Wilderness Society v. United States Forest Service

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

THE WILDERNESS SOCIETY; PRAIRIE 
FALCON AUDUBON, INC.,
Plaintiffs-Appellees,
v.
UNITED STATES FOREST SERVICE;
JANE P. KOLLMEYER; SCOTT C. No. 09-35200
NANNENGA,
Defendants,  D.C. No.
4:08-cv-00363-EJL
and OPINION
MAGIC VALLEY TRAIL MACHINE
ASSOCIATION; IDAHO RECREATION
COUNCIL; BLUERIBBON COALITION,
INC.,
Intervenor-Applicants-Appellants,

Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding

Argued and Submitted
December 13, 2010—Pasadena, California

Filed January 14, 2011

Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Harry Pregerson, Stephen Reinhardt, Pamela Ann Rymer,
Barry G. Silverman, Susan P. Graber,
M. Margaret McKeown, Kim McLane Wardlaw,
Johnnie B. Rawlinson and Jay S. Bybee, Circuit Judges.

Opinion by Judge Silverman

791
 THE WILDERNESS SOCIETY v. USFS 793

COUNSEL

Paul A. Turcke (argued) of Moore Smith Buxton & Turcke
(Boise, Idaho), for the appellants.

David A. Bahr, Megan O’Reilly (argued), and Erik
Schlenker-Goodrich of Western Environmental Law Center
794 THE WILDERNESS SOCIETY v. USFS
(Taos, New Mexico and Eugene, Oregon), and Scott W. Reed
(Coeur d’Alene, Idaho) for the appellees.

Ignacia S. Moreno, Assistant Attorney General, Aaron Avila,
and Katherine W. Hazard of the U.S. Department of Justice
(Washington, D.C.) for amicus United States.

Paul L. Gale (argued), Erik M. Pritchard, and Jacqueline S.
Treu of Troutman Sanders LLP (Irvine, California) for amici
Motorcycle Industry Council and Specialty Vehicle Institute
of America.

Jeffrey W. Leppo and Jason T. Morgan of Stoel Rives LLP
(Seattle, Washington) for amicus The Alaska Oil and Gas
Association.

Ronald S. Yockim (Roseburg, Oregon) for amici Coos
County, Grant County, Harney County, and Wallowa County.

Roger R. Martella, Jr., Peter R. Steeland, Jr., and Matthew D.
Krueger of Sidley Austin LLP (Washington, D.C.), for amici
American Petroleum Institute, Chamber of Commerce of the
United States, Croplife America, National Association of
Manufacturers, and National Petrochemical and Refiners
Association.

Michael B. Wigmore and Sandra P. Franco of Bingham
McCutchen LLP (Washington, D.C.), for amicus Western
States Petroleum Association.

Elizabeth E. Howard and Dominic M. Carollo of Dunn Car-
ney Allen Higgins & Tongue LLP (Portland, Oregon) for
amici Steens Mountain Landowner Group, Oregon Cattle-
men’s Association, Oregon Cattlemen’s Public Lands Com-
mittee, Oregon Farm Bureau Federation, Public Lands
Council, and National Cattlemen’s Beef Association.
 THE WILDERNESS SOCIETY v. USFS 795
Anna M. Seidman and Douglas S. Burdin of Safari Club
International (Washington, D.C.), for amicus Safari Club
International.

Murray D. Feldman and William G. Myers III of Holland &
Hart LLP (Boise, Idaho) and Dana R. Walsh of Southern
Nevada Water Authority (Las Vegas, Nevada), for amicus
Southern Nevada Water Authority.

Albert M. Ferlo, Donald C. Baur, and Guy R. Martin of Per-
kins Coie LLP (Washington, D.C.), for amicus Western
Urban Water Coalition.

Julie A. Weis and Christopher Lundberg of Haglund Kelly
Horngren Jones & Wilder LLP (Portland, Oregon), William
K. Barquin, Attorney General of Kootenai Tribe of Idaho
(Bonners Ferry, Idaho), Stuart M. Levit and John Harrison of
Confederated Salish and Kootenai Tribes (Pablo, Montana),
Brett Kenney of Coquille Indian Tribe (North Bend, Oregon),
David C. Bonga of Kalispel Tribe (Airway Heights, Washing-
ton), William Bacon of Shoshone-Bannock Tribes (Fort Hall,
Idaho), and Catherine Tufts of Confederated Tribes of Siletz
Indians (Siletz, Oregon), for amici Kootenai Tribe of Idaho,
Confederated Salish and Kootenai Tribes, Coquille Indian
Tribe, Kalispel Tribe, Shoshone-Bannock Tribes, Confeder-
ated Tribes of Siletz Indians, and Metlakatla Indian Commu-
nity.

David F. Hensley, Counsel to the Governor (Boise, Idaho)
and Thomas C. Perry of Idaho Governor’s Office of Species
Conservation (Boise, Idaho), and L. Michael Bogert and Amy
B. Chasanov of Crowell & Moring LLP (Washington, D.C.),
for amici C.L. “Butch” Otter, Governor of Idaho and Idaho
Governor’s Office of Species Conservation.

Daniel S. Sullivan, Attorney General of State of Alaska, and
Lance B. Nelson of Office of the Alaska Attorney General
(Anchorage, Alaska), for amicus State of Alaska.
796 THE WILDERNESS SOCIETY v. USFS
Scott W. Horngren of American Forest Resource Council
(Portland, Oregon), for amici Alaska Forest Association and
Douglas Timber Operators.

Mark C. Rutzick of Mark C. Rutzick, Inc. (Oak Hill, Vir-
ginia), for amicus American Forest Resource Council.

OPINION

SILVERMAN, Circuit Judge:

Today we revisit our so-called “federal defendant” rule,
which categorically prohibits private parties and state and
local governments from intervening of right on the merits of
claims brought under the National Environmental Policy Act
of 1969 (“NEPA”), 42 U.S.C. §§ 4321 et seq. Because the
rule is at odds with the text of Federal Rule of Civil Procedure
24(a)(2) and the standards we apply in all other intervention
of right cases, we abandon it here. When construing motions
to intervene of right under Rule 24(a)(2), courts need no lon-
ger apply a categorical prohibition on intervention on the mer-
its, or liability phase, of NEPA actions. To determine whether
a putative intervenor demonstrates the “significantly protect-
able” interest necessary for intervention of right in a NEPA
action, the operative inquiry should be, as in all cases,
whether “the interest is protectable under some law,” and
whether “there is a relationship between the legally protected
interest and the claims at issue.” Sierra Club v. EPA, 995 F.2d
1478, 1484 (9th Cir. 1993). Since the district court applied the
“federal defendant” rule to prohibit intervention of right on
the merits in this NEPA case, we reverse and remand so that
it may reconsider the putative intervenors’ motion to inter-
vene.

I. BACKGROUND

This action arises out of the Forest Service’s adoption of a
travel plan that designated 1,196 miles of roads and trails for
 THE WILDERNESS SOCIETY v. USFS 797
use by motorized vehicles in the Minidoka Ranger District of
Idaho’s Sawtooth National Forest. Two conservation groups,
the Wilderness Society and Prairie Falcon Audubon, Inc.,
claim that the Forest Service violated NEPA by, among other
things, failing to prepare an Environmental Impact Statement
and failing to consider reasonable alternatives to the travel
plan that would protect certain ecologically sensitive water-
sheds and wildlife habitats within the District. Their com-
plaint seeks declaratory and injunctive relief invalidating the
travel plan, limiting motorized vehicles to previously autho-
rized routes, and prohibiting off-road vehicles from traveling
outside designated routes, pending compliance with NEPA
and other environmental statutes.

The issue central to this appeal arose when three groups
representing recreation interests, the Magic Valley Trail
Machine Association, Idaho Recreation Council, and Blue
Ribbon Coalition, Inc., moved to intervene to counter the con-
servation groups’ contention that the Forest Service’s plan
was too accommodating to users of motorized vehicles. The
conservation groups opposed intervention, and the Forest Ser-
vice took no position on the issue. Applying our Circuit’s
“federal defendant” rule, the district court denied intervention
of right. The district court also denied permissive intervention
on the grounds that the recreation groups had not adequately
participated in the administrative process and “would not add
any further clarity or insight” to the litigation.

The recreation groups appealed, arguing that the district
court erred in failing to consider limited intervention and
abused its discretion in denying permissive intervention. They
also urged us to consider modifying or eliminating the “fed-
eral defendant” rule. A three-judge panel of our court ordered
the parties to brief whether the court should review the case
en banc to consider abandoning the rule. The recreation
groups again urged the court to do so. The conservation
groups took no position on the propriety of the rule. We
granted en banc review. We have jurisdiction pursuant to 28
798 THE WILDERNESS SOCIETY v. USFS
U.S.C. § 1291. See Forest Conservation Council v. U.S. For-
est Serv., 66 F.3d 1489, 1491 n.2 (9th Cir. 1995) (citing Sage-
brush Rebellion, Inc. v. Watt, 713 F.2d 525, 527 (9th Cir.
1983)).

II. INTERVENTION OF RIGHT IN NEPA CASES

[1] Federal Rule of Civil Procedure 24(a)(2) requires a
court, upon timely motion, to permit intervention of right by
anyone who “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.” When ana-
lyzing a motion to intervene of right under Rule 24(a)(2), we
apply a four-part test:

(1) the motion must be timely; (2) the applicant must
claim a “significantly protectable” interest relating to
the property or transaction which is the subject of the
action; (3) the applicant must be so situated that the
disposition of the action may as a practical matter
impair or impede its ability to protect that interest;
and (4) the applicant’s interest must be inadequately
represented by the parties to the action.

Sierra Club, 995 F.2d at 1481 (citing Scotts Valley Band of
Pomo Indians v. United States, 921 F.2d 924, 926 (9th Cir.
1990)).

[2] Our “federal defendant” rule categorically precludes
private parties and state and local governments from interven-
ing of right as defendants on the merits of NEPA actions. See
Churchill County v. Babbitt, 150 F.3d 1072, 1082, as
amended by 158 F.3d 491 (9th Cir. 1998); Forest Conserva-
tion Council, 66 F.3d at 1499 n.11. The rationale for this rule
is that such parties lack a “significantly protectable” interest
warranting intervention of right under Rule 24(a)(2) because
 THE WILDERNESS SOCIETY v. USFS 799
NEPA is a procedural statute that binds only the federal gov-
ernment. See Churchill County, 150 F.3d at 1082 (citing
Sierra Club, 995 F.2d at 1485). Our unique interpretation of
intervention of right in NEPA cases may be traced to Portland
Audubon Society v. Hodel, 866 F.2d 302 (9th Cir. 1989).
There, a logging group and several Oregon localities and con-
tractors sought to intervene of right in a NEPA action brought
by conservation groups challenging the Bureau of Land Man-
agement’s approval of logging old-growth timber in Oregon
forests. Id. at 303-04. We held that the proposed intervenors’
“significant economic stake” in the outcome of the case was
not a “ ‘protectable’ interest justifying intervention as of
right” partly because “NEPA provides no protection for . . .
purely economic interests.” Id. at 309 (citing Donaldson v.
United States, 400 U.S. 517, 531 (1971)). In doing so, we
approved the district court’s reliance on Wade v. Goldschmidt,
673 F.2d 182 (7th Cir. 1982) (per curiam), a Seventh Circuit
case rejecting the attempt of a construction group and several
families and localities to intervene of right in an action charg-
ing that a proposed bridge and expressway project violated
NEPA and other federal statutes. Portland Audubon Soc’y,
866 F.2d at 308-09. Wade reasoned that the proposed interve-
nors lacked the “direct, significant legally protectable inter-
est” required for intervention of right under Rule 24(a)(2)
because in cases “brought to require compliance with federal
statutes regulating governmental projects, the governmental
bodies charged with compliance can be the only defendants.”
673 F.2d at 185.

[3] In subsequent cases, we interpreted Portland Audubon
to hold that the federal government is the only proper defen-
dant in a NEPA compliance action. See, e.g., Churchill
County, 150 F.3d at 1082; Sierra Club, 995 F.2d at 1485.
While we have clarified that the “federal defendant” rule does
not prohibit limited intervention of right in the remedial phase
of NEPA litigation, see Forest Conservation Council, 66 F.3d
at 1493-99, we have consistently applied the rule to bar pri-
vate parties from intervening of right in the portion of NEPA
800 THE WILDERNESS SOCIETY v. USFS
litigation addressing the government’s compliance with the
statute, see Kootenai Tribe of Idaho v. Veneman, 313 F.3d
1094, 1108 (9th Cir. 2002); Wetlands Action Network v. U.S.
Army Corps of Eng’rs, 222 F.3d 1105, 1114 (9th Cir. 2000).

III. DISCUSSION

[4] In addition to the recreation groups, no fewer than
thirty-seven amici—including conservation, recreation and
commercial groups, state and local governments, Indian
tribes, regional water authorities, and the federal government,1
among others—argue that we should abandon our categorical
prohibition on the ability of private parties and state and local
governments to intervene of right as defendants on the merits
of NEPA cases. We agree. Such a bright-line rule is inconsis-
tent with the text of Rule 24(a)(2), which requires only “an
interest relating to the property or transaction that is the sub-
ject of the action.” Fed. R. Civ. P. 24(a)(2). In stating that
“private parties do not have a ‘significant protectable interest’
in NEPA compliance actions,” Kootenai Tribe, 313 F.3d at
1108, the “federal defendant” rule mistakenly focuses on the
underlying legal claim instead of the property or transaction
1
Although it does not support the rule, the federal government argues
that this case does not properly present the question of whether private
parties may intervene on the merits of NEPA claims because the recre-
ation groups seek only to intervene in the remedial phase of the conserva-
tion groups’ suit against the Forest Service. We disagree. In their motion
to intervene, the recreation groups requested intervention “with full rights
as a party.” And in their proposed answer, the recreation groups denied the
conservation groups’ contentions that the Forest Service violated NEPA
by failing to, among other things, prepare an Environmental Impact State-
ment, consider reasonable alternatives to the travel plan, and take a “hard
look” at the impacts caused by motorized vehicle use in the Minidoka Dis-
trict. The fact that the recreation groups also filed a proposed cross-claim
alleging that the Forest Service violated NEPA in different respects does
not erase the fact that they sought to intervene as defendants to counter the
conservation groups’ contentions on the merits. Because the district court
applied the “federal defendant” rule in holding that they could not do so,
the propriety of the rule is properly before us.
 THE WILDERNESS SOCIETY v. USFS 801
that is the subject of the lawsuit. No part of Rule 24(a)(2)’s
prescription engrafts a limitation on intervention of right to
parties liable to the plaintiffs on the same grounds as the
defendants.

The “federal defendant” rule’s limitation on intervention of
right in NEPA actions also runs counter to the standards we
apply in all other intervention of right cases. In evaluating
whether Rule 24(a)(2)’s requirements are met, we normally
follow “practical and equitable considerations” and construe
the Rule “broadly in favor of proposed intervenors.” United
States v. City of Los Angeles, 288 F.3d 391, 397 (9th Cir.
2002) (internal quotation marks omitted); see also Sw. Ctr. for
Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir.
2001). We do so because “[a] liberal policy in favor of inter-
vention serves both efficient resolution of issues and broad-
ened access to the courts.” City of Los Angeles, 288 F.3d at
397-98 (internal quotation marks omitted). In keeping with
that policy, we have held that Rule 24(a)(2) does not require
a specific legal or equitable interest, County of Fresno v.
Andrus, 622 F.2d 436, 438 (9th Cir. 1980), and noted that
“ ‘the “interest” test is primarily a practical guide to disposing
of lawsuits by involving as many apparently concerned per-
sons as is compatible with efficiency and due process,’ ” id.
(quoting Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir.
1967)). We have also clarified that a prospective intervenor’s
asserted interest need not be protected by the statute under
which the litigation is brought to qualify as “significantly pro-
tectable” under Rule 24(a)(2). Sierra Club, 995 F.2d at 1481,
1484. Rather, “[i]t is generally enough that the interest is pro-
tectable under some law, and that there is a relationship
between the legally protected interest and the claims at issue.”
Id. at 1484. Furthermore, a prospective intervenor “has a suf-
ficient interest for intervention purposes if it will suffer a
practical impairment of its interests as a result of the pending
litigation.” California ex rel. Lockyer v. United States, 450
F.3d 436, 441 (9th Cir. 2006).
802 THE WILDERNESS SOCIETY v. USFS
The “federal defendant” rule runs counter to all of the
above standards. In applying a technical prohibition on inter-
vention of right on the merits of all NEPA cases, it eschews
practical and equitable considerations and ignores our tradi-
tionally liberal policy in favor of intervention. It also fails to
recognize the very real possibility that private parties seeking
to intervene in NEPA cases may, in certain circumstances,
demonstrate an interest “protectable under some law,” and a
relationship between that interest and the claims at issue.
Courts should be permitted to conduct this inquiry on a case-
by-case basis, rather than automatically prohibiting interven-
tion of right on the merits in all NEPA cases.

That the “federal defendant” rule is at odds with the normal
standards we apply in all other intervention of right cases is
further demonstrated by our consistent approval of interven-
tion of right on the side of the federal defendant in cases
asserting violations of environmental statutes other than
NEPA. See, e.g., Sierra Club, 995 F.2d at 1486; Idaho Farm
Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1397-98 (9th Cir.
1995). In Sagebrush Rebellion, Inc. v. Watt, for example, we
held that several conservation groups could intervene of right
to defend the federal government’s compliance with the Fed-
eral Land Policy and Management Act of 19762 in designating
a conservation area for birds of prey. 713 F.2d at 526-28. In
doing so, we noted that there could “be no serious dispute”
concerning the existence of a protectable interest supporting
the conservation groups’ right to intervene. Id. at 528. Simi-
larly, in Idaho Farm Bureau—decided well after Portland
Audubon—we approved intervention of right by environmen-
tal groups as defendants in an action challenging the Fish and
Wildlife Service’s compliance with the Endangered Species
2
This case also appears to have included NEPA claims, but the panel
decision does not explicitly address intervention as to those claims. See
Sagebrush Rebellion, Inc. v. Hodel, 790 F.2d 760, 763 (9th Cir. 1986)
(indicating that NEPA claims were also at issue). Sagebrush Rebellion
was decided before Portland Audubon.
 THE WILDERNESS SOCIETY v. USFS 803
Act of 1973 (“ESA”) and the Administrative Procedure Act.
58 F.3d at 1397-98. Citing Sagebrush Rebellion, we held that
the environmental groups demonstrated an adequate interest
because they had been active in the administrative process the
Service initiated under the ESA. Id. Although we have distin-
guished some of these cases from NEPA cases in the past,
see, e.g., Sierra Club, 995 F.2d at 1483-85, we no longer see
any principled reason to categorically prohibit intervention of
right on the merits of NEPA actions while approving of it in
cases challenging the federal government’s compliance with
other environmental and administrative statutes. Given the
many different scenarios in which NEPA claims arise, courts
should be permitted to engage in the contextual, fact-specific
inquiry as to whether private parties meet the requirements for
intervention of right on the merits, just as they do in all other
cases.

Finally, our application of the “federal defendant” rule is
out of step with all but one of our sister circuits that have
addressed whether private parties may intervene of right on
the merits of NEPA claims. See, e.g., WildEarth Guardians v.
U.S. Forest Serv., 573 F.3d 992 (10th Cir. 2009); Kleissler v.
U.S. Forest Serv., 157 F.3d 964 (3d Cir. 1998); Sierra Club
v. Espy, 18 F.3d 1202 (5th Cir. 1994); Wilderness Soc’y v.
Morton, 463 F.2d 1261 (D.C. Cir. 1972) (per curiam).3 And
the Seventh Circuit’s rule prohibiting intervention of right
extends beyond NEPA cases; in actions “brought to require
compliance with federal statutes regulating governmental
projects, the governmental bodies charged with compliance
can be the only defendants.” Wade, 673 F.2d at 185; see, e.g.,
Keith v. Daley, 764 F.2d 1265, 1269 (7th Cir. 1985); United
States v. 36.96 Acres of Land, 754 F.2d 855, 859 (7th Cir.
3
The Second and Sixth Circuits have declined to expressly address
whether private parties may intervene of right on the merits of NEPA
cases. See Friends of Tims Ford v. Tenn. Valley Auth., 585 F.3d 955, 963
n.1 (6th Cir. 2009); Pogliani v. U.S. Army Corps of Eng’rs, 146 Fed.
App’x 528, 529-30 (2d Cir. 2005) (unpublished).
804 THE WILDERNESS SOCIETY v. USFS
1985). The Seventh Circuit does not single out NEPA cases
for a special rule, as we have done. The fact that our NEPA-
specific “federal defendant” rule finds little to no support
among our sister circuits strengthens the case for its abandon-
ment today. As noted by the Third Circuit in Kleissler, “[t]he
reality is that NEPA cases frequently pit private, state, and
federal interests against each other. Rigid rules in such cases
contravene a major premise of intervention—the protection of
third parties affected by pending litigation.” 157 F.3d at 971.

[5] We now abandon the “federal defendant” rule. When
considering motions to intervene of right under Rule 24(a)(2),
courts need no longer apply a categorical prohibition on inter-
vention on the merits, or liability phase, of NEPA actions. To
determine whether putative intervenors demonstrate the “sig-
nificantly protectable” interest necessary for intervention of
right in a NEPA case, the operative inquiry should be whether
the “interest is protectable under some law” and whether
“there is a relationship between the legally protected interest
and the claims at issue.” Sierra Club, 995 F.2d at 1484. A
putative intervenor will generally demonstrate a sufficient
interest for intervention of right in a NEPA action, as in all
cases, if “it will suffer a practical impairment of its interests
as a result of the pending litigation.” California ex rel. Lock-
yer, 450 F.3d at 441.

[6] Because the district court applied the “federal defen-
dant” rule to deny the recreation groups’ motion to intervene,
we reverse and remand so that it may consider anew their
motion, including the related request for permissive interven-
tion, in light of our holding today.

REVERSED and REMANDED.