Southwest Center for Biological Diversity v. Babbitt

Citation150 F.3d 1152
Decision Date06 August 1998
Docket NumberNo. 98-15038,98-15038
Parties, 28 Envtl. L. Rep. 21,560, 98 Cal. Daily Op. Serv. 6173, 98 Daily Journal D.A.R. 8542 SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, a non-profit organization; Kieran Suckling; an individual, Plaintiffs-Appellants, City of Phoenix; City of Chandler; City of Scottsdale; City of Mesa; City of Tempe, Intervenors-Appellees, v. Bruce BABBITT, Secretary of the Interior; U.S. Bureau of Reclamation; U.S. Fish and Wildlife, Defendants-Appellees, Salt River Pima-Maricopa Indian Community, Appellee, Salt River Project and Power District, collectively "Salt River Project," Defendant-intervenor-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Geoff Hickcox, Kenna & Hickcox, Durango, Colorado, for plaintiffs-appellants.

M. Alice Thurston, United States Department of Justice, Washington, DC, for defendants-appellees.

William W. Quinn, Shea & Wilks, Phoenix, Arizona, for intervenors-appellees.

M. James Callahan, Phoenix City Attorney's office, Phoenix, Arizona, for intervenors-appellees.

Cynthia J. Haglin, Chandler City Attorney's office, Chandler, Arizona, for intervenors-appellees.

Stephen J. Burg, Mesa City Attorney's office, Mesa, Arizona, for intervenors-appellees.

Lisa M. McKnight and John B. Weldon, Salmon, Lewis & Weldon, Phoenix, Arizona, for intervenors-appellees.

Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CV-95-02833-PGR

Before: BROWNING, GOODWIN, and SCHROEDER, Circuit Judges.

PER CURIAM:

Southwest Center for Biological Diversity ("Southwest") appeals the dismissal of its suit against the Secretary of the Interior alleging the government's plan to begin using the newly completed Additional Active Conservation Capacity ("AACC") behind the Roosevelt Dam violates the Endangered Species Act ("ESA") and the National Environmental Policy Act ("NEPA"). Southwest claims the government has not adequately taken into account the fate of the Southwestern Willow Flycatcher, an endangered species of songbird with a major nesting ground near the dam, and seeks to prevent the new capacity from being filled until further environmental study is completed. The district court dismissed Southwest's action for failure to join the Salt River Pima-Maricopa Indian Community ("Community"), which the district court concluded was a necessary and indispensable party under Federal Rule of Civil Procedure 19. The Community is a non-party with rights under a 1988 settlement agreement to store water in the AACC.

Reviewing for abuse of discretion, see Kescoli v. Babbitt, 101 F.3d 1304, 1309 (9th Cir.1996), we conclude that the Community is not a necessary party and therefore reverse. The district court correctly concluded that the Community has an interest in the subject matter of Southwest's suit because the Community has an interest in the AACC becoming available for use as soon as possible. We also agree with the district court that an injunction would impair the Community's interest. We conclude, however, that as a practical matter, the Community's ability to protect its interest will not be impaired by its absence from the suit because its interest will be represented adequately by the existing parties to Southwest's suit. See Fed.R.Civ.P. 19; Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir.1990); Shermoen v. United States, 982 F.2d 1312, 1317-18 (9th Cir.1992).

A non-party is adequately represented by existing parties if: (1) the interests of the existing parties are such that they would undoubtedly make all of the non-party's arguments; (2) the existing parties are capable of and willing to make such arguments; and (3) the non-party would offer no necessary element to the proceeding that existing parties would neglect. See Shermoen, 982 F.2d at 1318.

The United States can adequately represent an Indian tribe unless there exists a conflict of interest between the United States and the tribe. See Shermoen, 982 F.2d at 1318; Makah, 910 F.2d at 558. The federal government and Community share a strong interest in defeating Southwest's suit on the merits and ensuring that the AACC is available for use as soon as possible. The district court did not question the ability or willingness of the United States to represent the Community adequately in the adjudication of the underlying merits of the suit, but concluded the government would not represent the Community adequately because the government did not support the Community's motion to dismiss the suit under Rule 19. The district court's approach is circular: a non-party is "necessary" even though its interests are adequately represented on the underlying merits by an existing party, simply because that existing party has correctly concluded that it is an adequate representative of the non-party, and therefore opposes the non-party's preliminary motion to dismiss. The district court's approach would preclude the United States from opposing frivolous motions to dismiss out of fear that its opposition would render it an inadequate representative. The district court's approach would also create a serious risk that non-parties clothed with sovereign immunity, such as the Community, whose interests in the underlying merits are adequately represented could defeat meritorious suits simply because the existing parties...

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3 books & journal articles
  • EXPLORING THE INDISPENSABLE PARTY: A SURVEY OF COMMON CONTEXTS FOR RULE 19 CLAIMS.
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