Coalition of AZ/NM Counties for Stable Economic Growth v. Dep't of Interior, 95-2189

• Decision Date: 15 November 1996
• Docket Number: No. 95-2189,95-2189
• Parties: COALITION OF ARIZONA/NEW MEXICO COUNTIES FOR STABLE ECONOMIC GROWTH, Plaintiff-Appellee, v. DEPARTMENT OF THE INTERIOR, United States Fish and Wildlife Service; BRUCE BABBITT, Secretary, Department of Interior; MOLLY BEATTIE, Director, United States Fish and Wildlife Service; JOHN ROGERS, Regional Director, Defendants-Appellees, ROBIN SILVER, Applicant in Intervention-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 837

100 F.3d 837

COALITION OF ARIZONA/NEW MEXICO COUNTIES FOR STABLE ECONOMIC GROWTH, Plaintiff-Appellee, v. DEPARTMENT OF THE INTERIOR, United States Fish and Wildlife Service; BRUCE BABBITT, Secretary, Department of Interior; MOLLY BEATTIE, Director, United States Fish and Wildlife Service; JOHN ROGERS, Regional Director, Defendants-Appellees, ROBIN SILVER, Applicant in Intervention-Appellant.

No. 95-2189

United States Court of Appeals Tenth Circuit

November 15, 1996

Appeal from the United States District Court for the District of New Mexico, (D.C. No. CIV-94-1058-MV) Daniel B. Frank (Karen J. Budd-Falen with him, on the brief), Budd-Falen Law Offices, P.C., Cheyenne, WY, for Plaintiff-Appellee.

John J. Kelly, U.S. Attorney, Albuquerque, NM, for Defendants-Appellees (no appearance at argument).

Laura M. Featherston, Student Attorney (James Jay Tutchton, with her, on the brief), Earthlaw, University of Denver - Foote Hall, Denver, CO, for Applicant in Intervention-Appellant.

Before HENRY, LIVELY,^* and MURPHY, Circuit Judges.

HENRY, Circuit Judge.

Dr. Robin Silver appeals from the order of the United States District Court for the District of New Mexico denying his application to intervene in plaintiff-appellee Coalition of Arizona/New Mexico Counties for Stable Economic Growth's ("Coalition") suit against the Department of the Interior ("DOI"), the United States Fish and Wildlife Service ("FWS") and various government officials. The Coalition challenges FWS's decision to protect the Mexican Spotted Owl ("the Owl") under the Endangered Species Act ("the Act"), alleging that FWS failed to follow proper procedures and lacked data sufficient to list the Owl as threatened. Dr. Silver sought to intervene pursuant to the Rule 24 of the Federal Rule of Civil Procedure. Dr. Silver grounded his application upon two facts: (1) he had photographed and studied the Owl in the wild; and (2) he was instrumental in FWS's initial decision to protect the Owl under the Act, see, e.g., 58 Fed. Reg. 14,248, 14,252 (1993) (citing Dr. Silver's petition as instigating FWS's decision to list the Owl as an endangered species).

An order denying intervention is final and subject to immediate review if it prevents the applicant from becoming a party to an action. Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 377 (1987); Arney v. Finney, 967 F.2d 418, 421 (10th Cir. 1992). Accordingly, we accept jurisdiction pursuant to 28 U.S.C. Section(s) 1291 and mindful that "the interest test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process," see, e.g., Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967), we reverse the decision of the district court and remand the case for further proceedings.

I. BACKGROUND

Dr. Silver is a commercial wildlife photographer, an amateur biologist, and a naturalist, specializing in photographing creatures in the American Southwest. Dr. Silver has sought out and photographed the Owl in its natural habitat -- old-growth forests in the Southwest. For the past five years, he has been active in the effort to protect the Owl and its habitat. In December 1989, Dr. Silver petitioned FWS to list the Owl as a threatened or endangered species. See 16 U.S.C. 1533(b)(3)(A) (an "interested person" may petition FWS to add a species to the threatened and endangered species list). When FWS failed to act on his petition within the statutory time limit, see 16 U.S.C. 1533(b)(3)(B), Dr. Silver wrote a letter dated November 9, 1992, to the Secretary of the Interior threatening suit under the Act's citizen lawsuit provision, see 16 U.S.C. Section(s) 1540(g)(2)(C).

In April 1993, FWS listed the Owl as a threatened species. See 58 Fed. Reg. 14,248 (1993). However, FWS failed to designate critical habitat for the Owl, stating that "[d]esignation of critical habitat is prudent, but is not determinable at this time." Id.; see 16 U.S.C. 1533(b)(6)(C). On November 11, 1993, Dr. Silver wrote the Secretary of Interior and the Director of FWS, threatening suit. In December 1993, Dr. Silver and other environmentalists filed suit in the United States District Court for the District of Arizona to force the designation of critical habitat for the Owl. See Aplt's Br. Attach. 3 (the Arizona District Court's unpublished Order in Silver v. Babbitt, No. CIV 94-337 PHX CAM (D. Ariz. 1994)). In October 1994, the court ordered FWS to designate critical habitat for the Owl, but FWS continued to delay. Dr. Silver moved to have FWS held in contempt of court, and the court ordered FWS to submit daily progress reports to Dr. Silver to insure that FWS would comply with the court's order. FWS designated critical habitat for the Owl on May 30, 1995. See 60 Fed. Reg. 29,914 (1995).

In September 1994, the Coalition filed the present lawsuit in the United States District Court for the District of New Mexico challenging the listing of the Owl as an endangered and threatened species under the Act. The Coalition alleges that FWS failed to follow proper procedures and lacked data sufficient to list the Owl as threatened. In May 1995, Dr. Silver filed an application to intervene as of right, or in the alternative, permissively, pursuant to Fed. R. Civ. P. 24. Both the Coalition and the DOI opposed his application, and in July 1995 the district court denied it. The district court did, however, permit Dr. Silver to submit a brief as amicus curiae.

On appeal, Dr. Silver argues that it was error for the court to deny his petition to intervene as of right for the following reasons: he filed his petition in a timely fashion; he has a direct, substantial and legally protectable interest in the subject matter of the action; his interest might be impaired absent his intervention; and The DOI will not adequately represent his interest. See Fed. R. Civ. P. 24(a)(2); Alameda Water & Sanitation Dist. v. Browner, 9 F.3d 88, 90 (10th Cir. 1993). Alternatively, Dr. Silver contends that the district court erred by not allowing him to intervene permissively. The Coalition¹ argues² that the district court's denial of Dr. Silver's application to intervene was proper because: his interest in the subject matter of the action is not direct, substantial and legally enforceable; his interest is not impaired; and the DOI will adequately represent his interest.

II. DISCUSSION

Fed. R. Civ. P. 24(a)(2) provides, in relevant part, as follows: Upon timely application anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Fed. R. Civ. P. 24(a)(2). Accordingly, an applicant may intervene as of right if: (1) the application is "timely"; (2) "the applicant claims an interest relating to the property or transaction which is the subject of the action"; (3) the applicant's interest "may as a practical matter" be "impair[ed] or impede[d]"; and (4) "the applicant's interest is [not] adequately represented by existing parties." Id. We review for an abuse of discretion a district court's rulings on the timeliness of an application for intervention as of right, but we review de novo a district court's rulings on the three remaining requirements under Rule 24(a)(2). See Alameda Water & Sanitation Dist., 9 F.3d at 89-90. The parties agree that Dr. Silver's application was timely. See Aplt's Br. at 10; Aple's Br. at 6. We now address de novo whether Dr. Silver's application met the remaining three requirements under Rule 24(a)(2).³

A. Dr. Silver has a direct, substantial and legally protectable interest in the listing of the Owl.

Dr. Silver must first show that he has "an interest relating to the property or transaction which is the subject of the action." Fed. R. Civ. P. 24(a)(2). The contours of the interest requirement have not been clearly defined. See 7C C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure Section(s) 1908 at 263 (2d ed. 1986 & Supp. 1996). Dr. Silver cites Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392 (9th Cir. 1995), for the proposition that he "is entitled as a matter of right to intervene in an action challenging the legality of a measure [he] has supported." Id. at 1397; see also Yniguez v. Arizona, 939 F.2d 727 (9th Cir. 1991); Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527-28 (9th Cir. 1983); Washington State Bldg. & Constr. Trades Council v. Spellman, 684 F.2d 627, 630 (9th Cir. 1982), cert. denied, 461 U.S. 913 (1983).

Our circuit and the Fifth Circuit require that "[the] interest in the proceedings be `direct, substantial, and legally protectable.'" Vermejo Park Corp. v. Kaiser Coal Corp. (In re Kaiser Steel Corp.), 998 F.2d 783, 791 (10th Cir. 1993) (quoting United States v. Perry County Bd. of Educ., 567 F.2d 277, 279 (5th Cir. 1978)). "Whether an applicant has an interest sufficient to warrant intervention as a matter of right is a highly fact-specific determination," Security Ins. Co. v. Schipporeit, Inc., 69 F.3d 1377, 1381 (7th Cir. 1995), and "the `interest' test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process," Nuesse, 385 F.2d at 700; accord Sierra Club v. Espy, 18 F.3d 1202, 1207 (5th Cir. 1994); Ceres Gulf v. Cooper, 957 F.2d 1199, 1203 n. 10 (5th Cir. 1992); Sanguine, Ltd. v. Department of the Interior, 736 F.2d 1416, 1420 (10th Cir. 1984); see also National Farm Lines v. Interstate Commerce Comm'n, 564 F.2d 381, 384 (10th Cir. 1977) ("Our court has tended to follow a somewhat liberal line in allowing intervention."); Sanguine, Ltd., 736 F.2d at 1420 ...