U.S. v. Carpenter

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Per Curiam
• Citation: U.S. v. Carpenter, 298 F.3d 1122 (9th Cir. 2002)
• Decision Date: 12 August 2002
• Docket Number: No. 01-16326.,01-16326.
• Parties: UNITED STATES of America, Plaintiff-Counter-Defendant-Appellee, v. John C. CARPENTER; Grant Gerber; O.Q. Johnson, Defendants, and County of Elko, Defendant-Counter-Claimant-Appellee, The Wilderness Society; Great Old Broads for Wilderness, Defendants-Intervenors-Appellants.

298 F.3d 1122

UNITED STATES of America, Plaintiff-Counter-Defendant-Appellee, v. John C. CARPENTER; Grant Gerber; O.Q. Johnson, Defendants, and County of Elko, Defendant-Counter-Claimant-Appellee, The Wilderness Society; Great Old Broads for Wilderness, Defendants-Intervenors-Appellants.

No. 01-16326.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2002.

Filed August 12, 2002.

Eric E. Huber, Earthjustice Legal Defense Fund, Inc., Denver, CO, for the defendants-intervenors-appellants.

Blaine T. Welsh and Steven W. Myhre, U.S. Department of Justice, United States Attorney's Office, Las Vegas, NV, for the plaintiff-counter-defendant-appellee.

Kristin A. McQueary, Office of Elko County District Attorney, Elko, NV, for the defendant-counter-claimant-appellee.

Appeal from the United States District Court for the District of Nevada, David

Warner Hagen, District Judge, Presiding. D.C. No. CV-99-00547-DWH.

Before SCHROEDER, Chief Judge, D.W. NELSON and REINHARDT, Circuit Judges.

OPINION

PER CURIAM.

Two environmental organizations, The Wilderness Society and Great Old Broads for Wilderness, appeal the denial of their motion to intervene as of right in a suit between the United States, Elko County, Nevada, and a private defendant over the status of a road on U.S. Forest Service land. The appellants sought to intervene to object to a proposed settlement agreement, and they filed their intervention petition soon after the proposed agreement was made public on March 2, 2001. The district court denied the motion on timeliness grounds because the suit had been pending for more than eighteen months. We have jurisdiction under 28 U.S.C. § 1291. Southwest Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir.2001). We now reverse, because the interveners acted promptly after they had notice that the government may not have adequately represented their interests in negotiating the settlement, and they were entitled to rely on the presumption of adequate representation by the government prior to that time. See, e.g., Forest Conservation Council v. U.S. Forest Svc., 66 F.3d 1489, 1499 (9th Cir.1995).

In October 1999, the Forest Service sued representatives of a citizens group, seeking declaratory and injunctive relief to stop them from trespassing on Forest Service land to restore a washed-out road. The road in question, the South Canyon Road in Elko County, Nevada, is adjacent to a river populated by Bull Trout, a threatened species listed on the Endangered Species list. In November 1999, the district court joined Elko County as a party defendant, because it claimed rights to restore the road. The court sent the parties to mediation conducted by a private mediator, which the parties agreed would be confidential.

The parties returned to court after months of unsuccessful negotiations, and the district court ordered further confidential settlement proceedings, this time before a Magistrate Judge. On March 2, 2001, the parties notified the court that they had reached a tentative agreement, and the court lifted the confidentiality order covering the mediation proceedings so that the agreement could be publicly disseminated. The United States agreed that it would not contest that Elko County had a right of way to the road, but did not waive its authority to manage federal lands and natural resources in accordance with federal environmental laws. The defendants agreed that they would not do any work on the road without receiving prior approval from the Forest Service and that they would comply with federal environmental laws.

The Wilderness Society and Great Old Broads for Wilderness, citizens groups devoted to preserving wilderness and wildlife in public lands, moved to intervene as plaintiffs on March 30, 2001, asserting that the proposed settlement agreement improperly ceded a property interest in the road to the County of Elko, thereby substantially diminishing the environmental protections for the adjacent wilderness areas. The district court approved the settlement, denied the motion to intervene as untimely, and entered a final order. The Wilderness Society and Great Old Broads for Wilderness appealed.

We review for abuse of discretion a district court's determination that an application for intervention is untimely. Officers for Justice v. Civil Svc. Comm'n of the City & County of San Francisco, 934 F.2d 1092, 1095 (9th Cir.1991). Timeliness is measured by reference to "(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for the length of the delay." County of Orange v. Air Calif., 799 F.2d 535, 537 (9th Cir.1986).

When the district court held that appellants' motion to intervene was untimely, it noted that they had filed the motion eighteen months after the complaint was filed, after six months of court-ordered mediation, and four days of settlement negotiations in front of a magistrate. The court also concluded that intervention would...