FILED
United States Court of Appeals
Tenth Circuit
May 12, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
WILDEARTH GUARDIANS,
Plaintiff-Appellee,
v. No. 08-1479
NATIONAL PARK SERVICE,
Defendant.
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SAFARI CLUB INTERNATIONAL
FOUNDATION, and SAFARI CLUB
INTERNATIONAL,
Movants-Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 08-cv-608-MSK-CBS)
Anna M. Seidman (Douglas S. Burdin with her on the briefs), Safari Club
International, Washington, District of Columbia for Appellants.
Michael Ray Harris, Assistant Professor & Director, Environmental Law Clinic,
Sturm College of Law, University of Denver, Denver, Colorado for Appellee.
Before BRISCOE, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.
TYMKOVICH, Circuit Judge.
This appeal arises from WildEarth Guardians’ lawsuit challenging the
National Park Service’s proposal to reduce the elk population in Rocky Mountain
National Park. Safari Club International and Safari Club International Foundation
(referred to together as Safari Club) are two organizations representing hunting
and conservation interests which participated in the administrative proceedings
that led to the promulgation of the National Park Service’s elk population
management plan. Safari Club sought to intervene as of right in WildEarth’s
lawsuit as a party defendant pursuant to Federal Rule of Civil Procedure 24(a)(2),
or, in the alternative, to intervene permissively, under Federal Rule of Civil
Procedure 24(b).
The district court denied Safari Club’s motion to intervene and Safari Club
appealed. Because “[a]n order denying intervention is final and subject to
immediate review if it prevents the applicant from becoming a party to an action,”
Coal. of Ariz./N.M. Counties for Stable Econ. Growth v. DOI, 100 F.3d 837, 839
(10th Cir. 1996), we have jurisdiction under 28 U.S.C. § 1291.
We find the district court erred in ruling on Safari Club’s motion to
intervene. Safari Club demonstrated that it has a substantial interest in the
district court proceedings and that its interest might be impaired as a result of the
litigation. Further, on the record presented, we decline to determine whether any
of the existing parties can adequately represent Safari Club’s interest.
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Accordingly, we REVERSE and REMAND with instructions to consider whether
the National Park Service can adequately represent Safari Club’s interest. 1
I. Background
After a lengthy administrative proceeding, the National Park Service
(sometimes referred to as the NPS) established a plan to reduce the negative
effects of an oversized elk population at Rocky Mountain National Park
(sometimes referred to as RMNP). In developing the Rocky Mountain National
Park Elk and Vegetation Management Plan, the NPS considered five alternative
action plans: (1) no action; (2) immediate lethal removal; (3) gradual lethal
removal together with the use of fencing and distribution techniques; (4) fertility
control combined with gradual lethal removal; and (5) lethal removal coupled
with the release of predatory, sterile gray wolves.
In accordance with required administrative and environmental procedures,
the NPS adopted the third alternative elk management plan— combining gradual
lethal removal, fencing, and dispersal. This plan calls for “NPS Staff and
authorized agents” to lethally reduce, i.e., “cull,” the elk over time. Under the
plan, “authorized agents” can include “qualified volunteers.” The plan requires
that all individuals participating in culling activities be certified in firearms
training, be specially trained in wildlife culling, and pass a proficiency test.
1
Because we reverse the district court’s decision and remand the case for
further consideration, we need not address the district court’s denial of permissive
intervention at this juncture.
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Safari Club supports and advocates the conservation and management of
wildlife, and promotes using hunting, among other things, as a conservation and
management tool. The group is active nationally in efforts to conserve and
manage wildlife, including the gray wolf. The organization’s members enjoy
recreational activities, including hunting, in areas near RMNP. While the NPS
was considering the alternative action plans, Safari Club submitted written
comments supportive of managing wildlife generally and at RMNP specifically,
controlling the park’s elk population, and using volunteers to carry out culling
activities. Following the NPS’s selection of the third action plan, several Safari
Club members volunteered as “authorized agents” to participate in elk culling at
RMNP.
After the NPS announced which elk management plan it had chosen,
WildEarth Guardians, an environmental interest organization opposed to the
adopted plan, filed an action contesting the plan in district court. WildEarth
claimed that in formulating the plan the NPS violated the National Environmental
Policy Act, 42 U.S.C. §§ 4321S4347, by not considering the introduction of
predatory, fertile gray wolves as a means of managing RMNP’s elk population.
WildEarth also claimed that the plan violates the NPS Organic Act, 16 U.S.C.
§§ 1S4, and the Rocky Mountain National Park Act, 16 U.S.C. §§ 191S195a,
because “culling” is “hunting” and those laws prohibit hunting in the national
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park. 2 Finally, WildEarth claimed the plan violates the Endangered Species Act,
16 U.S.C. §§ 1531S1544, because it does not adequately address conservation of
the gray wolf. In addition to seeking declaratory relief for those claims, 3
WildEarth requested that the district court compel the NPS to consider releasing
fertile gray wolves as an elk management alternative, enjoin the NPS from
hunting elk, and compel the NPS to take measures supporting gray-wolf
conservation at RMNP.
Safari Club moved to intervene as a defendant in WildEarth’s suit against
the NPS. In its motion to intervene and supporting memorandum, Safari Club
elaborated on its interest in supporting the NPS’s elk management plan, including
2
In its complaint, WildEarth stated:
In the Organic Act, Congress prohibited hunting in national parks
unless expressly granted by a park’s unique enabling language. Although
the Secretary has discretion when deciding how to affect conservation
within national parks, the Secretary cannot authorize activities in direct
contradiction to the purposes of the Act. This discretionary power includes
the ability to destroy animal and plant life that is detrimental to the use of
national parks. However, the Organic Act must be read as a whole and in
light of each national park’s unique enabling language. Thus, if the
Organic Act conflicts with an individual park’s enabling act, the park’s
enabling act governs. The RMNP Act expressly prohibits ‘all hunting,
killing, wounding, or capturing at any time of any wild bird or animal. . . .’
J.A., Vol. I, at 20S21 (internal citations omitted and emphasis added).
3
WildEarth, in its complaint, requested that the district court provide:
“[d]eclaratory judgment that the Park Service’s failure to prohibit hunting within
the Park boundaries is in violation of the Organic Act and the RMNP Act” and
“[d]eclaratory judgment that ‘controlled culling’ is hunting.” J.A., Vol. I, at 25.
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(1) its endorsement of sustainable use wildlife management and conservation
techniques, (2) its members’ interests in hunting and otherwise enjoying wildlife
in and near RMNP, (3) its approval of the use of volunteers in culling activities,
and (4) its desire to prevent gray wolves from being used to control RMNP’s elk
population. Safari Club also expressed an interest in supporting qualified
hunters’ ability to participate in wildlife management activities conducted on
national park lands generally. 4
Safari Club asserted those interests would be impaired or impeded if
WildEarth succeeded in its case. In particular, Safari Club noted that a decision
in favor of WildEarth would be contrary to its interests in several ways: it would
(1) cause the methods selected to manage and conserve elk at RMNP, which
Safari Club supports, to be set aside or altered; (2) lead to the introduction of gray
wolves as a means of managing RMNP’s elk population, which Safari Club
4
In its brief in support of its motion to intervene, Safari Club stated that
“[WildEarth] contends that the National Park Service violated the Organic Act
and the Rocky Mountain National Park Act by choosing to cull the elk,” J.A.,
Vol. I, at 32, that “WildEarth [] wrongfully argue[s] that the ‘cull’ constitutes a
‘hunt,’” id., that “if [WildEarth] obtains declaratory relief, federal agencies . . .
could stop qualified hunters from participating in future wildlife management
activities on federally administered lands,” id. at 33, and that “[s]uch a result
could seriously interfere with wildlife management throughout the United States
and could deprive hunters and outdoor enthusiasts of safe and productive wildlife
oriented opportunities,” id. Relatedly, in its reply brief, Safari Club stated,
“[Safari Club] . . . demonstrate[s] the requisite interest since [its] ability to
participate in the management of elk [at] RMNP and [its] ability to continue to
enjoy hunting and other recreational activities in the vicinity of RMNP as well as
within and around other federally administered lands are among several interests
at risk from [WildEarth]’s litigation challenges.” Id. at 110.
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opposes; and (3) prevent, contrary to Safari Club’s preferences, volunteers from
participating in culling activities at RMNP and other national parks. 5
Finally, Safari Club contended the NPS could not adequately represent it.
Safari Club argued the NPS and the public do not necessarily share some of its
specific interests, such as protecting and furthering the use and enjoyment of
hunting on public lands, opposing the release of gray wolves for wildlife
management purposes, and supporting the participation of volunteers in culling
activities.
The district court denied Safari Club’s motion to intervene. In doing so, it
identified and assessed two interests of Safari Club: (1) preserving the quality of
the opportunities to use lands and wildlife near RMNP, and (2) maintaining the
possibility that volunteers might participate in culling activities at RMNP. The
district court held that the former was not at significant risk of impairment,
because a decision in WildEarth’s favor would only cause the elk management
issue to be remanded to the National Park Service for further consideration and
would not lead with certainty to a release of gray wolves. The district court
found the latter too speculative, because, at that point, Safari Club’s members
possessed nothing more than an abstract hope of being selected to participate in
5
Safari Club, in its supporting memorandum, stated: “if [WildEarth] is
successful, Safari Club members will be deprived of the opportunity to participate
in sustainable use wildlife management activities such as the cull [at Rocky
Mountain National Park].” J.A., Vol. I, at 42.
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culling activities at RMNP. Because the district court determined Safari Club did
not set forth an interest at risk of being impaired, the district court did not
consider whether the NPS is capable of adequately representing Safari Club’s
interest.
II. Discussion
On appeal, Safari Club contends the district court erred in failing to credit
its interests in support of intervention. No one disputes the motion to intervene
was timely filed. The only challenge is to the district court’s assessment of the
requirements for intervention of right under Rule 24(a)(2). We review de novo
the district court’s application of Rule 24. See Coalition, 100 F.3d at 840.
We conclude Safari Club satisfies the interest and impairment requirements
of Rule 24.
A. Preservation of Argument
As an initial matter, WildEarth contends Safari Club did not adequately
assert its interest in defending the NPS’s hunting and culling proposals before the
district court. “Failure to raise an issue in the district court generally constitutes
waiver.” Rios v. Ziglar, 398 F.3d 1201, 1209 (10th Cir. 2005); see also Lyons v.
Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993) (requiring that an
issue first be “presented to, considered[, and] decided by the trial court”) (internal
quotation marks omitted)). We disagree with WildEarth’s contention. Reading
WildEarth’s complaint and Safari Club’s motion to intervene, supporting
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memorandum, and reply brief in conjunction with one another makes clear Safari
Club sufficiently articulated all of the interests it asserts on appeal.
In its complaint, for example, WildEarth contended the enabling acts of
individual national parks govern when they conflict with the Organic Act.
WildEarth argued the Organic Act does not permit hunting in a national park
unless the park’s unique enabling language expressly allows it. WildEarth
asserted the NPS’s elk management plan violates the RMNP Act, which forbids
hunting. Based on those contentions, WildEarth sought declarations that
“culling” is “hunting” and that the NPS’s failure to prohibit hunting at RMNP
violated the language and logic of the Organic Act and the park’s enabling
legislation.
Safari Club filed its motion to intervene in direct response to WildEarth’s
complaint. In its memorandum in support of its motion, Safari Club stated that, if
WildEarth obtains the declaratory relief it seeks, “Safari Club members will be
deprived of the opportunity to participate in sustainable use wildlife management
activities” at RMNP, J.A., Vol. I, at 42, and “federal agencies . . . could stop
qualified hunters from participating in future wildlife management activities on
federally administered lands,” “seriously interfer[ing] with wildlife management
throughout the United States and . . . depriv[ing] hunters and outdoor enthusiasts
of safe and productive wildlife oriented opportunities,” id. at 33. Further, Safari
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Club asserted that WildEarth seeks the elimination of the culling aspect of the
NPS’s plan by virtue of WildEarth’s interpretation of the RMNP Act.
Finally, in its reply brief, Safari Club stated its interest in hunting near
RMNP, as well as on or near other federal lands, could be affected by a broad
district court ruling:
[Safari Club’s] ability to participate in the management of elk [at Rocky
Mountain National Park] and [its] ability to continue to enjoy hunting and
other recreational activities in the vicinity of [the park] as well as within
and around other federally administered lands are . . . at risk from
[WildEarth]’s litigation challenges.
J.A., Vol. I, at 110. 6
When considered in the context of WildEarth’s complaint, the totality of
Safari Club’s statements sufficiently identified Safari Club’s interest in protecting
wildlife management techniques that incorporate hunting and culling. See Stone
v. First Wyo. Bank, 625 F.2d 332, 348 (10th Cir. 1980) (giving a liberal reading
to pleadings and motions submitted to the trial court and finding that the issue in
question had been sufficiently preserved).
6
Further, Safari Club restated its interests in its motion for reconsideration:
[Safari Club] based [its] application to intervene on [its] long-standing
interest in elk and wolf management and conservation, [its] recreational
interests in elk hunting in the vicinity of RMNP, [its] participation in the
process by which the Plan had been developed and decided, and the interest
of [Safari Club] members in participating as qualified agents of the NPS in
the cull . . . .
J.A., Vol. I, at 149.
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Having concluded that Safari Club adequately identified its claims before
the district court, we turn to the requirements for intervention as of right.
B. Intervention as of Right
Based on its interest in the outcome of the WildEarth litigation, Safari Club
sought to intervene as of right under Rule 24(a)(2).
1. Elements of Intervention as of Right
Rule 24(a)(2) entitles a movant to intervene as of right if: (1) the movant
claims an interest relating to the property or transaction that is the subject of the
action; (2) the disposition of the litigation may, as a practical matter, impair or
impede the movant’s interest; and (3) the existing parties do not adequately
represent the movant’s interest. See Fed. R. Civ. P. 24(a)(2); Coalition, 100 F.3d
at 840. We follow “a somewhat liberal line in allowing intervention.” WildEarth
Guardians v. USFS, 573 F.3d 992, 995 (10th Cir. 2009) (internal quotation marks,
brackets, and citation omitted). The factors of Rule 24(a)(2) are intended to
“capture the circumstances in which the practical effect on the prospective
intervenor justifies its participation in the litigation,” and “[t]hose factors are not
rigid, technical requirements.” San Juan County v. United States, 503 F.3d 1163,
1195 (10th Cir. 2007) (en banc).
The interest element is “a practical guide to disposing of lawsuits by
involving as many apparently concerned persons as is compatible with efficiency
and due process.” Id. at 1195 (internal quotation marks and citation omitted).
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The movant’s claimed interest is measured in terms of its relationship to the
property or transaction that is the subject of the action, not in terms of the
particular issue before the district court. See Utah Ass’n of Counties v. Clinton,
255 F.3d 1246, 1252 (10th Cir. 2001). With respect to Rule 24(a)(2), we have
declared it “indisputable” that a prospective intervenor’s environmental concern
is a legally protectable interest. San Juan, 503 F.3d at 1199 (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 562S563 (1992) (“[T]he desire to use or
observe an animal species, even for purely [a]esthetic purposes, is undeniably a
cognizable interest for purpose of standing.”)).
For example, in San Juan, we found the prospective intervenors had a
legally protectable interest in defending a National Park Service rule. We
concluded their concern that the plaintiff’s success could lead to environmental
damage to the area in question from vehicular traffic justified party status. See
503 F.3d at 1167S70, 1199. Similarly, in Clinton, we held that the prospective
intervenors, who wished to intervene as defendants in a suit challenging the
establishment of a national monument, had a cognizable interest in the continued
existence of the monument and its restrictions on public entry. Among other
things, their interests arose from a desire to advance conservation goals by
preserving the undeveloped quality of the lands encompassing the monument. In
crediting these interests, we considered “persuasive those opinions holding that
organizations whose purpose is the protection and conservation of wildlife and its
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habitat have a protectable interest in litigation that threatens those goals.”
Clinton, 255 F.3d at 1252. In both San Juan and Clinton, the prospective
intervenors advocated setting aside the land at issue, participated in the
government’s decision-making process at the administrative level, and visited the
contested sites for aesthetic and recreational purposes. See San Juan, 503 F.3d at
1199; Clinton, 255 F.3d at 1251.
The second element—impairment—presents a minimal burden. See
WildEarth Guardians, 573 F.3d at 995. “[A] would-be intervenor must show only
that impairment of its substantial legal interest is possible if intervention is
denied.” Id. (internal quotation marks and citation omitted). Our cases recognize
that the interest of a prospective defendant-intervenor may be impaired where a
decision in the plaintiff’s favor would return the issue to the administrative
decision-making process, notwithstanding the prospective intervenor’s ability to
participate in formulating any revised rule or plan. See Clinton, 255 F.3d at 1254.
“[T]he mere availability of alternative forums is not sufficient to justify denial of
a motion to intervene” because “at most,” participating in a new proceeding
“would not provide the level of protection to the intervenors’ interests that the
current plan offers.” Id. In fact, for purposes of Rule 24(a)(2), sufficient
impairment may result even from the “stare decisis effect” of a district court’s
judgment. Utahns For Better Transp. v. DOT, 295 F.3d 1111, 1116 (10th Cir.
2002); Coalition, 100 F.3d at 844. “We may consider any significant legal effect
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in the applicant’s interest and we are not restricted to a rigid res judicata test.”
Coalition, 100 F.3d at 844 (internal quotation marks, brackets, and citation
omitted).
Clinton provides a useful example of the impairment element. There, the
prospective intervenors argued that the land management plan associated with the
national monument, which they aided in developing, would be set aside if the
plaintiffs succeeded in their case. See Clinton, 255 F.3d at 1253. They pointed
out that removing the plan would open up much of the land comprising the
monument to unrestricted off-road travel, allowing the wilderness character of the
land to be degraded. See id. We held that such an outcome would impair their
environmental and conservationist interests. See id. Notwithstanding the
prospective intervenors’ ability to participate in any renewed land use decision-
making process that would result if the plaintiffs won, we recognized that it was
“not speculative to conclude that the protection accorded the [prospective]
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.” Id. at 1254.
In Coalition, we likewise held that the impairment element was satisfied, at
least in part, based on environmental concerns. In that case, the prospective
intervenor had a cognizable interest in the protection of the Mexican Spotted Owl.
See Coalition, 100 F.3d at 838S39, 844. We found that interest would be
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impaired if the plaintiff was granted the relief it requested in its complaint—a
declaration that the government failed to conduct a sufficient assessment of the
owl’s condition and an injunction removing the owl from the endangered species
list. See id. at 844. In so concluding, we explained:
The appellant could submit a new petition to [] protect the [o]wl; however,
he would, “as a practical matter,” be impaired by the stare decisis effect of
the district court’s decision, not to mention the direct effect of a possible
permanent injunction. Furthermore, the [o]wl and its habitat would not be
protected . . . while [the appellant] tried to lift such a permanent injunction
and [the government] considered [his] new petition.
Id.
Finally, the inadequate representation element of Rule 24(a)(2) also
presents a minimal burden. The movant must show only the possibility that
representation may be inadequate. See Utahns, 295 F.3d at 1117. “The
possibility that the interests of the applicant and the parties may diverge need not
be great in order to satisfy this minimal burden.” Id. We have repeatedly
recognized that it is “on its face impossible” for a government agency to carry the
task of protecting the public’s interests and the private interests of a prospective
intervenor. Id.; see also WildEarth Guardians, 573 F.3d at 996; Clinton, 255
F.3d at 1255. Where a government agency may be placed in the position of
defending both public and private interests, the burden of showing inadequacy of
representation is satisfied. See Utahns, 295 F.3d at 1117.
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With this legal framework in mind, we consider whether Safari Club has
satisfied the elements of intervention as of right.
2. Safari Club May be Entitled to Intervene as of Right
Safari Club contends it satisfies Rule 24’s elements. It argues its interest in
the management and conservation of wildlife at Rocky Mountain National Park
and other national parks may be impaired if WildEarth succeeds in its case.
Safari Club also argues the National Park Service will not adequately represent
that interest. We agree, in part.
First, Safari Club demonstrated a sufficient interest, for purposes of Rule
24(a)(2), in maintaining and furthering the use of culling at RMNP and other
national parks for wildlife management and conservation purposes. 7 Cf. Clinton,
255 F.3d at 1252 (concluding that organizations whose purpose is the protection
and conservation of wildlife have a protectable interest). During the
administrative decision-making process, Safari Club submitted comments to the
NPS demonstrating its interest in and support of the chosen plan, which utilizes
7
In its opposition brief and at oral argument, WildEarth argued that Safari
Club did not sufficiently articulate this interest in its motion to intervene. At the
hearing it held on Safari Club’s motion for reconsideration, the district court
appeared to note the same. We conclude, however, that Safari Club satisfactorily
stated this interest in its intervention motion. When Safari Club’s motion to
intervene, supporting memorandum, and reply brief, see supra n. 4S5, are viewed
in combination with Safari Club’s discussion of the use of culling at RMNP in the
same documents, and the statements concerning the Organic Act and the
equivalence of hunting and culling in WildEarth’s complaint, see supra n. 2S3,
we have no difficulty in finding that the interest was sufficiently stated.
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culling as a wildlife management and conservation tool. Moreover, the record
demonstrates that the NPS intends to cull elk at RMNP. The plan also evidences
the NPS’s willingness to consider the use of culling at national parks other than
RMNP. Safari Club’s articulated interest in furthering the use of culling as a
means of wildlife management and conservation, which it pursued during the
NPS’s administrative proceedings, is not too speculative under our case law to
support intervention as of right.
As a final interest, Safari Club has a strong organizational interest in
defending and preserving the NPS’s interpretation of the Organic Act and
individual national park enabling statutes, including the Rocky Mountain National
Park Act. If WildEarth were to prevail on its broad legal contentions, this case
could establish a precedent that prohibits hunting on these public lands for the
purpose of culling overpopulated wildlife absent specific statutory authorization.
In sum, Safari Club has sufficient cognizable interests in the WildEarth
litigation to satisfy the first intervention requirement.
Second, Safari Club also meets the impairment element. It demonstrated
that its interest in maintaining and furthering the use of culling as a wildlife
management and conservation tool at RMNP and other national parks might be
impaired if the district court decides in WildEarth’s favor.
In its complaint, WildEarth requests, among other things, declaratory
judgment that “hunting” is “culling” and that, therefore, culling violates the
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Organic Act and the RMNP Act. WildEarth also seeks an injunction barring the
NPS from culling elk at RMNP. If WildEarth is granted the relief it requests, the
NPS would be prohibited from employing culling as a means of managing and
conserving wildlife at RMNP. Such a result would directly impair Safari Club’s
interest.
Further, a practical effect of declaratory judgment in WildEarth’s favor
may be preventing or, at the very least, significantly discouraging the NPS from
utilizing culling for wildlife management and conservation purposes at other
national parks. See Coalition, 100 F.3d at 844 (stating that we “may consider any
significant legal effect in the applicant’s interest;” and that, for purposes of Rule
24(a)(2), sufficient impairment may result from the stare decisis effect).
In short, Safari Club has shown that its interest in the litigation might be
impaired if it is not allowed to intervene.
Finally, Safari Club demonstrated they may satisfy Rule 24(a)(2)’s
inadequate representation element. However, because the district court denied
Safari Club’s motion to intervene without reaching the adequacy of representation
element, we conclude the best course is to remand the case for the district court to
consider the issue in the first instance. The district court found that Safari Club
did not identify an interest at risk of impairment and ended its analysis of the
elements of intervention as of right there. Rather than confront the inadequate
representation issue for the first time on appeal, we will leave it to the district
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court to examine initially. See AIMCO v. Nutmeg Ins. Co., 593 F.3d 1188, 1198
(10th Cir. 2010) (“[T]he better practice on issues raised [in] but not ruled on by
the district court is to leave the matter to the district court in the first instance.”)
(internal quotation marks and brackets omitted). We note that a brief from the
NPS addressing the adequacy of representation may prove useful in deciding the
issue.
In sum, the district court erred by concluding Safari Club did not meet the
interest and impairment elements, and by not considering whether the NPS can
adequately represent Safari Club’s interest.
III. Conclusion
For the foregoing reasons, we REVERSE and REMAND with instructions
to consider whether the NPS is capable of adequately representing Safari Club’s
interest.
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