Idaho Conservation League v. United States Forest Serv.

• Decision Date: 25 August 2021
• Docket Number: 20-35033
• Parties: IDAHO CONSERVATION LEAGUE, Plaintiff-Appellee, v. UNITED STATES FOREST SERVICE, Defendant, and SALMON HEADWATERS CONSERVATION ASSOCIATION LLC, Intervenor-Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

IDAHO CONSERVATION LEAGUE, Plaintiff-Appellee,
v.
UNITED STATES FOREST SERVICE, Defendant,

and SALMON HEADWATERS CONSERVATION ASSOCIATION LLC, Intervenor-Defendant-Appellant.

No. 20-35033

United States Court of Appeals, Ninth Circuit

August 25, 2021

NOT FOR PUBLICATION

Argued and Submitted May 3, 2021 Portland, Oregon

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding D.C. No. 1:18-cv-00044-BLW

Before: W. FLETCHER, BEA, and FRIEDLAND, Circuit Judges.

MEMORANDUM ^[*]

Salmon Headwaters Conservation Association ("SHWCA"), on behalf of its members, claims entitlement to Ditch Bill Easements ("DBEs") for diversions in the Sawtooth Valley of Idaho. SHWCA members have filed DBE applications with the United States Forest Service ("the Forest Service"). As of this appeal, the applications remain pending.

The Idaho Conservation League ("ICL") sued the Forest Service for failing to initiate consultation under Section 7(a)(2) of the Endangered Species Act ("ESA"), codified at 16 U.S.C. § 1536(a)(2), for the use of the diversions. SHWCA moved to intervene in the action. The district court denied intervention as of right at the liability stage after finding that the Forest Service adequately represented SHWCA's interests. The district court, however, allowed SHWCA to permissively intervene in the remedies phase.

Following cross-motions for summary judgment, the district court held at the liability stage that the Forest Service violated the ESA by failing to engage in consultation over the diversions. Pursuant to a stipulated remedy between ICL and the Forest Service, the Forest Service must begin the consultation process.

SHWCA appeals the denial of intervention and argues the Forest Service has no authority to initiate Section 7 consultation because the issuance of a DBE is non-discretionary. See Alaska Wilderness League v. Jewell, 788 F.3d 1212, 1219 (9th Cir. 2015) (explaining that ESA consultation is not "triggered" when agency action is non-discretionary). From this, SHWCA argues that it possesses a divergent interest from the Forest Service and should have been allowed to intervene as of right in the underlying suit.

1. SHWCA has standing to appeal the denial of intervention. A litigant whose motion to intervene is denied will usually have standing to appeal that denial, independent of whether it would have standing to appeal on the merits. See W. Coast Seafood Processors Ass'n v. Nat. Res. Def. Council, 643 F.3d 701, 705 (9th Cir. 2011) ("[O]ne must not conflate the issue in the underlying litigation . . . with the controversy in this appeal over WCSPA's motion to intervene."); 15A Charles Alan Wright, Arthur R. Miller, &Mary K. Kane, Federal Practice and Procedure § 3902.1 (2d ed. April 2021 update) ("Persons denied intervention in the trial court clearly have standing to appeal the denial of intervention, but if intervention was properly denied have no greater right to appeal the judgment entered between others than other nonparties.").^[1]

For similar reasons, mootness does not preclude our review because SHWCA has demonstrated that the judgment will cause its members a concrete and particularized injury that is actual or imminent and that would likely be redressed if they were permitted to appeal and prevailed on the merits on appeal. See W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 482 (9th Cir. 2011); United States v. Sprint Commc'ns, 855 F.3d 985, 990 (9th Cir. 2017) (holding that an appeal from denial of intervention as of right is not moot if reversing the district court's order could afford the putative intervenor "a possible avenue to some remedy"). The consultation process, irrespective of its outcome, causes injury to SHWCA members because their claimed DBE rights may not be subject to consultation in the first place. As a result of the district court's judgment at the liability phase, SHWCA members are now uncertain about the status of their possessory rights to the diversions, which adversely affects their property values. Because SHWCA has demonstrated that its members will be adversely affected by the judgment, and because a successful appeal could remedy the members' injuries by clarifying their water rights, SHWCA's appeal of the order denying intervention is not moot.

2. Although SHWCA has standing to appeal the denial of intervention, the district court properly denied SHWCA's motion to intervene. In order to show that it was entitled to intervene as of right under Federal Rule of Civil Procedure 24(a), SHWCA had to demonstrate that: (1) its motion was timely; (2) it had a "'significantly protectable interest' in the action"; (3) the disposition of the action "would impair or impede [SHWCA's] ability to protect that interest"; and (4) its interests may have been "inadequately represented by the other parties." Allied Concrete &Supply Co. v. Baker, 904 F.3d 1053, 1067 (9th Cir. 2018) (quoting Wilderness Soc'y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011)). The relevant question in assessing if SHWCA has standing to appeal its denial of intervention to begin with is whether it has shown sufficient interest in the outcome of the litigation now. But on the merits of the motion to intervene, the question is whether SHWCA showed that it met the four-part intervention standard when it moved to intervene. See Oakland Bulk &Oversized Terminal, LLC v. City of Oakland, 960 F.3d 603, 620 (9th Cir. 2020) ("Intervenors, however, failed to identify this potential argument at the time of their motion, and may not do so for the first time after trial."). SHWCA argues for the first time on appeal that the Colorado Ditch Bill, 43 U.S.C. § 1761(c), created a non-discretionary duty for the Forest Service to issue DBEs to statutory-compliant diversions. But SHWCA had not adequately explained the nature of its claimed interests-or how those interests were not adequately represented by the Forest Service-while the motion was before the district court. Because this argument was not presented to the district court, we affirm the denial of intervention.

3. At the conclusion of the liability phase, the district court wrote that under the Colorado Ditch Bill, the Forest Service retains jurisdiction to place conditions on a DBE for the benefit of listed species, with the consequence that they are subject to consultation. Because SHWCA members did not participate in the liability phase, they are not bound by the district court's determination that DBEs for which they have filed applications are subject to consultation.

AFFIRMED. ^[2]

BEA, Circuit Judge, Dissenting:

Article III limits the jurisdiction of the federal courts to actual "Cases" and "Controversies." U.S. CONST. art. III, § 2. This court lacks the authority to rule on a dispute, no matter how fleetingly, unless the party invoking federal jurisdiction demonstrates standing to sue by first alleging and then proving a concrete, traceable, and redressable harm. The Salmon Headwaters Conservation Association ("SHWCA"), an unsuccessful intervenor in this now-concluded litigation between the Idaho Conservation League ("ICL") and the U.S. Forest Service, failed to prove standing and thus cannot challenge the judgment below on its own. Because my colleagues exceed our jurisdiction by reaching the merits of an appeal that should have been dismissed, I respectfully dissent.

I.

This case began when the ICL sued to compel the Forest Service to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service about endangered fish in Idaho's Sawtooth Valley pursuant to Section 7 of the Endangered Species Act, 16 U.S.C. § 1536. The ICL claimed that permit and easement applications for private water diversions currently pending before the Forest Service amounted to discretionary agency actions within the scope of the consultation requirement. The SHWCA, an association of landowners with private water diversions and pending easement applications, moved to intervene under Federal Rule of Civil Procedure 24 to defend its members' preexisting water rights, which it claimed could be impacted by the subject matter of the litigation. The district court denied intervention after concluding that the SHWCA failed to set out an interest that was not adequately represented by the Forest Service. Instead, the court allowed the SHWCA to intervene permissively at the remedy stage of the litigation in case the ICL asked the court to compel the Forest Service to impose interim regulations on private water rights prior to the completion of the consultation process. Despite this allowance, the SHWCA appears not to have meaningfully participated in remedial discussions.

The district court held that actions taken on the permits and easements were discretionary agency actions subject to the consultation requirement, awarded summary judgment to the ICL, and ordered the Forest Service to engage in consultation. The court entered final judgment, the terms of which required consultation to begin according to a stipulated timeline agreed upon by the ICL and the Forest Service; the SHWCA was not named in the judgment and did not join in the stipulation. The Forest Service voluntarily withdrew its initial notice of appeal and declined to seek further review. The SHWCA, however, subsequently appealed the final judgment on to the merits and as to the denial of the motion to intervene, arguing that the district court's decision subjected its members' water rights to the risk of future regulation.

II.

Article III requires the party invoking federal jurisdiction to demonstrate standing by setting out some concrete, particularized, and actual or imminent harm traceable to the challenged conduct and redressable by the court. TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2203 (2021). The invoking party must prove standing "with the...