Conservation Law Foundation of New England, Inc. v. Mosbacher, 91-2122

• Decision Date: 02 March 1992
• Docket Number: No. 91-2122,91-2122
• Citation: 966 F.2d 39
• Parties: , 22 Envtl. L. Rep. 21,207 CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Plaintiffs, Appellees, v. Robert A. MOSBACHER, et al., Defendants, Appellees. Associated Fisheries of Maine, et al., Intervenor Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 39

966 F.2d 39

22 Fed.R.Serv.3d 907, 22 Envtl. L. Rep. 21,207

CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Plaintiffs, Appellees, v. Robert A. MOSBACHER, et al., Defendants, Appellees.

Associated Fisheries of Maine, et al., Intervenor

Defendants, Appellants.

No. 91-2122.

United States Court of Appeals, First Circuit.

Heard March 2, 1992.

Decided June 11, 1992.

Ralph J. Gillis with whom Gillis & Campbell, Hingham, Mass., was on brief, for intervenor defendants, appellants Associated Fisheries of Maine et al.

Peter Shelley with whom Conservation Law Foundation, Boston, Mass., was on brief, for plaintiffs, appellees Conservation Law Foundation and Massachusetts Audubon Soc.

Peter A. Appel, Atty., Dept. of Justice, with whom Barry M. Hartman, Acting Asst. Atty. Gen., Washington, D.C., Wayne A. Budd, U.S. Atty., Judith S. Yogman, Asst. U.S. Atty., Boston, Mass., David C. Shilton, Peter H. Van Tuyn, Attys., Dept. of Justice, Margaret F. Hayes, and Gene S. Martin, Office of General Counsel, Nat. Oceanic & Atmospheric Admin., Washington, D.C., were on brief, for federal defendants, appellees.

Before TORRUELLA, Circuit Judge, CAMPBELL and WEIS, ^* Senior Circuit Judges.

WEIS, Senior Circuit Judge.

In this appeal, we determine that a regulated group has a sufficient interest to intervene as of right in a suit filed by public interest organizations seeking more extensive regulation by a federal agency. We also conclude that the proposed intervenors' interest would not be adequately represented by the government. Accordingly, we will reverse the district court order denying intervention.

The appellants are seven commercial fishing groups that were refused intervention under Federal Rule of Civil Procedure 24(a). This suit was brought by the plaintiffs Conservation Law Foundation of New England, Inc. and Massachusetts Audubon Society against the Secretary of Commerce, alleging that the Secretary had inappropriately approved a fishery plan submitted under the provisions of the Magnuson Act, 16 U.S.C. §§ 1801-1882. The Foundation ¹ sought to have the Secretary develop a new plan that would prohibit overfishing off the coast of New England.

The fishing groups submitted petitions for intervention, but before the Court could rule, the Foundation and the Secretary agreed upon the terms of a consent decree. At a consolidated hearing, the district court denied the fishing groups' requests for intervention and approved the consent decree.

As part of a comprehensive system of conservation, the Magnuson Act established regional councils that have primary responsibility for formulating fishery management plans. Those plans are then forwarded to the Secretary for approval and publication. If a regional council fails to develop a plan or amendment in a reasonable time, or if the Secretary does not approve a proposed plan, the Act authorizes the Secretary to independently prepare a plan or an amendment.

The New England Fishery Management Council formulated the Northeast Multispecies Fisheries Plan in 1985. After some modifications, the Secretary approved the plan in 1987 as an interim rule. In the years following, amendments were added and, in 1991, the Secretary partially approved a fourth amendment.

After approval of the fourth amendment, the Foundation filed the present suit, alleging that the modified plan did not comply with the Act's intent to eliminate overfishing. The Foundation did not ask the Court to invalidate the existing plan, nor determine the content of a new one, but did request an order directing the Secretary to adopt a schedule for developing amendments and submitting proposed regulations.

At a hearing on August 28, 1991, the district court found that the fishing groups had an interest in the litigation, but that "those interests [were] adequately represented by.... a governmental agency whose interests and purposes under the law are to protect the very interests that the proposed intervenors seek to protect." The court observed that "every step that has been taken to date has been publicly noticed and participated in by the public and by the proposed intervenors, even to the extent that some of the intervening associations have principals who are members of the council set up to carry out the purposes of the law. They have participated and they are participating in it."

The court denied intervention without prejudice to renewal of the motion should later developments warrant it. The court also approved the consent decree that set a timetable for development of a plan that would eliminate the over-fished condition of cod and yellow-tailed flounder within five years after implementation, and haddock within ten years.

The fishing groups have appealed, asserting that the district court erred in denying them intervention. The Foundation argues that the proposed intervenors have no legally cognizable interest and, in any event, are protected by the Secretary. Consistent with his posture in the district court, the Secretary takes no position on the proposed intervention, but maintains that at this stage our review does not extend to the merits of the consent decree.

We review the denial of intervention under an abuse of discretion standard. Caterino v. Barry, 922 F.2d 37, 40 (1st Cir.1990). However, the district court has less discretion to deny intervention as of right than is appropriate when permissive intervention is sought. Consequently, an appellate court will reverse a district court's determination if it fails to apply the general standard provided by Federal Rule of Civil Procedure 24(a)(2) or if the decision so fails to comport with that standard as to indicate an abuse of discretion. International Paper Co. v. Town of Jay, Me., 887 F.2d 338, 343-44 (1st Cir.1989).

Rule 24(a)(2) allows intervention as of right if an applicant meets four conditions. In Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 637 (1st Cir.1989), we listed those requirements:

1. The application must be timely (a factor not challenged here);

2. The applicant must claim an interest relating to the property or transaction which is the subject of the action;

3. Disposition of the action may, as a practical matter, impair or impede that applicant's ability to protect the interest; and

4. The applicant must show that the interest will not be adequately represented by existing parties.

An "applicant who fails to meet any one of these requirements cannot intervene." Id.

The fishing groups stress two interests that they seek to protect. First, they cite a personal economic and cultural-identity interest primarily based on the millions of dollars invested in commercial vessels, tackle, docks, and processing, storage, and transportation equipment for use in the fishing industry. Second, they point to a more general interest in the rulemaking process, including adoption of regulations under the Magnuson Act.

The district judge commented at the hearing, "I am going to rule that the fishermen do have an interest. That is not disputed here." The Foundation, however, does not agree and argues that the fishing groups' interests are inadequate for intervention.

To justify intervention as of right, interests must be "significantly protectable." Donaldson v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 542, 27 L.Ed.2d 580 (1971). However, because the case law varies substantially between courts, no bright line of demarcation exists.

In general, the Courts of Appeals for the Second, Sixth, Tenth, and D.C. Circuits have adopted a liberal approach to intervention. They view the interest test as a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. Natural Resources Defense Council v. Costle, 561 F.2d 904, 910-11 (D.C.Cir.1977); cf. Jansen v. City of Cincinnati, 904 F.2d 336, 342-44 (6th Cir.1990); Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Comm'n, 578 F.2d 1341, 1344-45 (10th Cir.1978); New York Pub. Interest Research Group, Inc. v. Regents of Univ. of State of N.Y., 516 F.2d 350 (2d Cir.1975).

Applying more restrictive criteria, the Courts of Appeals for the Fifth, Seventh, Eleventh, and Federal Circuits reject interests that are speculative, indirect, or contingent. See Manasota-88, Inc. v. Tidwell, 896 F.2d 1318, 1322 (11th Cir.1990); American Maritime Transp., Inc. v. United States, 870 F.2d 1559, 1561 (Fed.Cir.1989); American Nat'l Bank & Trust Co. v. City of Chicago, 865 F.2d 144, 147 (7th Cir.1989); New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.1984).

This Court has not clearly adopted either of those approaches. Instead, we have emphasized that "[t]here is no precise and authoritative definition of the interest required to sustain a right to intervene," while reiterating "that the intervenor's claims must bear a 'sufficiently close relationship' to the dispute between the original litigants" and that "[t]he interest must be direct, not contingent." Travelers Indem., 884 F.2d at 638.

Nonetheless, the lack of a clear standard may not be of great concern. As one treatise comments: "Indeed, it may well be, as some courts have suggested, that this is a question not worth answering." 7C Charles A. Wright, Arthur R. Miller & Mary K. Kane, et al., Federal Practice and Procedure § 1908, at 263 (1986).

The differing results in the case law may be explained to some extent by the varied factual situations. The circumstances that exist when individuals litigate private disputes or those governed by state law differ from those where public law disputes affecting federal regulatory programs are at issue. So too, the determination of whether an interest is sufficient for Rule 24(a)(2) purposes is colored to some extent by the third factor--whether disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect its...