The Wilderness Soc'y v. United States Forest Serv.

• Decision Date: 14 January 2011
• Docket Number: No. 09–35200.,09–35200.
• Citation: 630 F.3d 1173
• Parties: The WILDERNESS SOCIETY; Prairie Falcon Audubon, Inc., Plaintiffs–Appellees,v.UNITED STATES FOREST SERVICE; Jane P. Kollmeyer; Scott C. Nannenga, Defendants,andMagic Valley Trail Machine Association; Idaho Recreation Council; Blueribbon Coalition, Inc., Intervenor–Applicants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

630 F.3d 1173

72 ERC 1629

78 Fed.R.Serv.3d 680

11 Cal. Daily Op. Serv. 591

2011 Daily Journal D.A.R. 757

The WILDERNESS SOCIETY; Prairie Falcon Audubon, Inc., Plaintiffs–Appellees,

v.UNITED STATES FOREST SERVICE; Jane P. Kollmeyer; Scott C. Nannenga, Defendants,andMagic Valley Trail Machine Association; Idaho Recreation Council; Blueribbon Coalition, Inc., Intervenor–Applicants–Appellants.

No. 09–35200.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 13, 2010.Filed Jan. 14, 2011.

Paul A. Turcke (argued) of Moore Smith Buxton & Turcke (Boise, ID), for the appellants.David A. Bahr, Megan O'Reilly (argued), and Erik Schlenker–Goodrich of Western Environmental Law Center (Taos, NM and Eugene, OR), and Scott W. Reed (Coeur d'Alene, ID) for the appellees.Ignacia S. Moreno, Assistant Attorney General, Aaron Avila, and Katherine W. Hazard of the U.S. Department of Justice (Washington, D.C.) for amicus United States.Paul L. Gale (argued), Erik M. Pritchard, and Jacqueline S. Treu of Troutman Sanders LLP (Irvine, CA) for amici Motorcycle Industry Council and Specialty Vehicle Institute of America.Jeffrey W. Leppo and Jason T. Morgan of Stoel Rives LLP (Seattle, WA) for amicus The Alaska Oil and Gas Association.Ronald S. Yockim (Roseburg, OR) for amici Coos County, Grant County, Harney County, and Wallowa County.Roger R. Martella, Jr., Peter R. Steeland, Jr., and Matthew D. Krueger of Sidley Austin LLP (Washington, D.C.), for amici American Petroleum Institute, Chamber of Commerce of the United States, Croplife America, National Association of Manufacturers, and National Petrochemical and Refiners Association.Michael B. Wigmore and Sandra P. Franco of Bingham McCutchen LLP (Washington, D.C.), for amicus Western States Petroleum Association.Elizabeth E. Howard and Dominic M. Carollo of Dunn Carney Allen Higgins & Tongue LLP (Portland, OR) for amici Steens Mountain Landowner Group, Oregon Cattlemen's Association, Oregon Cattlemen's Public Lands Committee, Oregon Farm Bureau Federation, Public Lands Council, and National Cattlemen's Beef Association.Anna M. Seidman and Douglas S. Burdin of Safari Club International (Washington, D.C.), for amicus Safari Club International.Murray D. Feldman and William G. Myers III of Holland & Hart LLP (Boise, ID) and Dana R. Walsh of Southern Nevada Water Authority (Las Vegas, NV), for amicus Southern Nevada Water Authority.Albert M. Ferlo, Donald C. Baur, and Guy R. Martin of Perkins Coie LLP (Washington, D.C.), for amicus Western Urban Water Coalition.Julie A. Weis and Christopher Lundberg of Haglund Kelly Horngren Jones & Wilder LLP (Portland, OR), William K. Barquin, Attorney General of Kootenai Tribe of Idaho (Bonners Ferry, ID), Stuart M. Levit and John Harrison of Confederated Salish and Kootenai Tribes (Pablo, MT), Brett Kenney of Coquille Indian Tribe (North Bend, OR), David C. Bonga of Kalispel Tribe (Airway Heights, WA), William Bacon of Shoshone–Bannock Tribes (Fort Hall, ID), and Catherine Tufts of Confederated Tribes of Siletz Indians (Siletz, OR), for amici Kootenai Tribe of Idaho, Confederated Salish and Kootenai Tribes, Coquille Indian Tribe, Kalispel Tribe, Shoshone–Bannock Tribes, Confederated Tribes of Siletz Indians, and Metlakatla Indian Community.David F. Hensley, Counsel to the Governor (Boise, ID) and Thomas C. Perry of Idaho Governor's Office of Species Conservation (Boise, ID), and L. Michael Bogert and Amy B. Chasanov of Crowell & Moring LLP (Washington, D.C.), for amici C.L. “Butch” Otter, Governor of Idaho and Idaho Governor's Office of Species Conservation.Daniel S. Sullivan, Attorney General of State of Alaska, and Lance B. Nelson of Office of the Alaska Attorney General (Anchorage, AK), for amicus State of Alaska.Scott W. Horngren of American Forest Resource Council (Portland, OR), for amici Alaska Forest Association and Douglas Timber Operators.Mark C. Rutzick of Mark C. Rutzick, Inc. (Oak Hill, VA), for amicus American Forest Resource Council.Appeal from the United States District Court for the District of Idaho, Edward J. Lodge, District Judge, Presiding. D.C. No. 4:08–cv–00363–EJL.Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, HARRY PREGERSON, STEPHEN REINHARDT, PAMELA ANN RYMER, BARRY G. SILVERMAN, SUSAN P. GRABER, M. MARGARET McKEOWN, KIM McLANE WARDLAW, JOHNNIE B. RAWLINSON and JAY S. BYBEE, Circuit Judges.

OPINION

SILVERMAN, Circuit Judge:

Today we revisit our so-called “federal defendant” rule, which categorically prohibits private parties and state and local governments from intervening of right on the merits of claims brought under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq. Because the rule is at odds with the text of Federal Rule of Civil Procedure 24(a)(2) and the standards we apply in all other intervention of right cases, we abandon it here. When construing motions to intervene of right under Rule 24(a)(2), courts need no longer apply a categorical prohibition on intervention on the merits, or liability phase, of NEPA actions. To determine whether a putative intervenor demonstrates the “significantly protectable” interest necessary for intervention of right in a NEPA action, the operative inquiry should be, as in all cases, whether “the interest is protectable under some law,” and whether “there is a relationship between the legally protected interest and the claims at issue.” Sierra Club v. EPA, 995 F.2d 1478, 1484 (9th Cir.1993). Since the district court applied the “federal defendant” rule to prohibit intervention of right on the merits in this NEPA case, we reverse and remand so that it may reconsider the putative intervenors' motion to intervene.

I. BACKGROUND

This action arises out of the Forest Service's adoption of a travel plan that designated 1,196 miles of roads and trails for use by motorized vehicles in the Minidoka Ranger District of Idaho's Sawtooth National Forest. Two conservation groups, the Wilderness Society and Prairie Falcon Audubon, Inc., claim that the Forest Service violated NEPA by, among other things, failing to prepare an Environmental Impact Statement and failing to consider reasonable alternatives to the travel plan that would protect certain ecologically sensitive watersheds and wildlife habitats within the District. Their complaint seeks declaratory and injunctive relief invalidating the travel plan, limiting motorized vehicles to previously authorized routes, and prohibiting off-road vehicles from traveling outside designated routes, pending compliance with NEPA and other environmental statutes.

The issue central to this appeal arose when three groups representing recreation interests, the Magic Valley Trail Machine Association, Idaho Recreation Council, and Blue Ribbon Coalition, Inc., moved to intervene to counter the conservation groups' contention that the Forest Service's plan was too accommodating to users of motorized vehicles. The conservation groups opposed intervention, and the Forest Service took no position on the issue. Applying our Circuit's “federal defendant” rule, the district court denied intervention of right. The district court also denied permissive intervention on the grounds that the recreation groups had not adequately participated in the administrative process and “would not add any further clarity or insight” to the litigation.

The recreation groups appealed, arguing that the district court erred in failing to consider limited intervention and abused its discretion in denying permissive intervention. They also urged us to consider modifying or eliminating the “federal defendant” rule. A three-judge panel of our court ordered the parties to brief whether the court should review the case en banc to consider abandoning the rule. The recreation groups again urged the court to do so. The conservation groups took no position on the propriety of the rule. We granted en banc review. We have jurisdiction pursuant to 28 U.S.C. § 1291. See Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1491 n. 2 (9th Cir.1995) (citing Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527 (9th Cir.1983)).

II. INTERVENTION OF RIGHT IN NEPA CASES

Federal Rule of Civil Procedure 24(a)(2) requires a court, upon timely motion, to permit intervention of right by anyone who “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.” When analyzing a motion to intervene of right under Rule 24(a)(2), we apply a four-part test:

(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 (citing Scotts Valley Band of Pomo Indians v. United States, 921 F.2d 924, 926 (9th Cir.1990)).

Our “federal defendant” rule categorically precludes private parties and state and local governments from intervening of right as defendants on the merits of NEPA actions. See Churchill County v. Babbitt, 150 F.3d 1072, 1082, as amended by 158 F.3d 491 (9th Cir.1998); Forest Conservation Council, 66 F.3d at 1499 n. 11. The rationale for this rule is that such parties lack a “significantly protectable” interest warranting intervention of right under Rule 24(a)(2) because NEPA is a procedural statute that binds only the federal government. See Churchill County, 150 F.3d at 1082 (citing Sierra Club, 995 F.2d at 1485). Our unique interpretation of intervention of right in NEPA cases may be traced to Portland Audubon Society v....