Fresno County v. Andrus, 78-1973
| Decision Date | 30 June 1980 |
| Docket Number | No. 78-1973,78-1973 |
| Citation | 622 F.2d 436 |
| Parties | The COUNTY OF FRESNO et al., Plaintiffs-Appellees, v. Cecil D. ANDRUS et al., Defendants. National Land for People, Inc., Applicant for Intervention-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mary Louise Frampton, Olmos & Frampton, Fresno, Cal., for National Land for People.
John F. Daum, Los Angeles, Cal., argued for Fresno County; Robert M. Wash, Fresno, Cal., on brief.
Appeal from the United States District Court of the Eastern District of California.
Before CHOY and NELSON, Circuit Judges, and SCHNACKE, District Judge. *
National Land for People, Inc. (NLP) appeals from the District Court's denial of its Fed.R.Civ.P. 24(a)(2) motion to intervene as of right. This appeal arises out of an action the County of Fresno and others brought to enjoin the Secretary of the Interior from promulgating regulations governing excess land sales until an environmental impact statement was prepared. NLP is a group of small farmers and would-be farmers who seek the opportunity to purchase federally irrigated excess land in the Westlands Water District. It asserts that it is entitled to intervene as of right in this case because it has an interest in the regulations being promulgated expeditiously and neither the Secretary of the Interior nor any other party to the litigation will protect this interest adequately. We agree, and therefore we reverse the order of the District Court.
In May 1976, NLP brought an action in District Court for the District of Columbia, National Land for People, Inc. v. Bureau of Reclamation, 417 F.Supp. 449 (D.D.C.1976), to compel the Secretary of the Interior to initiate public rulemaking proceedings under the Administrative Procedure Act. NLP requested rulemaking to insure enforcement of the statutory requirement that any person owning in excess of 160 acres of land receiving subsidized water from a federal reclamation project must dispose of excess land in lots of not more than 160 acres to residents of the land or those living in the neighborhood, and at prices that reflect the value of the land without the federally subsidized irrigation. 43 U.S.C. §§ 423e & 431; see 417 F.Supp. at 451.
The District Court rejected the Bureau's argument that the law could be enforced best on a case-by-case basis. That Court therefore granted NLP's motion for a preliminary injunction and ordered the Secretary of the Interior to initiate rulemaking proceedings and to suspend approval of any excess land sales in the Westlands Water District.
The D.C. Circuit Court, however, dismissed the case as moot on the basis of the federal defendant's assurances that final rules would be promulgated expeditiously and that no approvals of excess land sales would be allowed until the rules were issued. The Department of the Interior reversed its decision to suspend excess land sales, and the NLP petitioned the D.C. Circuit for a recall of the mandate ordering the action dismissed. In April 1979, the D.C. Circuit granted the petition and reinstated the appeal. The case presently awaits decision.
On November 10, 1977, the County of Fresno and the other plaintiffs brought this action to compel the Department of the Interior to suspend rulemaking proceedings until an environmental impact statement was prepared. On November 28, the Department moved for a change of venue to the District Court for the District of Columbia. Two days later NLP filed a Fed.R.Civ.P. 24(a)(2) motion to intervene as of right, a motion for change of venue, and an opposition to the plaintiffs' motion for a preliminary injunction. The District Court subsequently denied NLP's motion to intervene and the defendant's motion for a change of venue, and granted the plaintiffs' motion for a preliminary injunction. The Department of the Interior did not appeal from either the order denying the motion for change of venue or the order granting the plaintiffs a preliminary injunction. The Department of the Interior now asserts that an Environmental Impact Statement will be published in December 1980. NLP appeals from the order denying the motion to intervene.
Because the denial of a motion to intervene as of right is a final order within the meaning of 28 U.S.C. § 1291, Blake v. Pallan, 554 F.2d 947, 951 n.5 (9th Cir. 1977); Brennan v. Silvergate Dist. Lodge No. 50, 503 F.2d 800, 803 (9th Cir. 1974), we reach the merits of NLP's appeal.
Under the Federal Rules of Civil Procedure, a party may intervene as of right if it satisfies a 4-part test set forth in Rule 24(a)(2): (1) The party's motion must be timely; (2) the party must assert an interest relating to the property or transaction which is the subject of the action, (3) the party must be so situated that without intervention the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the party's interest must be inadequately represented by the other parties. Fed.R.Civ.P. 24(a)(2); see Blake v. Pallan, 554 F.2d 947, 951 (9th Cir. 1977); Stockton v. United States, 493 F.2d 1021, 1022-23 (9th Cir. 1974). Because there is no dispute that NLP's motion was timely, we only address the last three parts of the test.
NLP's Interest. We have rejected the notion that Rule 24(a)(2) requires a specific legal or equitable interest. Blake v. Pallan, 554 F.2d 947, 952 (9th Cir. 1977); Johnson v. San Francisco Unified School District, 500 F.2d 349, 352-53 (9th Cir. 1974). We agree with the D.C. Circuit 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." Nuesse v. Camp, 385 F.2d 694, 700 (D.C.Cir. 1967) (Leventhal, J.). The 'interest test' is basically a threshold one, rather than the determinative criterion for intervention, because the criteria of practical harm to the applicant and the adequacy of representation by others are better suited to the task of limiting extension of the right to...
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