Sierra Club v. Espy

• Decision Date: 31 March 1994
• Docket Number: No. 93-5150,93-5150
• Citation: 18 F.3d 1202
• Parties: , 28 Fed.R.Serv.3d 1293, 24 Envtl. L. Rep. 20,888 SIERRA CLUB, et al., Plaintiffs-Appellees, v. Mike ESPY, in His Official Capacity as Secretary of Agriculture, et al., Defendants, Texas Forestry Association and Southern Timber Purchasers Council, Movants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1202

18 F.3d 1202

38 ERC 1421, 28 Fed.R.Serv.3d 1293,

24 Envtl. L. Rep. 20,888

SIERRA CLUB, et al., Plaintiffs-Appellees, v. Mike ESPY, in His Official Capacity as Secretary of

Agriculture, et al., Defendants,

Texas Forestry Association and Southern Timber Purchasers

Council, Movants-Appellants.

No. 93-5150

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

March 31, 1994.

Steven P. Quarles, J. Michael Klise, Thomas R. Lundquist, Crowell & Moring, Washington, DC, James R. Cornelius, Zeleskey, Cornelius, Hallmark, Roper & Hicks, Lufkin, TX, for appellants.

Barbara Lowe, Philadelphia, PA, for Sierra Club & the Wilderness Soc.

Edward C. Fritz, Dallas, TX, for Texas Comm. of Natural Resources.

Appeal from the United States District Court for the Eastern District of Texas.

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Texas Forestry Association ("TFA") and the Southern Timber Purchasers Council ("STPC"), two trade associations representing most of the purchasers of timber from the Texas national forests, appeal the district court's denial of their motion to intervene in this lawsuit between the Sierra Club and the Secretary of Agriculture. Concluding that movants satisfied the requirements of FED.R.CIV.P. 24(a) for intervention as a matter of right, we reverse.

I.

Three environmentalist groups initiated a lawsuit in 1985 to challenge certain United States Forest Service practices for managing the four national forests in Texas. The initial complaint alleged that the Forest Service's program for controlling the southern pine beetle was in violation of the Wilderness Act, 16 U.S.C. Secs. 1131-1136, the Endangered Species Act ("ESA"), 16 U.S.C. Secs. 1531-1543, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. Secs. 4321-4361. The district court denied the requested relief but issued a preliminary injunction requiring the Forest Service to adhere to its own prescribed policies for controlling the pine beetle. See Sierra Club v. Block, 614 F.Supp. 134, 135, 139-41 (E.D.Tex.1985).

In 1987, the Forest Service issued the "Texas Forest Plan" (the "Plan") based upon an environmental impact statement ("EIS"). The plaintiffs amended their complaints to allege that the Plan violated the ESA, NEPA, and the National Forest Management Act ("NFMA"), 16 U.S.C. Sec. 1600 et seq., in addition to their claims concerning the pine beetle. Because the plaintiffs' administrative appeals of the Plan were pending, the district court dismissed the Plan-related claims. See Sierra Club v. Lyng, 694 F.Supp. 1256, 1259 (E.D.Tex.1988). The court entered a permanent injunction, however, with regard to ESA violations that were not related to the Plan. See Sierra Club v. Lyng, 694 F.Supp. 1260 (E.D.Tex.1988). This court affirmed the finding of ESA violations but vacated portions of the injunction to give the Forest Service the opportunity to formulate its own plan to comply with the ESA. See Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir.1991).

In 1990, one plaintiff, the Texas Committee on Natural Resources ("TCONR"), filed a third amended complaint to address pine beetle issues. In 1992, TCONR filed its fourth amended complaint, which included Plan-related claims, challenging the Plan and the Plan EIS. The magistrate judge recommended that the government's motion for summary judgment be granted and the plaintiffs' NFMA and NEPA claims be dismissed. On January 6, 1993, TCONR filed its objections to the magistrate judge's report and moved for an "urgent injunction" barring the Forest Service from proceeding with timber sales in various parts of the Texas national forests.

On May 12, 1993, the district court granted TCONR's motion, issuing a preliminary injunction against even-aged logging ¹ and rejecting the magistrate judge's conclusion that the Forest Service had complied with NFMA and NEPA on these timber sales. See Sierra Club v. Espy, 822 F.Supp. 356, 370 (E.D.Tex.1993). On June 24, 1993, the Forest Service issued a letter advising prospective timber purchasers that, as a result of the injunction, it would refrain from offering not only the planned timber sales challenged by the plaintiffs but also any timber sales with even-aged regeneration cuts. This letter triggered TFA and STPC's motion to intervene on July 9, 1993, which was denied.

II.

Movants argue that the district court erred in refusing to allow their intervention as a matter of right under FED.R.CIV.P. 24(a). A party seeking to intervene as of right must satisfy four requirements: (1) The application must be timely; (2) the applicant must have an interest relating to the property or transaction that 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 its interest; and (4) the applicant's interest must be inadequately represented by the existing parties to the suit. New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.) (en banc) (quoting International Tank Terminals, Ltd. v. M/V Acadia Forest, 579 F.2d 964, 967 (5th Cir.1978)), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984). If a party seeking to intervene fails to meet any one of those requirements, it cannot intervene as a matter of right. Kneeland v. National Collegiate Athletic Ass'n, 806 F.2d 1285, 1287 (5th Cir.), cert. denied, 484 U.S. 817, 108 S.Ct. 72, 98 L.Ed.2d 35 (1987). TFA and STPC's right to intervene is a legal issue that we review de novo. Ceres Gulf v. Cooper, 957 F.2d 1199, 1202 (5th Cir.1992). ²

A.

Movants argue that their motion to intervene was timely. Determining the timeliness of a motion to intervene entails consideration of four factors: (1) The length of time during which the would-be intervenor actually knew or reasonably should have known of its interest in the case before it petitioned for leave to intervene; (2) the extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor's failure to apply for intervention as soon as it knew or reasonably should have known of its interest in the case; (3) the extent of the prejudice that the would-be intervenor may suffer if intervention is denied; and (4) the existence of unusual circumstances militating either for or against a determination that the application is timely. Stallworth v. Monsanto Co., 558 F.2d 257, 264-66 (5th Cir.1977) (citations omitted).

The analysis is contextual; absolute measures of timeliness should be ignored. Id. at 266 (citation omitted). The requirement of timeliness is not a tool of retribution to punish the tardy would-be intervenor, but rather a guard against prejudicing the original parties by the failure to apply sooner. McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir.1970) (citation omitted). Federal courts should allow intervention "where no one would be hurt and greater justice could be attained." Id. (citation omitted).

1.

The movants argue that the first factor supports intervention because they promptly moved for intervention once their interest in the case became apparent, i.e., after the preliminary injunction was issued on May 12, 1993. The lawsuit, although pending for eight years, did not raise the NFMA and NEPA claims with regard to the Plan until the fourth amended complaint was filed in May 1992. Even in 1992, movants argue, the TFA and STPC believed that their interests would not be adversely affected, given the magistrate judge's report recommending that the NFMA and NEPA claims be dismissed.

Not until the district court granted the preliminary injunction did the movants become aware that their interests in timber sales were affected. TFA and STPC moved to intervene within two months of the issuance of the preliminary injunction.

The plaintiffs contend that the movants should have become aware in 1987 of any interest they had concerning timber sales because the NFMA and NEPA claims were first raised in the second amended complaint. The district court indicated that it would carry the NFMA and NEPA claims in January 1988, pending exhaustion of administrative remedies. Furthermore, TFA participated as amicus curiae in the 1989 appeal of the decision concerning even-aged management under the ESA. Plaintiffs conclude that the NFMA and NEPA claims have been present for six years and that the movants' interest in these issues has remained unchanged during that time.

Having reviewed the January 1988 district court opinion, we conclude that the status of the NFMA and NEPA claims changed dramatically over the course of the lawsuit. In its January 1988 opinion, the district court dismissed TCONR's claim relating to the land and resource management plan. See Sierra Club v. Lyng, 694 F.Supp. 1256, 1259 (E.D.Tex.1988). Furthermore, the district court denied Sierra Club's motion to amend its complaint to allege noncompliance with NFMA, pending exhaustion of administrative remedies. Id. at 1260. Therefore, TFA and STPC had reason to believe that their interests were not adversely affected at that stage.

In Stallworth, 558 F.2d at 264, we rejected the notion that the date on which the would-be intervenor became aware of the pendency of the action should be used to determine whether it acted promptly. Courts should discourage premature intervention that wastes judicial resources. Id. at 265. A better gauge of promptness is the speed with which the would-be intervenor acted when it became aware that its interests would no longer be protected by the original parties. Id. at 264.

In this case, the movants legitimately believed that the Forest Service would defend its timber sales and planning. When the agency announced on June 24, 1993, that it would apply the preliminary injunction to all timber sales (not merely the nine sales challenged by the plaintiffs), movants became aware that the Forest Service...