Forest Conservation Council v. U.S. Forest Service

Decision Date25 September 1995
Docket NumberNo. 95-15341,95-15341
Citation66 F.3d 1489
Parties, 33 Fed.R.Serv.3d 589, 25 Envtl. L. Rep. 21,546, 95 Cal. Daily Op. Serv. 7459, 95 Daily Journal D.A.R. 12,787 FOREST CONSERVATION COUNCIL; Maricopa Audubon Society; Carlson Forest Watch; Greater Gila Biodiversity Project; Southwest Center for Biological Diversity, et al., Plaintiffs-Appellees, v. UNITED STATES FOREST SERVICE, Defendant, The State of Arizona, ex rel. M.J. Hassell, Commissioner, Arizona State Land Department; Apache County, a political subdivision of the State of Arizona, Applicants-in-Intervention-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Mary Mangotich Grier, Assistant Attorney General, for applicant-in-intervention-appellant State of Arizona. Norman D. James and Jay L. Shapiro, Ryley, Carlock & Applewhite, Phoenix, Arizona, for applicant-in-intervention-appellant Apache County.

Peggy Hennessy and Gary K. Kahn, Reeves, Kahn & Eder, Portland, Oregon, for plaintiffs-appellees.

Appeal from the United States District Court for the District of Arizona.

Before D.W. NELSON, T.G. NELSON, Circuit Judges and SAMUEL J. KING, * District Judge.


D.W. NELSON, Circuit Judge:

The State of Arizona and Apache County, Arizona appeal the district court's denial of their motions to intervene under Fed.R.Civ.P. 24. The action in which they seek to intervene was brought by environmental organizations including the Forest Conservation Council (collectively "FCC") alleging that the United States Forest Service ("USFS" or "Forest Service") was violating the National Environmental Policy Act ("NEPA"), 42 U.S.C. Secs. 4321 et seq. and the National Forest Management Act ("NFMA"), 16 U.S.C. Secs. 1600 et seq. by implementing its guidelines for the management of Northern Goshawk habitat on national forest lands. The State of Arizona and Apache County, Arizona, moved to intervene either as of right or permissively under Fed.R.Civ.P. 24. 1 The district court denied appellants' motions but instead granted them amicus status.

We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. 2 We reverse and remand.


FCC brought suit in district court alleging that the Forest Service violated NEPA by failing to prepare an environmental impact statement assessing, on a region-wide and forest-wide basis, its guidelines for the management of Northern Goshawk habitat. 3 42 U.S.C. Sec. 4332. FCC further alleged that the Forest Service violated the NFMA by failing to amend its Regional Guide and Land and Resource Management Plan ("LRMP") to include the recommendations and changes indicated in the management guidelines. 16 U.S.C. Sec. 1604. FCC's complaint sought both a declaration that the Forest Service was violating the federal laws as claimed, and an injunction "prohibiting the [Forest Service], its agents, successors, assigns, contractors, and employees from allowing, permitting, authorizing or taking any action in connection with the sale of timber and any other decisions in Northern Goshawk habitat until it complies with the requirements of [NEPA] and [NFMA]." Complaint at 12 p 3.

The State of Arizona moved to intervene as of right on behalf of M.J. Hassell, the Commissioner of the Arizona State Land Department, an agency of the State of Arizona with fiduciary responsibility for managing the 9.5 million acres of School Trust Lands granted to the State by the federal government when Arizona was admitted to the Union. See Arizona-New Mexico Enabling Act, 36 Stat. 557, Secs. 24-30 (1910); Andrus v. Utah, 446 U.S. 500, 522-24, 100 S.Ct. 1803, 1814-16, 64 L.Ed.2d 458 (1980) (Powell, J., dissenting). Many of the State Trust Lands are adjacent to National Forest lands. The State Land Department is statutorily obligated to manage these lands and the revenues they generate for the benefit of the trust and its beneficiaries. Arizona-New Mexico Enabling Act, 36 Stat. 557, Sec. 28 (1910); Lassen v. Arizona ex rel. Arizona Highway Dept., 385 U.S. 458, 460, 466-70, 470-74, 87 S.Ct. 584, 590-92, 17 L.Ed.2d 515 (1967); Berry v. Arizona State Land Dep't, 133 Ariz. 325, 327, 651 P.2d 853, 855 (1982). The State asserted that its interests would be adversely affected by the injunctive relief that plaintiffs sought because the suspension of all forest management activities in national forests would increase the likelihood of catastrophic forest fires, as well as the spread of pests and disease, that could affect State Trust Lands. Furthermore, the State asserted that the relief sought would directly affect the State Trust Lands by suspending the federal funding of programs which support forest management activities on those lands. See Forestry Assistance Act of 1978, Pub.L. No. 95-313, 92 Stat. 365 (codified at 16 U.S.C. Secs. 1510, 1606, 2101-2111); Ariz.Rev.Stat.Ann. Secs. 37-481, 37-482, 37-622 (1994). The State also alleged that it receives between six and seven million dollars annually in "Forest Reserve" funds from the proceeds of USFS's sale of timber and other forest products in Arizona's national forests, which would be suspended by the injunction sought by plaintiffs. 16 U.S.C. Secs. 499, 500 (1988). Lastly, the State argued that its rights and obligations under its "Joint Powers Agreement" with the United States Departments of Agriculture and the Interior would be adversely affected by the injunction requested by the plaintiffs because the State Land Commissioner/Forester is contractually obligated to provide fire suppression activities both on State Trust Lands and on other federal lands, as requested. Ariz.Rev.Stat.Ann. Sec. 37-623 (1994). The State alleged that its ability to protect its interests would be impaired by the plaintiffs' action and that the federal defendants would not adequately represent their interests. Neither the Forest Service nor FCC objected to the State's motion to intervene.

Subsequently, Apache County, Arizona ("County"), a political subdivision of the State of Arizona located in the northeastern portion of Arizona, filed a separate motion to intervene as of right, or, alternatively, permissively. The County asserted that the relief sought by the plaintiffs would adversely affect its interest in the revenues it receives from taxes and fees it imposes on the use of federal public lands, which are used to fund local school districts and various county functions. The County also asserted that the injunctive relief sought by plaintiffs would directly affect its contracts with the USFS for use and maintenance of roads over national forest land as well as for the Forest Service's construction of three recreational improvement projects on federal land, using Apache County's Arizona State Lake Improvement Fund grants. Ariz.Rev.Stat.Ann. Sec. 5-382 (1994). The County also argued that the requested injunctive relief would affect the County's ongoing effort to develop its Land Use and Resource Policy Plan. See Ariz.Rev.Stat.Ann. Sec. 11-806 (1994). The USFS' response indicated that the agency had no objection to the County's motion to intervene.

The district court denied the State's and County's motions to intervene. Although it found that the appellants' motions were timely and that they "ha[d] made compelling common-sense arguments which would satisfy the protectable interest requirement in most litigation contexts," it concluded that "they have failed to demonstrate protectable interests implicated by Plaintiffs' NEPA action." The district court applied the same rationale to find the State and County had not asserted protectable interests affected by plaintiffs' action under the NFMA. The court also denied the appellants' request for permissive intervention, finding no common questions of law or facts. The court permitted the appellants to file briefs as amici curiae.

After the district court denied the appellants' motions for reconsideration, the State and County timely filed this appeal. On May 11, 1995, the district court granted appellants' motion to stay the proceedings below pending the outcome of this appeal. 4

A. Standard of Review

The district court's ruling on a motion of intervention as of right is reviewed de novo, but the question of timeliness of the motion is reviewed for an abuse of discretion. Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1397 (9th Cir.1995); Sierra Club v. United States EPA, 995 F.2d 1478, 1481 (9th Cir.1993).

B. Legal Standard

To intervene as of right under Fed.R.Civ.P. 24(a) the applicant must claim an interest the protection of which may, as a practical matter, be impaired or impeded if the lawsuit proceeds without him. 5 This court applies a four-part test under this rule:

(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.

Sierra Club, 995 F.2d at 1481 (citation omitted). This court interprets the rule broadly in favor of intervention. Id. The timeliness of appellants' intervention motions was undisputed below, and is not at issue in this appeal.

C. Protectable Interest Relating to the Subject of the Action

The district court held that the State and County had not asserted a legally protectable interest that relates to the subject of this action. "Whether an applicant for intervention demonstrates sufficient interest in an action is a practical, threshold inquiry. No specific legal or equitable interest need be established." Greene v. United States, 996 F.2d 973, 976 (9th Cir.1993) (citing Portland Audubon Soc'y v. Hodel, 866 F.2d 302 (9th Cir.), cert. denied, 492 U.S. 911, 109 S.Ct. 3229, 106 L.Ed.2d 577 (1989)). "Ne...

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