Fund for Animals, Inc. v. Norton

• Citation: 322 F.3d 728
• Decision Date: 18 March 2003
• Docket Number: No. 01-5346.,01-5346.
• Parties: The FUND FOR ANIMALS, INC., et al., Appellees, v. Gale A. NORTON, Secretary, Department of the Interior, et al., Appellees. Natural Resources Department of the Ministry of Nature and Environment of Mongolia, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

322 F.3d 728

The FUND FOR ANIMALS, INC., et al., Appellees, v. Gale A. NORTON, Secretary, Department of the Interior, et al., Appellees.

Natural Resources Department of the Ministry of Nature and Environment of Mongolia, Appellant.

No. 01-5346.

United States Court of Appeals, District of Columbia Circuit.

Argued February 21, 2003.

Decided March 18, 2003.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Columbia (No. 01cv00813).

John J. Jackson III argued the cause and filed the briefs for appellant.

Howard M. Crystal argued the cause for plaintiffsappellees. With him on the brief was Katherine A. Meyer. Jonathan R. Lovvorn entered an appearance.

Before: TATEL and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

The Natural Resources Department of the Ministry of Nature and Environment of Mongolia (NRD) appeals from the denial of its motion to intervene in a case concerning the application of the Endangered Species Act to argali sheep located within Mongolia's borders. Because the NRD satisfies the requirements for intervention as of right under Federal Rule of Civil Procedure 24(a)(2), we reverse and direct that the NRD be allowed to intervene.

I

The Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq., requires the Secretary of the Interior to determine whether any species is "endangered" or "threatened," id. § 1533(a)(1), a responsibility she has delegated to the Department of the Interior's Fish and Wildlife Service (FWS), 50 C.F.R. § 402.01(b). A species is endangered if it "is in danger of extinction throughout all or a significant portion of its range," 16 U.S.C. § 1532(6), and is threatened if it "is likely to become an endangered species within the foreseeable future," id. § 1532(20). The ESA provides specified protections for endangered species, id. § 1538(a)(1), and instructs the Secretary to issue such regulations as she "deems necessary and advisable to provide for the conservation of" threatened species, id. § 1533(d).

The argali sheep, an Asian relative of the North American bighorn sheep, is the largest species of wild sheep in the world. Adult males weigh between 210 and 310 pounds and possess enormous spiral horns. Addition of Argali to List of Endangered and Threatened Wildlife, 57 Fed.Reg. 28,014, 28,014 (FWS, June 23, 1992). In 1992, the FWS listed the argali as endangered throughout most of its range. It listed the species as threatened rather than endangered, however, in Mongolia, Kyrgyzstan, and Tajikistan. Id. (codified at 50 C.F.R. pt. 17).

On April 16, 2001, The Fund for Animals, along with other organizations and individuals dedicated to wildlife conservation in general and protection of argali sheep in particular (collectively, the "Fund" or "plaintiffs"), filed suit against the Secretary of the Interior and the Director of the FWS. The plaintiffs alleged that the defendants violated the ESA, the Administrative Procedure Act, 5 U.S.C. § 706, and their own regulations by failing to list the argali as an endangered species in Mongolia, Kyrgyzstan, and Tajikistan, and by issuing hundreds of permits for sport hunters to import killed argali (or parts thereof) into the United States as "trophies." The plaintiffs asked the court, inter alia, to direct the defendants to list the argali as an endangered species in those countries, to declare unlawful all outstanding permits for the import of argali sheep, and to enjoin the defendants from issuing additional permits.

On April 27, 2001, the Foundation for North American Wild Sheep, as well as other organizations and individuals dedicated to wild sheep hunting and conservation (collectively, the "FNAWS intervenors"), filed a motion to intervene as defendants in the Fund's lawsuit. On June 4, 2001, "the Country of Mongolia, through its Natural Resources Department of the Ministry of Nature and Environment," sought to intervene as a defendant as well. Mot. to Add Intervenor at 1 (J.A. at 139).¹ The NRD, represented by the same counsel who filed on behalf of the FNAWS intervenors, described itself as the agency of the Mongolian government responsible for "implement[ing] [the] policy and decision of [the] Government on rational utilization of natural resources, rehabilitation, and ... protection," including the country's "tourist hunting program." Id. at 2 (J.A. at 140). Another pair of organizations dedicated to hunting and conservation, the Safari Club International and the Wildlife Conservation Fund of America (collectively, the "Safari Club intervenors"), moved to intervene on June 27, 2001.

On September 4, 2001, the district court granted the motions for intervention filed by both the FNAWS and Safari Club intervenors, but denied the motion filed by the NRD. The court did not explain its decision, other than to state that denial of intervention was based "[u]pon consideration of [the NRD's motion], the opposition thereto, and the entire record herein." NRD Order at 1 (J.A. at 386). The instant appeal followed.

II

Rule 24 of the Federal Rules of Civil Procedure provides for both permissive intervention and intervention as of right. See Fed.R.Civ.P. 24(a) & (b). The NRD's motion relied on both theories, and its briefs on appeal cite both. Because we conclude that the NRD is entitled to intervene as of right, we need not address the issue of permissive intervention. See Foster v. Gueory, 655 F.2d 1319, 1323-24 (D.C.Cir.1981).

Rule 24(a)(2) states in relevant part:

Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Fed.R.Civ.P. 24(a)(2). Parsing the language of the rule, we have held that qualification for intervention as of right depends on the following four factors:

(1) the timeliness of the motion; (2) whether the applicant "claims an interest relating to the property or transaction which is the subject of the action"; (3) whether "the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest"; and (4) whether "the applicant's interest is adequately represented by existing parties."

Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1074 (D.C.Cir.1998) (quoting Fed.R.Civ.P. 24(a)(2)) (citations omitted). We have further held that, in addition to establishing its qualification for intervention under Rule 24(a)(2), a party seeking to intervene as of right must demonstrate that it has standing under Article III of the Constitution. See Military Toxics Project v. EPA, 146 F.3d 948, 953 (D.C.Cir.1998); Mova Pharm., 140 F.3d at 1074; Building & Constr. Trades Dep't v. Reich, 40 F.3d 1275, 1282 (D.C.Cir.1994). As we have explained, "because a Rule 24 intervenor seeks to participate on an equal footing with the original parties to the suit, he must satisfy the standing requirements imposed on those parties." City of Cleveland v. NRC, 17 F.3d 1515, 1517 (D.C.Cir.1994).

The denial of a motion for intervention as of right is an appealable final order "because it is conclusive with respect to the distinct interest asserted by the movant." Smoke v. Norton, 252 F.3d 468, 470 (D.C.Cir.2001); see Alternative Research & Dev. Found. v. Veneman, 262 F.3d 406, 409-10 (D.C.Cir.2001). We have been somewhat inconsistent, however, in describing the standard of review for such appeals.² As we have previously observed, that may be because we have not always distinguished between the different kinds of determinations necessary to establish the predicate for intervention. See Massachusetts School of Law at Andover, Inc. v. United States, 118 F.3d 776, 779 (D.C.Cir.1997). Notwithstanding that Rule 24(a) is entitled "Intervention of Right," the determinations necessary to establish that predicate are of three different kinds. Some are pure issues of law and hence are reviewed de novo. See Massachusetts School of Law, 118 F.3d at 779; Mova Pharm., 140 F.3d at 1074. Others involve findings of fact and are reviewed for clear error. Cf. Fed.R.Civ.P. 52(a) (providing that "[f]indings of fact ... shall not be set aside unless clearly erroneous"). And some involve a measure of judicial discretion and hence are reviewed for abuse of that discretion. See Massachusetts School of Law, 118 F.3d at 779 (noting "the existence of district court discretion over the timeliness and adequacy of representation issues under Rule 24(a)(2)") (citing Hodgson v. United Mine Workers, 473 F.2d 118, 125 n. 26 (D.C.Cir.1972)); Natural Res. Def. Council v. Costle, 561 F.2d 904, 907, 913 (D.C.Cir.1977) (same).³ Of course, where (as here) the district court has not accompanied its decision with either factual findings or explanation, there is nothing to which we can defer regardless of which standard of review applies. See Cook v. Boorstin, 763 F.2d 1462, 1468 (D.C.Cir.1985).

Because a would-be intervenor's Article III standing presents a question going to this court's jurisdiction, see Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.Cir.2002), we address it first, in Part III below. In Part IV, we consider the four factors set forth in Rule 24(a)(2).

III

To establish standing under Article III, a prospective intervenor — like any party — must show: (1) injury-in-fact, (2) causation, and (3) redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992); Sierra Club, 292 F.3d at 898. The NRD argues that it meets these requirements because fees paid by sport hunters are the primary source of funding for its argali conservation...