. But the relevant sentence, when read in full, says benignly that ”[l]itigating county transportation system roads as both a property right and an OHV management issue in federal court is too big a bite of the apple at the same time.” Aplt.App. at 839. Finally, the dissent says it's "especially” telling that Kane County retained its county road number signs "until the threat of contempt forced it” to remove them. See Dissent at 1192-93. But the undisputed facts show that the County voluntarily rescinded its OHV ordinance and removed all OHV-authorizing decals quickly after the Society filed suit; no judicial compulsion was involved. It is also beyond cavil that, under Utah law, without the ordinance and decals, OHV traffic is forbidden by law; unsurprisingly, mere road numbering signs don’t suffice to authorize OHV traffic on Utah public highways. Utah Code Ann. § 41-22-10.3. Of course, I freely admit (and discuss in a moment further) that the fact the County chose to keep its road numbering signs in place until a court ordered their removal means that the Society's separate challenge to those signs isn’t moot. But this only serves to highlight the particular and different posture of OHVs, the fact that the County does forbid and has long forbidden them, and that any dispute over them is moot. . For purposes of this analysis, I follow the court's lead and assume without deciding that the Supremacy Clause affords a private right of action, and that such an action can be brought against state policies and practices as well as laws. Whether any of this is true is far from clear, of course. In Shaw v. Delta Air Lines, Inc. the Supreme Court noted that it had jurisdiction to hear a Supremacy Clause challenge but said nothing about the existence of an implied private right of action. 463 U.S. 85, 96 n. 14, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). To the contrary, the Court has repeatedly urged caution when it comes to the business of "finding” implied rights of action. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 286-87, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) ("Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress .... [Cjourts may not create one, no matter how desirable that might be as a policy matter----”). And there’s plenty of reason for caution here. For example, finding a private cause of action as a constitutional matter would permanently deprive Congress the power not to provide a right of action in its laws for private individuals to sue for Supremacy Clause violations. At the same time, doing so may be needless if the Declaratory Judgment Act or some other statute already provides a vehicle for bringing Supremacy Clause challenges, a possibility the parties in this case allude to but don't explore. . In entering an injunction telling the County to remove its signs despite this claim of federal authority, the district court necessarily (if implicitly) first invalidated the County’s asserted federal R.S. 2477 right. In this way, the district court's injunction resolved an issue of conflicting claims under federal law adversely to the County. Essentially, the district court took up and decided a federal quiet title cause of action against the County with respect to the right to place numbering signs — and this of course it had no power to do in a case alleging only a Supremacy Clause cause of action. The dissent makes this same mistake even while contending that I’ve erred by "conflating standing and the merits.” Dissent at 1193. Tellingly, however, the dissent doesn't point to any merits question I decide against the Society. It doesn't because, of course, all I do is identify the fact that the parties’ competing — and unresolved — positions arise entirely under federal law and so can’t present a redressable Supremacy Clause claim. And this much we are constitutionally obliged to do. As courts of limited jurisdiction, federal courts are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction. Unsurprisingly, this duty includes the obligation to examine, as here, whether a favorable judgment on the plaintiff’s chosen cause of action would redress its claimed injuries. In Steel Co., for example, the plaintiff sought as relief certain pre-litigation costs, but the statute under which the plaintiff sued didn’t allow recovery of such costs. See 523 U.S. at 108-09, 118 S.Ct. 1003. Recognizing that even a favorable judgment on the plaintiff's chosen cause of action would fail to provide it with its requested relief (even if other causes of action might have succeeded), the Supreme Court dismissed the suit for lack of redressability. See id. Our case is in exactly the same posture. Perhaps recognizing this, the dissent falls back and tries to suggest that Kane County is actually asserting a state law interest arising from Utah Code §§ 41-22-10.1, -10.5, 72-3-103, -105 that a Supremacy Clause claim could remedy. See Dissent at 1194-95. As it happens, however, the Title 41 provisions the dissent cites have nothing to do with the County’s claimed authority to post road numbering signs on its claimed R.S. 2477 rights of way — they concern only the (moot) question of OHV regulation. Meanwhile, the Title 72 provisions the dissent cites allow the County to regulate other forms of traffic over R.S. 2477 rights of way only if and when the County possesses a valid federal R.S. 2477 claim to the right of way in question — thus confirming again the purely federal nature of the parties’ dispute. See § 72-5-301(7) (defining R.S. 2477 highways, which a county may regulate under subsequent provisions, as those constructed in accordance with federal law).
LUCERO, Circuit Judge, dissenting, joined by HOLLOWAY, Circuit Judge. This is a pivotal case which, unless reversed or modified, will have long-term deleterious effects on the use and management of federal public lands. It also expands the doctrine of prudential standing by arrogating to appellate courts unbounded and unprecedented authority to reverse trial court decisions without addressing the merits. Rather than following the clear precedent of the Supreme Court, this circuit, and other circuits, the majority instead utilizes extreme means to nullify the trial court’s injunction prohibiting Kane County from substituting its own policies for a duly enacted federal management plan on federal public lands. Because it seems to me patently inappropriate to misstate and misconstrue the positions of the parties and the rulings of the trial court to achieve this result, I respectfully but emphatically dissent. Despite the claims of the parties, we are told that this case is not about preemption but about property. The Quiet Title Act (“QTA”) is turned on its head and it is declared that only the dominant holder of property — the United States — may vindicate its regulations against a claimed R.S. 2477 right-of-way. A citizen’s right to protest and be heard on the supremacy of federal rules and regulations is ignored, and notwithstanding the resulting chaos in the management of federal public lands, the majority declares: prudence dictates that the federal courts should remain silently in their chambers. Perhaps some or all of the R.S. 2477 rights-of-way claimed by Kane County are valid. But the validity of these claimed rights-of-way is not properly before us. The United States’ title was not — and could not be — determined in this litigation because Kane County chose not to bring a claim against the United States under the QTA, “the exclusive means by which adverse claimants [may] ch