Use v. Mont. Wilderness Ass'n

• Decision Date: 26 July 2011
• Docket Number: No. 10–35823.,10–35823.
• Citation: 647 F.3d 893,80 Fed.R.Serv.3d 30
• Parties: CITIZENS FOR BALANCED USE, Plaintiff–Appellee,v.MONTANA WILDERNESS ASSOCIATION; Greater Yellowstone Coalition; the Wilderness Society, Applicants–in–intervention–Appellants,andMary Erickson, Gallatin National Forest Supervisor; United States Forest Service, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

647 F.3d 893

80 Fed.R.Serv.3d 30

11 Cal. Daily Op. Serv. 9349

2011 Daily Journal D.A.R. 11,223

CITIZENS FOR BALANCED USE, Plaintiff–Appellee,

v.MONTANA WILDERNESS ASSOCIATION; Greater Yellowstone Coalition; the Wilderness Society, Applicants–in–intervention–Appellants,andMary Erickson, Gallatin National Forest Supervisor; United States Forest Service, Defendants.

No. 10–35823.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 2011.Filed July 26, 2011.

Douglas L. Honnold, Timothy J. Preso, Sean M. Helle (argued), and Jenny K. Harbine, Earthjustice, Bozeman, MT, for applicants-in-intervention-appellants Montana Wilderness Association, Greater Yellowstone Coalition, and the Wilderness Society.Catherine A. Laughner, Mary Christina Surr McCann, and Kyle W. Nelson (argued), Browning, Kaleczyc, Berry & Hoven, P.C., Bozeman, MT, for plaintiff-appellee Citizens for Balanced Use.

Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. 2:10–cv–00017–SEH.Before: RAYMOND C. FISHER, RONALD M. GOULD, and RICHARD A. PAEZ, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Three conservation groups, Montana Wilderness Association, Greater Yellowstone Coalition, and The Wilderness Society (collectively, “Applicants”) appeal from the denial of their motion to intervene on the side of the defendants in an action brought by Citizens for Balanced Use (“CBU”) against Mary Erickson, in her official capacity as Supervisor of the Gallatin National Forest, and the United States Forest Service (“Forest Service”). In the underlying action, CBU challenged an interim order issued by the Forest Service in response to an adverse decision in prior litigation brought by Applicants. That interim order, which is the subject of this litigation, restricted motorized and mechanized vehicle use in a section of the Gallatin National Forest. CBU alleged that the challenged interim order violated the Montana Wilderness Study Act of 1977 (“MWSA”) and the Administrative Procedure Act (“APA”) because it unduly restricted the use or possession of snowmobiles, tracked ATVs, and other over-snow vehicles. Because we conclude that Applicants satisfied the four requirements for intervention as of right under Federal Rule of Civil Procedure 24(a), we reverse and remand with instructions that the district court allow Applicants to intervene and become parties to the ongoing litigation, and that the district court take reasonable steps to put Applicants on equal footing with the original parties so as to ensure their opportunity for participation.

I

The Gallatin National Forest, in southwest Montana, contains within its boundaries the Hyalite–Porcupine–Buffalo Horn Wilderness Study Area (“Study Area”), made up of 155,000 acres of public lands established by the Montana Wilderness Study Act of 1977, Pub.L. No. 95–150, 91 Stat. 1243. The MWSA requires the Secretary of Agriculture to administer the Study Area so as to “maintain [its] presently existing wilderness character [as of 1977] and potential for inclusion in the National Wilderness Preservation System.” MWSA § 3(a), 91 Stat. 1243.

In October 2006, after several years of environmental analysis, public review, and public comment, the Forest Service issued the Travel Management Plan (“Plan”), along with a Final Environmental Impact Statement, to manage travel and recreation within the Study Area. Three conservation groups—the same groups that are the applicants for intervention in this case, namely Montana Wilderness Association, Greater Yellowstone Coalition, and the Wilderness Society—filed an action in March 2007 to challenge the Plan under the APA on the theory that the Plan permitted increased motorized and mechanized activity in the Study Area in violation of the MWSA and the National Environmental Policy Act (“NEPA”). See Mont. Wilderness Ass'n v. McAllister, 658 F.Supp.2d 1249 (D.Mont.2009). CBU,¹ with several other recreational use advocacy groups, also filed suit against the Forest Service to challenge the Plan, but, unlike the conservation groups, it asserted that the Plan was overly restrictive of motorized and mechanized recreational activity in violation of the MWSA. The two separate challenges to the Plan were consolidated. In September 2009, the district court in the consolidated action granted summary judgement to the conservation plaintiffs (Applicants in this case) based on its conclusion that the Plan was arbitrary and capricious and violated the MWSA and NEPA; enjoined the continued implementation of the Plan; and remanded to the agency for further proceedings consistent with its ruling. See id. at 1256, 1266. The Forest Service appealed the district court's grant of summary judgment for the conservation plaintiffs (Applicants), and that appeal is currently pending before this court.

In November 2009, in response to the district court's ruling, the Forest Service announced an interim management strategy for the Study Area, made effective by an Interim Order, which further limited snowmobile and other motorized and mechanized use.² In April 2010, CBU initiated this action against the Forest Service to challenge the Interim Order. CBU claimed that the Interim Order violated the MWSA and the APA because it restricts motorized and mechanized vehicle use in areas that were open to such use in 1977. Ten days after the Forest Service filed its answer in CBU's new action, Applicants filed a motion to intervene as of right under Rule 24(a)(2), or, in the alternative to intervene in the court's discretion under Rule 24(b). CBU opposed the motion. The district court denied the motion. Applicants timely appealed the district court's denial of their motion seeking intervention as of right or permissive intervention.

II

We have jurisdiction over the denial of a motion to intervene as of right as a final appealable order under 28 U.S.C. § 1291. Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 814 (9th Cir.2001). We review the denial of a motion to intervene as of right de novo, with the exception of the timeliness prong, which we review for abuse of discretion.³ Id. at 817.

We have jurisdiction over the denial of a motion for permissive intervention only if we determine that the district court abused its discretion. League of United Latin Am. Citizens v. Wilson (“LULAC”), 131 F.3d 1297, 1307–08 (9th Cir.1997); see also Freedom From Religion Found., Inc. v. Geithner, 644 F.3d 836, 843–44 (9th Cir.2011) (stating that we review the denial of a motion for permissive intervention for abuse of discretion). We need not reach the issue of permissive intervention if we determine that intervention as of right was improperly denied. United States v. City of L.A., 288 F.3d 391, 398 (9th Cir.2002) (“We reverse as to intervention as of right, and we therefore do not consider whether the [applicant] was entitled to intervene permissively.”).

III

Federal Rule of Civil Procedure 24(a)(2) states:

On timely motion, the court must permit anyone to intervene 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.

An applicant seeking to intervene as of right under Rule 24 must demonstrate that four requirements are met: “(1) the intervention application is timely; (2) the applicant has a significant protectable interest relating to the property or transaction that is the subject of the action; (3) the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect its interest; and (4) the existing parties may not adequately represent the applicant's interest.” Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir.2006) (internal quotation marks and citation omitted); see also Berg, 268 F.3d at 817. While an applicant seeking to intervene has the burden to show that these four elements are met, the requirements are broadly interpreted in favor of intervention. Prete, 438 F.3d at 954. “In addition to mandating broad construction, our review is guided primarily by practical considerations, not technical distinctions.” Berg, 268 F.3d at 818 (internal quotation marks and citation omitted).

CBU concedes that Applicants meet the first three elements of the test for intervention as of right and urge that intervention was properly denied solely on the basis that Applicants did not show that the Forest Service may not adequately represent their interest. We agree with the parties that Applicants meet the first three requirements for intervention as of right. Those requirements, while not now disputed, merit brief discussion because they are part of the setting in which we examine the disputed issue.

With respect to the first requirement, Applicants filed their motion to intervene in a timely manner, less than three months after the complaint was filed and less than two weeks after the Forest Service filed its answer to the complaint. The motion to intervene was made at an early stage of the proceedings, the parties would not have suffered prejudice from the grant of intervention at that early stage, and intervention would not cause disruption or delay in the proceedings. These are traditional features of a timely motion. See Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 836 (9th Cir.1996).

Second, Applicants have a significant protectable interest in the action. “Whether an applicant for intervention as of right demonstrates sufficient interest in an action is a ‘practical, threshold inquiry,’ and ‘[n]o specific legal or equitable interest need be established.’ ” Id. at 837 (quoting Greene v. United States, 996 F.2d 973, 976 (9th Cir.1993)). To demonstrate a significant protectable interest, an applicant must establish that the interest is...