Since 1989, the 9th Circuit has held that no party may intervene on the side of the federal government when suits are brought which allege that the federal government did not comply with the National Environmental Policy Act (“NEPA”). Often, environmental groups bring these suits, but those using the public lands or public resources do not have the ability to intervene on the side of the government in order to protect their interests. On Friday, January 14, 2011, the 9th Circuit unanimously, in The Wilderness Society v. United States Forest Service, reversed the “none but the federal defendant rule,” thus allowing those with an interest in the outcome of the litigation to intervene to protect their rights.
Intervention in federal suits is of two types: 1) intervention as of right, and 2) permissive intervention. In most cases, intervention as of right is freely given so long as the intervenor satisfies a four-part test:
1. The motion to intervene is timely;
2. The applicant claims a “significantly protectable” interest relating to the property or transaction that is the subject of the litigation;
3. The applicant is situated so that disposition of the action may, as a practical matter, impair or impede the ability to protect that interest; and
4. The applicant’s interest is inadequately represented by the parties to the action.
Permissive intervention is within the discretion of the court.
For over twenty years, the 9th Circuit enforced a bright-line rule that parties could not intervene on the side of the federal government in NEPA violation cases. The rationale for the rule was that such parties could not have a “protectable interest” in the litigation because NEPA is a procedural statute which only binds the federal government. As the 9th Circuit has recognized in The Wilderness Society v. United States Forest Service, not only is the reasoning misguided – private parties may have “significantly protectable” interests in the underlying property or transaction, which should be decided on a case-by-case basis – but the policy behind the rule runs afoul of the intervention as of right statute, and arbitrarily treats NEPA cases different than other intervention cases.
The Wilderness Society v. United States Forest Service reinforces the fundamental policies behind intervention as of right: that practical and equitable considerations should be followed; the intervention rule should be broadly construed in favor of intervenors; a liberal intervention policy serves efficient resolution of the issues and broadened access to the courts; and the “interest” test serves to dispose of lawsuits by involving as many concerned persons as possible. Moving forward, intervenor applicants with interests protected under “some law,” who may suffer “practical impairment” of those interests as a result of the litigation, will have the chance to intervene in NEPA cases. This is a fundamental change from previous policy, and one which will grant property owners and natural resource users a voice in disputes which directly affect their rights and interests.
A full copy of The Wilderness Society v. United States Forest Service may be found at: http://caselaw.findlaw.com/us-9th-circuit/1552499.html.
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