Wolfsen Land & Cattle Co. v. Pac. Coast Fed'n of Fishermen's Assocs.

• Decision Date: 21 September 2012
• Docket Number: No. 2011–5113.,2011–5113.
• Citation: 695 F.3d 1310
• Court: U.S. Court of Appeals — Federal Circuit
• Parties: WOLFSEN LAND & CATTLE COMPANY, Turner Island Farms, Inc., West Turner Island Ranch, Lone Willow Ranch, Donald C. Skinner, Lynn W. Skinner, Lawrence Scott Skinner, Thomas Clay Skinner, Laurel Lynn Skinner, Stacie L. Skinner–Hanson, Lawrence John Wolfsen, Mew Ventures, Robert Mueller, and Joanne Mueller, Plaintiffs–Appellees, v. PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, Movant–Appellant, and Natural Resources Defense Council, Movant–Appellant, v. United States, Defendant.

695 F.3d 1310

WOLFSEN LAND & CATTLE COMPANY, Turner Island Farms, Inc., West Turner Island Ranch, Lone Willow Ranch, Donald C. Skinner, Lynn W. Skinner, Lawrence Scott Skinner, Thomas Clay Skinner, Laurel Lynn Skinner, Stacie L. Skinner–Hanson, Lawrence John Wolfsen, Mew Ventures, Robert Mueller, and Joanne Mueller, Plaintiffs–Appellees,

v.PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, Movant–Appellant,andNatural Resources Defense Council, Movant–Appellant,

v.United States, Defendant.

No. 2011–5113.

United States Court of Appeals,Federal Circuit.

Sept. 21, 2012.

Roger J. Marzulla, Marzulla Law, LLC, of Washington, DC, argued for plaintiff-appellee. With him on the brief was Nancie G. Marzulla.

Michael E. Wall, Natural Resources Defense Council, of San Francisco, CA, argued for movant-appellant. On the brief were Jennifer A. Sorenson. Of counsel on the brief was Philip F. Atkins–Pattenson, Sheppard Mullin Richter & Hampton LLP, of San Francisco, CA. Of counsel were John D. Echeverria, of South Royalton, Vermont, and Katherine S. Poole, Natural Resources Defense Council, of San Francisco, CA.

Before DYK, CLEVENGER, and REYNA, Circuit Judges.

Opinion for the court filed by Circuit Judge CLEVENGER.

Concurring opinion filed by Circuit Judge REYNA.

CLEVENGER, Circuit Judge.

This is a takings case arising from the government's releases of water from a dam in central California. Downstream property owners sued in the Court of Federal Claims, alleging that the releases unlawfully impaired their property rights in the water and inundated their land.

The government had released the water in accordance with a consent order entered by a district court and expressly approved by Congress. The consent order was the result of environmental litigation pursued over a number of years by certain groups interested in the ecological fate of the river. After the present lawsuit was filed, two of these groups moved to intervene as of right, arguing that this case implicated their interests. The Court of Federal Claims denied their motion, finding that the groups' interests were sufficiently aligned with the government's as to create no foundation for intervention. Wolfsen Land & Cattle Co. v. United States, 98 Fed.Cl. 507 (2011) ( “Fed.Cl. Op.”). We affirm.

I

A

This case's story started in 1942, when the U.S. Bureau of Reclamation dammed the upper San Joaquin River near Friant, California. Friant Dam, which still operates today, generates electricity and collects water for agriculture. But it also caused portions of the river below to dry up, leading to the extermination of Chinook salmon and other species from areas they had previously occupied, as well as other ecological consequences.

In 1988, a group of plaintiffs sued the federal government over the dam's operation. The Pacific Coast Federation of Fishermen's Associations and the Natural Resources Defense Council (collectively, “PCFFA”) were among them. They claimed that the dam's operation contravened various state and federal environmental protection laws. For the next eighteen years, the parties litigated in the district court for the Eastern District of California.

In 2006, they finally reached a settlement. The agreement obliged the government to release water from the dam for the purpose of restoring and maintaining fish populations downstream, while continuing to support the surrounding landowners who had come to depend on the water the dam collected. See Stipulation of Settlement, Natural Res. Def. Council v. Rodgers, No. CIV SS–88–1658 (E.D.Cal. Sept. 16, 2006), ECF No. 1341 (“Litigation Settlement”). The Litigation Settlement also bound the signatories to request implementing legislation from Congress, as some contemplated actions could not be taken without legislative authority. Id. ¶ 8. This was done, and Congress subsequently passed the San Joaquin River Restoration Settlement Act, Pub. L. No. 111–11, §§ 10001–10011, 123 Stat. 1349 (2009) (“Settlement Act”), which authorized and directed the Secretary of the Interior to implement the Litigation Settlement.

All this having been done, in October 2009 the Bureau of Reclamation initiated the first release of water from the dam. Releases have continued since, in accordance with the Litigation Settlement and the Settlement Act.

B

Those releases gave rise to the present case. In August of 2010, Wolfsen Land & Cattle Co., along with other owners of land downstream of Friant Dam (collectively, “Wolfsen”), sued the government for taking of property. Wolfsen argued that the releases impaired its protectable interest in the released water. It also contended that its land had been damaged as a result of inundation by the released water. Wolfsen sought compensation and legal expenses.

PCFFA moved to intervene as of right under Court of Federal Claims Rule 24(a)(2). It argued that the case implicated its interest in full performance of the Litigation Settlement and under the Settlement Act. PCFFA presented several lines of reasoning to justify its motion, but chief was this: judgment for Wolfsen could involve a ruling that Wolfsen and others in its position had a protectable property interest in the water released past Friant Dam. Such an outcome, said PCFFA, would substantially threaten the government's ability to make the water releases contemplated by the Litigation Settlement and the Settlement Act. As a beneficiary of those instruments, PCFFA claimed a right to participate in proceedings before the Court of Federal Claims.

Wolfsen opposed PCFFA's motion; the government neither supported nor opposed. The Court of Federal Claims denied the motion. Fed.Cl. Op.

PCFFA appealed to this court. Denial of a motion to intervene is a final judgment and immediately appealable. Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 377, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987). This court has jurisdiction over final judgments of the Court of Federal Claims. 28 U.S.C. § 1295(a)(3).

II

This court has not previously identified the standard to be applied when reviewing a trial court's denial of a motion to intervene as of right. PCFFA argues for de novo review, while Wolfsen urges review for abuse of discretion. Both sides cite authority from the regional circuits, which are split on the question, though slightly more courts favor de novo review. Compare, e.g., United States v. Aerojet Gen. Corp., 606 F.3d 1142, 1148 (9th Cir.2010) (applying de novo review), United States v. Albert Inv. Co., 585 F.3d 1386, 1390 (10th Cir.2009) (same), S. Dakota v. Ubbelohde, 330 F.3d 1014, 1024 (8th Cir.2003) (same), Grutter v. Bollinger, 188 F.3d 394, 398 (6th Cir.1999) (same), Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir.1994) (same), and Nissei Sangyo Am., Ltd. v. United States, 31 F.3d 435, 438 (7th Cir.1994) (same), with Geiger v. Foley Hoag LLP Ret. Plan, 521 F.3d 60, 64 (1st Cir.2008) (applying abuse of discretion review), Person v. N.Y. State Bd. of Elections, 467 F.3d 141, 144 (2d Cir.2006) (same), Brody v. Spang, 957 F.2d 1108, 1115 (3d Cir.1992) (same), and In re Sierra Club, 945 F.2d 776, 779 (4th Cir.1991) (same).

We find it unnecessary to reach this question, as we see no error in the Court of Federal Claims' judgment. Cf. Am. Mar. Transp., Inc. v. United States, 870 F.2d 1559, 1561 (Fed.Cir.1989) (finding no need to reach this issue in similar circumstances). We would affirm under both proposed standards of review. Because the question of the standard to apply is non-dispositive, we need not address it.

III

A

The Court of Federal Claims' rule concerning intervention as of right states:

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:

...

(2) 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.

Fed. Cl. R. 24(a).

These requirements are construed in favor of intervention. Am. Mar. Transp., 870 F.2d at 1561. The rule sets out a four-part test. First, the motion must be timely. Second, the movant must claim some interest in the property affected by the case. This interest must be “legally protectable”—merely economic interests will not suffice. Id. at 1562. Third, that interest's relationship to the litigation must be “of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.” Id. at 1561. Fourth, and most importantly for this case, the movant must demonstrate that said interest is not adequately addressed by the government's participation. Id. at 1560.

B

In this appeal, timeliness is not disputed. But in denying PCFFA's motion the Court of Federal Claims held that PCFFA could not satisfy Rule 24(a)(2)'s other three requirements.

First, the court held that PCFFA had failed to show a direct, non-contingent interest in this case. Fed.Cl. Op., 98 Fed.Cl. at 512–15. It reasoned that the only direct result of judgment for Wolfsen in this case would be the government paying money damages. Any collateral rulings (i.e., a determination that Wolfsen had a protectable interest in the released water) would implicate PCFFA only secondarily, and thus were not the kind of interests protected by the rule. Because we resolve this appeal on other grounds, we need not reach this aspect of the Court of Federal Claims' reasoning.

Second, the court held that even if PCFFA had alleged a protectable interest, the interest did not relate to this case in such a way that failure to permit intervention would impede PCFFA's ability to protect itself. The court pointed out that if, in the aftermath of judgment in this case, the government failed to meet its obligations to PCFFA, PCFFA could seek relief in district court. Id. at 515. Again, because we resolve this appeal on other grounds we...