Utah Assoc. of Counties v. Clinton

• Decision Date: 10 July 2001
• Docket Number: No. 00-4143,00-4143
• Citation: 255 F.3d 1246
• Parties: (10th Cir. 2001) UTAH ASSOCIATION OF COUNTIES, on behalf of its members; MOUNTAIN STATES LEGAL FOUNDATION, Plaintiffs-Appellees, v. WILLIAM JEFFERSON CLINTON, in his official capacity as President of the United States; UNITED STATES OF AMERICA; KATHLEEN A MCGINTY, in her official capacity as Chair of the Council on Environmental Quality; THE COUNCIL ON ENVIRONMENTAL QUALITY; BRUCE BABBITT, in his official capacity as Secretary of the Interior; DEPARTMENT OF INTERIOR; BUREAU OF LAND MANAGEMENT; SYLVIA BACA, in her official capacity as Interim Director of the Bureau of Land Management, Defendants, SOUTHERN UTAH WILDERNESS ALLIANCE; THE WILDERNESS SOCIETY; THE GRAND CANYON TRUST; ESCALANTE CANYON OUTFITTERS, INC.; BOULDER MOUNTAIN LODGE; ESCALANTE'S GRAND STAIRCASE B&B INN, INC., Movants-Appellants
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1246

255 F.3d 1246 (10th Cir. 2001)

UTAH ASSOCIATION OF COUNTIES, on behalf of its members; MOUNTAIN STATES LEGAL FOUNDATION, Plaintiffs-Appellees, v. WILLIAM JEFFERSON CLINTON, in his official capacity as President of the United States; UNITED STATES OF AMERICA; KATHLEEN A MCGINTY, in her official capacity as Chair of the Council on Environmental Quality; THE COUNCIL ON ENVIRONMENTAL QUALITY; BRUCE BABBITT, in his official capacity as Secretary of the Interior; DEPARTMENT OF INTERIOR; BUREAU OF LAND MANAGEMENT; SYLVIA BACA, in her official capacity as Interim Director of the Bureau of Land Management, Defendants, SOUTHERN UTAH WILDERNESS ALLIANCE; THE WILDERNESS SOCIETY; THE GRAND CANYON TRUST; ESCALANTE CANYON OUTFITTERS, INC.; BOULDER MOUNTAIN LODGE; ESCALANTE'S GRAND STAIRCASE B&B INN, INC., Movants-Appellants.

No. 00-4143

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 10, 2001

Appeal from the United States District Court for the District of Utah (D.C. No. 97-CV-479) [Copyrighted Material Omitted] Brian B. O'Neill of Faegre & Benson LLP, Minneapolis, Minnesota (Richard A. Duncan and William L. Underwood of Faegre & Benson LLP, Minneapolis, Minnesota; Heidi J. McIntosh and Stephen H.M. Bloch of Southern Utah Wilderness Alliance, Salt Lake City, Utah, with him on the briefs), for Movants-Appellants.

Susan Amanda Koehler of Mountain States Legal Foundation, Denver, Colorado; and Michael B. Marinovich of C.E. Brooks & Associates, P.C., Denver, Colorado (William Perry Pendley and David Andrew Wight of Mountain States Legal Foundation, Denver, Colorado; and Constance E. Brooks of C.E. Brooks & Associates, P.C., with them on the brief) for Plaintiffs-Appellees.

Before SEYMOUR,McKAY and BRORBY, Circuit Judges.

SEYMOUR, Circuit Judge.

The Southern Utah Wilderness Alliance, The Wilderness Society, The Grand Canyon Trust, Escalante Canyon Outfitters, Inc., Escalante's Grand Staircase B&B/Inn, and Boulder Mountain Lodge sought leave to intervene in this action by the Utah Association of Counties to enjoin and have declared illegal the Presidential Proclamation establishing the Grand Staircase Escalante National Monument. The district court denied the motion to intervene. We reverse.

I. Background

On September 18, 1996, President Clinton issued Presidential Proclamation Number 6920 establishing the Grand Staircase-Escalante National Monument and reserving approximately 1.7 million acres of federal land in southern Utah from public entry under the public land laws. The Proclamation describes the land at issue as follows:

The Grand Staircase-Escalante National Monument's vast and austere landscape embraces a spectacular array of scientific and historic resources. This high, rugged, and remote region, where bold plateaus and multi-hued cliffs run for distances that defy human perspective, was the last place in the continental United States to be mapped. Even today, this unspoiled natural area remains a frontier, a quality that greatly enhances the monument's value for scientific study. The monument has a long and dignified human history: it is a place where one can see how nature shapes human endeavors in the American West, where distance and aridity have been pitted against our dreams and courage. The monument presents exemplary opportunities for geologists, paleontologists, archeologists, historians, and biologists.

Proclamation No. 6920, 61 Fed. Reg. 50223 (Sept. 18, 1996).

On June 23, 1997, the Utah Association of Counties filed a complaint for injunctive and declaratory relief against the President and various federal officials, alleging that the creation of the monument was an illegal attempt by the Secretary of the Interior to prevent a proposed underground coal mine at Smokey Hollow, owned by Andalex Resources Corporation and located within the monument. The complaint sought to have the Presidential Proclamation set aside on the grounds that it violated the separation of powers doctrine, exceeded powers vested in the president by the Antiquities Act of 1906, 16 U.S.C. 431, and failed to comply with the National Environmental Policy Act, 42 U.S.C. 4332 (NEPA), the Federal Land Policy and Management Act, 43 U.S.C. 1701 et seq. (FLPMA), and the Administrative Procedure Act, 5 U.S.C. 701-706 (APA). On December 15, 1997, the Mountain States Legal Foundation filed its first amended complaint, seeking the same relief against the same defendants and asserting virtually the same alleged illegalities. The two cases were consolidated later that month.

On March 21, 2000, the intervenors sought leave "to represent the interests of public interest organizations and individuals whose goals include protecting the nation's public lands and assuring their continued integrity in perpetuity." Aplt. App. at 85. The district court held a hearing on the motion and denied it, stating that

[t]his case is not about the environment, it is not about the intervenors' property rights or interests in the monument in question. It is not about that. It is about the legality of the president's action in creating the monument. The allegations are that he violated several statutes[,] primarily the Antiquities Act[,] by the way this monument was created. This issue is adequately represented by the government.

Id. at 153.

The intervenors appeal,¹ arguing the district court erred in its application of the standards governing intervention as of right under Fed. R. Civ. P. 24(a)(2) and under a proper assessment of the relevant factors they are entitled to intervene as a matter of right. Alternatively, the intervenors contend the district court abused its discretion in failing to grant permissive intervention under Rule 24(b). Plaintiffs respond that the application for intervention failed to meet any of the requirements for intervention as of right, asserting (1) the application was not timely and plaintiffs would therefore be prejudiced by allowing intervention, (2) the intervenors' interests do not meet the requirements for intervention, (3) the intervenors have not shown those interests would be subject to impairment, and (4) their interests would be adequately represented by the government in any event.

Intervention is authorized by Rule 24, which provides in pertinent 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).

Accordingly, an applicant may intervene as of right if: (1) the application is "timely"; (2) "the applicant claims an interest relating to the property or transaction which is the subject of the action"; (3) the applicant's interest "may as a practical matter" be "impair[ed] or impede[d]"; and (4) "the applicant's interest is [not] adequately represented by existing parties."

Coalition of Arizona/New Mexico Counties v. Dep't of Interior, 100 F.3d 837, 840 (10th Cir. 1996) (quoting Fed. R. Civ. P. 24(a)(2)). This circuit follows "a somewhat liberal line in allowing intervention." Id. at 841 (quoting Nat'l Farm Lines v. Interstate Commerce Comm'n, 564 F.2d 381, 384 (10th Cir. 1977)). We generally review a district court's ruling on the timeliness of a motion to intervene under an abuse of discretion standard. Id. at 840. When the court makes no findings regarding timeliness, however, we review this factor de novo. See Stupak-Thrall v. Glickman, 226 F.3d 467, 472 n.5 (6th Cir. 2000); Sierra Club v. Espy, 18 F.3d 1202, 1205 n.2 (5th Cir. 1994). We review de novo the court's rulings on the three remaining requirements of Rule 24(a)(2). See Coalition, 100 F.3d at 840.

II. Timeliness

We turn first to the issue of timeliness. As mentioned above, the complaints in this case were filed in 1997 and the motion for leave to intervene was not filed until 2000. Plaintiffs contend the application did not meet the timeliness requirement of Rule 24(a)(2).

At the beginning of the hearing on the application to intervene, the district court stated:

...you are late. You're two and a half years late. This case has been kind of slow going anyway with the briefing and discovery, and I am sure it is for valid reasons, but it has been a fairly slow process anyway. It is kind of late to be adding parties.

Aplts. App. at 131. In response, counsel for the intervenors contended plaintiffs had not identified any prejudice arising from the length of time between the filing of the complaints and the motion to intervene; promised the intervenors would agree to be bound by whatever discovery schedule was already in place, would not seek additional discovery, and would not file a counterclaim or raise defenses not raised by the government; and pointed out that while some discovery had occurred, not a lot had happened in the case. When counsel for the Utah Association of Counties subsequently proposed to address the timeliness issue, the district court directed him to move on to another matter. Shortly thereafter, in ruling from the bench, the court did not mention the timeliness factor, basing its denial instead on other grounds. The court's written order denying intervention likewise does not refer to the matter of timeliness. While the court initially observed that the application was "late," we conclude the court simply made no findings regarding timeliness. We therefore review this question de novo. See Stupak-Thrall, 226 F.3d at 472 n.5 (when district court makes no findings on timeliness, court of appeals does not remand but applies de novo level of review).

The timeliness of a motion to intervene is assessed "in light of all the circumstances, including the length of time since the applicant knew of his interest...