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Ninth Circuit Eliminates Prohibition on Intervention
of Right in NEPA Cases
January 25, 2011
by Joseph M. Carpenter
jcarpenter@somachlaw.com
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On January 14, 2011, the Ninth Circuit Court of
Appeals held that the categorical prohibition on
intervention as a matter of right in actions brought
under the National Environmental Policy Act of 1996
(NEPA) no longer applies.
Wilderness Soc’y v. United States Forest Serv.,
2011 U.S. App. LEXIS 734 (9th Cir. 2011). In doing
so, the court abandoned its “federal defendant”
rule, which prevented private parties and state and
local governments from intervening of right on the
merits of NEPA claims.
Background
This action arose out of the United States Forest
Service’s (Forest Service) adoption of a plan that
designated 1,196 miles of roads and trails for use
by motorized vehicles in Idaho’s Sawtooth National
Forest. Two conservation groups brought suit,
claiming that the Forest Service violated NEPA by,
among other things, failing to prepare an
Environmental Impact Statement and failing to
consider reasonable alternatives to the plan that
would protect certain watersheds and wildlife
habitats. The lawsuit sought to invalidate the
plan, limit motorized vehicles to previously
authorized routes, and prohibit off-road vehicles
from traveling outside designated routes, pending
compliance with NEPA and other environmental
statutes.
Three groups representing recreation interests
subsequently moved to intervene to oppose the
conservation groups’ contention that the Forest
Service’s plan was too accommodating to users of
motorized vehicles. The district court denied
intervention of right under the “federal defendant”
rule. The district court also denied permissive
intervention.
The recreation groups appealed. Among other things,
the groups asked the Ninth Circuit to consider
modifying or eliminating the “federal defendant”
rule. The court subsequently granted en banc
review.
Intervention of Right in NEPA Cases
Federal Rule of Civil Procedure 24(a)(2) requires a
district court to permit intervention of right by
anyone who “claims an interest relating to the
property or transaction that is the subject of the
action, and is so situated that disposing of the
action may as a practical matter impair or impede
the movant’s ability to protect its interest, unless
existing parties adequately represent that
interest.” In determining whether to grant a motion
to intervene of right, the Ninth Circuit applies a
four-part test: (1) the motion must be timely; (2)
the applicant must claim a “significantly
protectable” interest relating to the property or
transaction which is the subject of the action; (3)
the applicant must be so situated that the
disposition of the action may as a practical matter
impair or impede its ability to protect that
interest; and (4) the applicant’s interest must be
inadequately represented by the parties to the
action.
The Ninth Circuit’s “federal defendant” rule
categorically precludes private parties and state
and local governments from intervening of right as
defendants on the merits of NEPA actions. The
rationale for this rule is that such parties lack a
“significantly protectable” interest warranting
intervention because NEPA is a procedural statute
that binds only the federal government.
The Ninth Circuit has held that the federal
government is the only proper defendant in a NEPA
compliance action. While the “federal defendant”
rule does not prohibit limited intervention of right
in the remedial phase of NEPA litigation, it has
been consistently applied to bar third parties from
intervening of right in the merits portion of NEPA
litigation addressing the government’s compliance
with the statute.
The Ninth
Circuit Decision
On appeal, the Ninth Circuit reversed the trial
court’s decision to deny intervention as a matter of
right under the “federal defendant” rule. In doing
so, the court abandoned its categorical prohibition
on the ability of private parties and state and
local governments to intervene as defendants on the
merits of NEPA cases on the grounds that the
“federal defendant” rule is at odds with the text of
Rule 24(a)(2) and the standard applied in all other
intervention of right cases.
Specifically, the court found that the “federal
defendant” rule is inconsistent with the text of
Rule 24(a)(2), which requires only “an interest
relating to the property or transaction that is the
subject of the action.” The court reasoned that the
“federal defendant” rule, which is based on the
notion that private parties do not have a
significant protectable interest in NEPA compliance
actions, mistakenly focuses on the underlying legal
claim instead of the property or transaction that is
the subject of the lawsuit. The court noted that
there is nothing in Rule 24(a)(2) that limits
intervention of right to a party liable to the
plaintiffs on the same grounds as the defendants.
In other words, simply because a putative intervenor
will not be liable for a NEPA violation does not
mean that they do not have a significant protectable
interest related to the property or transaction that
is the subject of the action to justify
intervention.
In addition, the court found that the “federal
defendant” rule’s limitation on intervention of
right in NEPA cases is contrary to the standards
applied in all other intervention of right cases
because the rule eschews practical and equitable
considerations and ignores the liberal policy in
favor of intervention. The court explained that the
rule fails to recognize the possibility that private
parties seeking to intervene in NEPA cases may be
able to demonstrate an interest protectable under
some law and a relationship between that interest
and the claims at issue. As such, the court
concluded that district courts should be permitted
to conduct the intervention inquiry on a
case-by-case basis.
The court further found that the “federal defendant”
rule is at odds with the consistent approval of
intervention of right on the side of federal
defendants in cases asserting violations of
environmental statutes other than NEPA. The court
reasoned that there is no principled basis to
categorically prohibit intervention of right on the
merits of NEPA actions while approving of it in
cases challenging the federal government’s
compliance with other environmental and
administrative statutes. The court explained that
given the many different scenarios in which NEPA
claims arise, district courts should be permitted to
engage in the contextual, fact-specific inquiry as
to whether parties meet the requirements for
intervention of right on the merits, just as they do
in all other cases, noting that rigid prohibition
contravenes a major premise of intervention—the
protection of third parties affected by pending
litigation.
Finally, the court found that the “federal
defendant” rule is out of step with all but one of
the other circuits that have addressed this issue,
which further supports the case for abandoning of
the rule.
In abandoning the “federal defendant” rule, the
court clarified that the test for determining
whether putative intervenors demonstrate the
“significantly protectable” interest necessary for
intervention of right in a NEPA case, as in all
cases, is whether the interest asserted is
protectable under some law and whether there is a
relationship between the legally protected interest
and the claims at issue. The court noted that a
putative intervenor will generally demonstrate a
sufficient interest for intervention of right in a
NEPA action if “it will suffer a practical
impairment of its interests as a result of the
pending litigation.”
Conclusion and Implications
This decision broadens access to the courts for
private parties and state and local governments that
want to intervene in NEPA cases to protect their
interests. By eliminating the “federal defendant”
rule, the Ninth Circuit has created consistency in
the standard that applies to intervention as a
matter of right under Rule 24(a)(2). Like in all
other cases, third parties affected by pending NEPA
litigation can now move to intervene on the merits
of those cases. Given that Rule 24(a)(2) is
construed broadly in favor of putative intervenors,
this ruling will undoubtedly result in a significant
increase in third party participation in NEPA
cases. As a consequence, the parties in NEPA cases
will now more closely resemble the parties (i.e.,
private, state, and federal) that routinely appear
in cases asserting violations of other environmental
statutes, e.g., Endangered Species Act.
For further information on
Wilderness Soc’y v. United States Forest Serv.,
2011 U.S. App. LEXIS 734 (9th Cir. 2011), please
contact Joseph M. Carpenter at
jcarpenter@somachlaw.com.
Somach
Simmons & Dunn provides the information in its
Environmental Law & Policy Alerts and on its website
for informational purposes only. This general
information is not a substitute for legal advice,
and users should consult with legal counsel for
specific advice. In addition, using this
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Simmons & Dunn or its attorneys does not create an
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