F I L E D
United States Court of Appeals
Tenth Circuit
JUL 10 2001
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
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 No. 00-4143
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.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 97-CV-479)
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.
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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
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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.
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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.
“An order denying intervention is final and subject to immediate review if
1
it prevents the applicant from becoming a party to an action.” Coalition of
Arizona/New Mexico Counties v. Dep’t of the Interior, 100 F.3d 837, 839 (10th
Cir. 1996).
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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
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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
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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 in the case, prejudice to the existing parties, prejudice to the applicant,
and the existence of any unusual circumstances.” Sanguine, Ltd. v. United States
Dep’t of Interior, 736 F.2d 1416, 1418 (10th Cir. 1984) (citations omitted). “The
analysis is contextual; absolute measures of timeliness should be ignored.” Sierra
Club v. Espy, 18 F.3d at 1205; see also Stupak-Thrall, 226 F.3d at 475 (absolute
measure of time between filing of the complaint and the motion to intervene is
one of least important circumstances). “The requirement of timeliness is not a
tool of retribution to punish the tardy would-be intervenor, but rather a guard
against prejudicing the original parties by the failure to apply sooner. Federal
courts should allow intervention ‘where no one would be hurt and greater justice
could be attained.’” Sierra Club v. Espy, 18 F.3d at 1205 (citation omitted); see
also 7C C HARLES A LAN W RIGHT , A RTHUR R. M ILLER & M ARY K AY K ANE ,
F EDERAL P RACTICE & P ROCEDURE § 1916, at 425-26 (2d ed. 1986) (“The
requirement of timeliness is not a means of punishment for the dilatory and the
mere lapse of time by itself does not make an application untimely.” (footnote
omitted)).
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On appeal, plaintiffs maintain that allowing intervention under the
circumstances would prejudice them because the case is ready for disposition.
The record indicates, to the contrary, that the case is far from ready for final
disposition; no scheduling order has been issued, no trial date set, and no cut-off
date for motions set. According to the district court docket, all that had occurred
prior to the motion to intervene were document discovery, discovery disputes, and
motions by defendants seeking dismissal on jurisdictional grounds. 2
Plaintiffs also assert that they would be prejudiced by allowing intervention
because adding additional parties would double the work load and add issues.
These factors, however, are a function of intervention itself rather than the timing
of the motion to intervene. The prejudice prong of the timeliness inquiry
“measures prejudice caused by the intervenors’ delay–not by the intervention
itself.” Ruiz v. Estelle, 161 F.3d 814, 828 (5th Cir. 1998).
In view of the relatively early stage of the litigation and the lack of
prejudice to plaintiffs flowing from the length of time between the initiation of
the proceedings and the motion to intervene, 3 we conclude the request for
2
The intervenors assert on appeal that they waited to file their motion to
intervene until resolution of the government’s dispositive motion in order to
ascertain whether there would ultimately be a case in which to intervene. “Courts
should discourage premature intervention that wastes judicial resources.” Sierra
Club v. Espy, 18 F.3d 1202, 1206 (5th Cir. 1994). In our view, this circumstance
is an additional factor indicating the motion to intervene was not untimely.
3
We note the government has taken no position on the motion to intervene.
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intervention is timely.
III
The Intervenors’ Interest
Under Rule 24(a)(2), the intervenors must “claim[] an interest relating to
the property or transaction which is the subject of the action.” The property that
is the subject of plaintiffs’ lawsuit is the monument itself. The intervenors claim
they have an interest in the continued existence of the monument and its
reservation from public entry, both on the basis of their financial stake in the
tourism the monument has created and on the basis of their desire to further their
environmental and conservationist goals by preserving the undeveloped nature of
the lands encompassed by the monument. They point out that they were “vocal
and outspoken champions and advocates” for the creation of the monument, they
have regularly commented on and participated in the government’s monument
land management plan, and they regularly visit the monument for aesthetic,
scientific and recreational purposes. Br. of Aplts. at 19-20.
We recently addressed the nature of the interest an applicant for
intervention must demonstrate in Coalition of Arizona/New Mexico Counties, 100
F.3d at 840-44. In that case, a commercial wildlife photographer, Dr. Robin
Silver, who had a particular interest in the Mexican Spotted Owl, sought to
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intervene in a suit brought against the United States Fish and Wildlife Service
challenging the Service’s decision to protect the Owl under the Endangered
Species Act. Dr. Silver had studied and photographed the Owl in the wild and
had been instrumental in the Service’s initial decision to protect the Owl under
the Act.
In addressing whether Dr. Silver had the requisite interest to intervene as of
right, we observed that while “[t]he contours of the interest requirement have not
been clearly defined,” in this circuit the interest must be “direct, substantial, and
legally protectable.” Id. at 840 (quoting In re Kaiser Steel Corp., 998 F.2d 783,
791 (10th Cir. 1993)). We further pointed out that the inquiry is “highly fact-
specific,” and that “the ‘interest’ test is primarily a practical guide to disposing of
lawsuits by involving as many apparently concerned persons as is compatible with
efficiency and due process.” Id. at 841 (citations omitted). We concluded that
“Dr. Silver’s involvement with the Owl in the wild and his persistent record of
advocacy for its protection amounts to a direct and substantial interest . . . for the
purpose of intervention as of right.” Id. In reaching this conclusion, we drew
support from the Supreme Court’s statement that “the desire to use or observe an
animal species, even for purely esthetic purposes, is undeniably a cognizable
interest for purposes of standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
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562-63 (1992). 4 We cited numerous cases in which environmental organizations
and other special interest groups have been held to have a sufficient interest for
purposes of intervention as of right in cases in which their particular interests
were threatened. See Coalition, 100 F.3d at 842-43 (citing cases). We also held
that Dr. Silver’s interest was legally protectable as evidenced by his efforts to
ensure the Owl’s protection under the Endangered Species Act. Id. at 841.
In our judgment, the circumstances in Coalition are sufficiently analogous
to those here to indicate persuasively that the intervenors have the requisite
interest. In addition to Coalition and the authority upon which it relies, we find
persuasive those opinions holding that organizations whose purpose is the
protection and conservation of wildlife and its habitat have a protectable interest
in litigation that threatens those goals. See, e.g., Mausolf v. Babbitt, 85 F.3d
1295, 1302 (8th Cir. 1996) (conservation groups seeking to preserve wilderness
nature of national park had requisite interest in lawsuit seeking to undo
snowmobiling restrictions); Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527-
28 (9th Cir. 1983) (National Audubon Society had sufficient interest in lawsuit
challenging withdrawal of federal land to create bird conservation area).
4
As we pointed out in Coalition, because Article III standing requirements
are more stringent than those for intervention under Rule 24(a), a determination
that intervenors have Article III standing compels the conclusion that they have
the requisite interest under the rule. Coalition, 100 F.3d at 842 (citing Yniguez v.
Arizona, 939 F.2d 727, 735 (9th Cir. 1991)).
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In ruling to the contrary, the district court stated 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 about the legality of the president’s action
in creating the monument.” Aplt. App. at 153. Plaintiffs rely on the district
court’s statements in maintaining the intervenors do not meet either the interest or
impairment prong of the Rule 24(a)(2) inquiry. Both the district court and
plaintiffs have simply misperceived the interest inquiry mandated by the rule.
The interest of the intervenor is not measured by the particular issue before the
court but is instead measured by whether the interest the intervenor claims is
related to the property that is the subject of the action. See Sagebrush Rebellion,
713 F.2d at 528. Plaintiffs challenge the creation of the monument itself; it is
thus beyond dispute that the subject of the action is the monument. The
intervenors claim an interest relating to the monument and its continued existence
by virtue of their support of its creation, their goal of vindicating their
conservationist vision through its preservation, their use of the monument in
pursuit of that vision, and their economic stake in its continued existence. Under
the authority discussed above, we conclude the intervenors’ interest is sufficiently
related to the subject of the action to support intervention as of right.
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IV
Impairment of Interest
Rule 24(a)(2) also requires the intervenors to demonstrate that the
disposition of this action may as a practical matter impair or impede their ability
to protect their interest. This court has pointed out that “the question of
impairment is not separate from the question of existence of an interest.” Natural
Res. Def. Council v. United States Nuclear Regulatory Comm’n, 578 F.2d 1341,
1345 (10th Cir. 1978). Moreover, “the Rule refers to impairment ‘as a practical
matter.’ Thus, the court is not limited to consequences of a strictly legal nature.”
Id. “‘To satisfy this element of the intervention test, a would-be intervenor must
show only that impairment of its substantial legal interest is possible if
intervention is denied. This burden is minimal.’” Grutter v. Bollinger, 188 F.3d
394, 399 (6th Cir. 1999) (quoting Michigan State AFL-CIO v. Miller, 103 F.3d
1240, 1247 (6th Cir. 1997)).
The intervenors argue on appeal that their interest in the preservation and
protection of the monument would be significantly impaired by an adverse
decision setting aside the creation of the monument. They point out that under
the land use plan in effect before the monument was established, much of the land
it now encompasses was open to unrestricted off-road travel, and that as a result
the land itself was being degraded and its wilderness character was deteriorating.
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The monument management plan, in which the intervenors have had input,
significantly restricts off-road travel and reserves the land from public entry. In
the intervenors’ view the management plan has enhanced the land with respect to
their scientific, recreational, and aesthetic interests in the monument. The
intervenors contend these environmental and conservationist interests would be
impaired were the monument to lose its protected status and previous land use
plans to be reinstated. The intervenors also state that many of them operate
businesses that have benefitted from the tourism the monument has generated, and
that these economic interests would be impaired should the monument to cease to
exist.
Plaintiffs contend the intervenors have failed to make the requisite showing
because their allegations of impairment are speculative and unsupported. 5
Plaintiffs argue in addition that even if the monument management plan were set
aside, pre-existing land use plans would have to be revised, providing the
intervenors with an opportunity to protect their interests in those proceedings.
Plaintiffs make the ludicrous argument that the intervenors cannot assert
5
their interest would be impaired by the invalidation of the monument’s
management plan because the lawsuit does not challenge the management plan per
se. It would appear obvious that if the Presidential Order creating the monument
were to be held invalid and the monument were to cease to exist as such, its
management plan would cease to exist as well. As we discuss above, the potential
invalidation of the monument and the plan under which it is maintained
demonstrate that the disposition of this action “may as a practical matter impair or
impede” the intervenors’ ability to protect their interest in the monument itself.
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We find plaintiffs’ arguments unpersuasive.
It is undisputed that the management plan presently in place, which
reserves the land from public entry and restricts off-road travel, provides greater
protection for the intervenors’ interests than prior plans. Indeed, the Utah
Association of Counties brought this lawsuit expressly because they believed
creation of the monument improperly thwarted the operation of an underground
coal mine that would presumably have proceeded under previous plans. It is thus
not speculative to conclude that the protection accorded the intervenors’ interest
in preserving the wilderness nature of the monument land would be diminished if
the land were to lose its designation as a national monument.
Plaintiffs also contend the intervenors’ interests are not impaired because
they would be able to participate in the formulation of a revised land use plan for
the area should it lose its monument status. Again we disagree. “[W]here a
proposed intervenor’s interest will be prejudiced if it does not participate in the
main action, the mere availability of alternative forums is not sufficient to justify
denial of a motion to intervene.” Commodity Futures Trading Comm’n v.
Heritage Capital Advisory Serv., 736 F.2d 384, 387 (7th Cir. 1984). Moreover,
the possibility of impairment is not eliminated by the intervenors’ opportunity to
participate in the formulation of a revised land use plan that, at most, would not
provide the level of protection to the intervenors’ interests that the current plan
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offers.
Finally, as the intervenors point out, this court has held that “the stare
decisis effect of the district court’s judgment is sufficient impairment for
intervention under Rule 24(a)(2).” See Coalition, 100 F.3d at 844. The
intervenors argue that a judgment in favor of plaintiffs in this case would impair
the intervenors’ interest in promoting their environmental protection goals by
seeking presidential designation of other national monuments in the future.
In light of these considerations, we conclude the intervenors have
demonstrated that their interests may be impaired or impeded by the disposition of
this lawsuit.
V
Adequacy of Representation
The intervenors have shown that their motion to intervene was timely, they
claim an interest relating to the property which is the subject of the action, and as
a practical matter their ability to protect that interest may be impaired or impeded
by the disposition of the action. Under Rule 24(a)(2), they are therefore entitled
to intervene as of right unless that interest “is adequately represented by existing
parties.” “Although an applicant for intervention as of right bears the burden of
showing inadequate representation, that burden is the ‘minimal’ one of showing
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that representation ‘may’ be inadequate.” Sanguine, 736 F.2d at 1419 (quoting
Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)); see also
Coalition, 100 F.3d at 844. The possibility that the interests of the applicant and
the parties may diverge “need not be great” in order to satisfy this minimal
burden. Natural Res. Def. Council v. United States Nuclear Reg. Comm’n, 578
F.2d 1341, 1346 (10th Cir. 1978).
The district court stated without analysis that the government would
adequately represent the interests of the intervenors in defending the legality of
President Clinton’s designation of the monument. On appeal, plaintiffs argue the
district court was correct, pointing out that the interests of the government and the
intervenors are identical and that the intervenors have not articulated any
arguments they wish to make that the government could not make. In response,
the intervenors assert that under this court’s authority, an intervenor need only
show the possibility of inadequate representation. The intervenors rely on cases
from this and other circuits holding that this showing is easily made when the
party upon which the intervenor must rely is the government, whose obligation is
to represent not only the interest of the intervenor but the public interest
generally, and who may not view that interest as coextensive with the intervenor’s
particular interest.
A review of the authority reveals that the intervenors’ argument has merit.
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In National Farm Lines v. Interstate Commerce Comm’n, 564 F.2d 381 (10th Cir.
1977), the plaintiff brought suit against a federal agency alleging that a section of
the Interstate Commerce Act and regulations promulgated under the Act were
unconstitutional. Common carriers protected by the Act sought to intervene on
the basis that a judgment invalidating the Act and regulations would impair the
carriers’ interest by removing the Act’s protection, thereby subjecting them to
highly injurious unregulated competition. In holding that the applicants had
shown inadequacy of representation, we pointed to authority stressing that the
showing is met when the applicant for intervention has expertise the government
may not have. We also looked to cases holding that government representation
may not adequately represent private interests because the government protects
the public interest.
We have here also the familiar situation in which the governmental
agency is seeking to protect not only the interest of the public but
also the private interest of the petitioners in intervention, a task
which is on its face impossible. The cases correctly hold that this
kind of a conflict satisfies the minimal burden of showing
inadequacy of representation.
Id. at 384.
We followed National Farm Lines in Coalition, pointing out that in both
cases the federal agency sued “must represent the public interest, which may
differ from” the applicant’s particular interest. Coalition, 100 F.3d at 845.
Although we recognized in Coalition that a presumption of adequate
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representation arises when an applicant for intervention and an existing party
have the same ultimate objective in the litigation, see id. (quoting Northwest
Forest Res. Council v. Glickman, 82 F.3d 825, 838 (9th Cir. 1996)), we held this
presumption rebutted by the fact that the public interest the government is
obligated to represent may differ from the would-be intervenor’s particular
interest, see id. Our conclusion that government representation might prove to be
inadequate was also bolstered by cases from other circuits holding that an
intervenor’s interest would not be adequately represented by a government entity
that must represent the broader public interest. See id. (citing cases); see also
Mausolf, 85 F.3d at 1302-04 (“When managing and regulating public lands, to
avoid what economists call the ‘tragedy of the commons,’ the Government must
inevitably favor certain uses over others.”); Sierra Club v. Glickman, 82 F.3d 106,
110 (5th Cir. 1996) ( per curiam) (government representation of broad public
interest will not necessarily coincide with would-be intervenor’s narrower interest
even though they share common ground); Conservation Law Found. v.
Mosbacher, 966 F.2d 39, 44-45 (1st Cir. 1992) (“a governmental entity charged
by law with representing the public interest of its citizens might shirk its duty
were it to advance the narrower interest of a private entity”); In re Sierra Club,
945 F.2d 776, 779-80 (4th Cir. 1991) (although would-be intervenor and
government entity share objectives, entity not adequate representative due to
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obligation to represent interests of general public including those with conflicting
views).
Plaintiffs argue that National Farm Lines and Coalition are distinguishable
because in those cases the interest of the government and the applicants for
intervention did not coincide. They assert the interests are identical here because
both the government and the intervenors have the same objective–to sustain the
creation of the monument. As the above cases make clear, however, the
government’s representation of the public interest generally cannot be assumed to
be identical to the individual parochial interest of a particular member of the
public merely because both entities occupy the same posture in the litigation. In
litigating on behalf of the general public, the government is obligated to consider
a broad spectrum of views, many of which may conflict with the particular
interest of the would-be intervenor. “[E]ven the government cannot always
adequately represent conflicting interests at the same time.” Mausolf, 85 F.3d at
1303. This potential conflict exists even when the government is called upon to
defend against a claim which the would-be intervenor also wishes to contest.
Plaintiffs also maintain that, given the government’s past conduct in this
litigation, there is nothing to indicate it will not continue to vigorously represent
the interest of the intervenors in defending the creation of the monument.
However, “it is not realistic to assume that the agency’s programs will remain
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static or unaffected by unanticipated policy shifts.” Kleissler v. United States
Forest Serv., 157 F.3d 964, 974 (3d Cir. 1998). The government has taken no
position on the motion to intervene in this case. Its “silence on any intent to
defend the [intervenors’] special interests is deafening.” Conservation Law
Found., 966 F.2d at 44. We conclude that under the authority of this and other
circuits, the intervenors have met the minimal burden of showing that their
interests may not be adequately represented by the existing parties.
The order denying the motion to intervene under Rule 24(a)(2) is
VACATED and the matter is REMANDED to the district court with directions
that the application to intervene as of right be granted.
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