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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 21, 2003 Decided March 18, 2003
No. 01-5346
THE FUND FOR ANIMALS, INC., ET AL.,
APPELLEES
v.
GALE A. NORTON, SECRETARY,
DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES
NATURAL RESOURCES DEPARTMENT OF THE MINISTRY OF
NATURE AND ENVIRONMENT OF MONGOLIA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00813)
John J. Jackson III argued the cause and filed the briefs
for appellant.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Howard M. Crystal argued the cause for plaintiffs-
appellees. With him on the brief was Katherine A. Meyer.
Jonathan R. Lovvorn entered an appearance.
Before: TATEL and GARLAND, Circuit Judges, and WILLIAMS,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: The Natural Resources Depart-
ment of the Ministry of Nature and Environment of Mongolia
(NRD) appeals from the denial of its motion to intervene in a
case concerning the application of the Endangered Species
Act to argali sheep located within Mongolia’s borders. Be-
cause the NRD satisfies the requirements for intervention as
of right under Federal Rule of Civil Procedure 24(a)(2), we
reverse and direct that the NRD be allowed to intervene.
I
The Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et
seq., requires the Secretary of the Interior to determine
whether any species is ‘‘endangered’’ or ‘‘threatened,’’ id.
§ 1533(a)(1), a responsibility she has delegated to the Depart-
ment of the Interior’s Fish and Wildlife Service (FWS), 50
C.F.R. § 402.01(b). A species is endangered if it ‘‘is in
danger of extinction throughout all or a significant portion of
its range,’’ 16 U.S.C. § 1532(6), and is threatened if it ‘‘is
likely to become an endangered species within the foreseeable
future,’’ id. § 1532(20). The ESA provides specified protec-
tions for endangered species, id. § 1538(a)(1), and instructs
the Secretary to issue such regulations as she ‘‘deems neces-
sary and advisable to provide for the conservation of’’ threat-
ened species, id. § 1533(d).
The argali sheep, an Asian relative of the North American
bighorn sheep, is the largest species of wild sheep in the
world. Adult males weigh between 210 and 310 pounds and
possess enormous spiral horns. Addition of Argali to List of
Endangered and Threatened Wildlife, 57 Fed. Reg. 28,014,
28,014 (FWS, June 23, 1992). In 1992, the FWS listed the
3
argali as endangered throughout most of its range. It listed
the species as threatened rather than endangered, however,
in Mongolia, Kyrgyzstan, and Tajikistan. Id. (codified at 50
C.F.R. pt. 17).
On April 16, 2001, The Fund for Animals, along with other
organizations and individuals dedicated to wildlife conserva-
tion in general and protection of argali sheep in particular
(collectively, the ‘‘Fund’’ or ‘‘plaintiffs’’), filed suit against the
Secretary of the Interior and the Director of the FWS. The
plaintiffs alleged that the defendants violated the ESA, the
Administrative Procedure Act, 5 U.S.C. § 706, and their own
regulations by failing to list the argali as an endangered
species in Mongolia, Kyrgyzstan, and Tajikistan, and by
issuing hundreds of permits for sport hunters to import killed
argali (or parts thereof) into the United States as ‘‘trophies.’’
The plaintiffs asked the court, inter alia, to direct the defen-
dants to list the argali as an endangered species in those
countries, to declare unlawful all outstanding permits for the
import of argali sheep, and to enjoin the defendants from
issuing additional permits.
On April 27, 2001, the Foundation for North American Wild
Sheep, as well as other organizations and individuals dedicat-
ed to wild sheep hunting and conservation (collectively, the
‘‘FNAWS intervenors’’), filed a motion to intervene as defen-
dants in the Fund’s lawsuit. On June 4, 2001, ‘‘the Country
of Mongolia, through its Natural Resources Department of
the Ministry of Nature and Environment,’’ sought to inter-
vene as a defendant as well. Mot. to Add Intervenor at 1
(J.A. at 139).1 The NRD, represented by the same counsel
who filed on behalf of the FNAWS intervenors, described
itself as the agency of the Mongolian government responsible
for ‘‘implement[ing] [the] policy and decision of [the] Govern-
ment on rational utilization of natural resources, rehabilita-
tion, and TTT protection,’’ including the country’s ‘‘tourist
hunting program.’’ Id. at 2 (J.A. at 140). Another pair of
organizations dedicated to hunting and conservation, the Sa-
1
The NRD sought intervention through a motion, filed by the
FNAWS intervenors, to add the NRD as an intervenor.
4
fari Club International and the Wildlife Conservation Fund of
America (collectively, the ‘‘Safari Club intervenors’’), moved
to intervene on June 27, 2001.
On September 4, 2001, the district court granted the mo-
tions for intervention filed by both the FNAWS and Safari
Club intervenors, but denied the motion filed by the NRD.
The court did not explain its decision, other than to state that
denial of intervention was based ‘‘[u]pon consideration of [the
NRD’s motion], the opposition thereto, and the entire record
herein.’’ NRD Order at 1 (J.A. at 386). The instant appeal
followed.
II
Rule 24 of the Federal Rules of Civil Procedure provides
for both permissive intervention and intervention as of right.
See Fed. R. Civ. P. 24(a) & (b). The NRD’s motion relied on
both theories, and its briefs on appeal cite both. Because we
conclude that the NRD is entitled to intervene as of right, we
need not address the issue of permissive intervention. See
Foster v. Gueory, 655 F.2d 1319, 1323–24 (D.C. Cir. 1981).
Rule 24(a)(2) states in relevant part:
Upon timely application anyone shall be permitted to
intervene in an action TTT 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.
Fed. R. Civ. P. 24(a)(2). Parsing the language of the rule, we
have held that qualification for intervention as of right de-
pends on the following four factors:
(1) the timeliness of the motion; (2) whether the appli-
cant ‘‘claims an interest relating to the property or
transaction which is the subject of the action’’; (3) wheth-
er ‘‘the applicant is so situated that the disposition of the
action may as a practical matter impair or impede the
5
applicant’s ability to protect that interest’’; and (4)
whether ‘‘the applicant’s interest is adequately represent-
ed by existing parties.’’
Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1074 (D.C. Cir.
1998) (quoting Fed. R. Civ. P. 24(a)(2)) (citations omitted).
We have further held that, in addition to establishing its
qualification for intervention under Rule 24(a)(2), a party
seeking to intervene as of right must demonstrate that it has
standing under Article III of the Constitution. See Military
Toxics Project v. EPA, 146 F.3d 948, 953 (D.C. Cir. 1998);
Mova Pharm., 140 F.3d at 1074; Building & Constr. Trades
Dep’t v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994). As we
have explained, ‘‘because a Rule 24 intervenor seeks to partic-
ipate on an equal footing with the original parties to the suit,
he must satisfy the standing requirements imposed on those
parties.’’ City of Cleveland v. NRC, 17 F.3d 1515, 1517 (D.C.
Cir. 1994).
The denial of a motion for intervention as of right is an
appealable final order ‘‘because it is conclusive with respect to
the distinct interest asserted by the movant.’’ Smoke v.
Norton, 252 F.3d 468, 470 (D.C. Cir. 2001); see Alternative
Research & Dev. Found. v. Veneman, 262 F.3d 406, 409–10
(D.C. Cir. 2001). We have been somewhat inconsistent, how-
ever, in describing the standard of review for such appeals.2
As we have previously observed, that may be because we
have not always distinguished between the different kinds of
determinations necessary to establish the predicate for inter-
vention. See Massachusetts School of Law at Andover, Inc.
v. United States, 118 F.3d 776, 779 (D.C. Cir. 1997). Not-
2 Compare Smoke, 252 F.3d at 470–71 (stating that the court
reviews denials of intervention as of right for clear error), and
Foster, 655 F.2d at 1324 (same), with Mova Pharm., 140 F.3d at
1074 (explaining that ‘‘[t]o the extent that a district court’s ruling on
a motion to intervene as of right is based on questions of law, it is
reviewed de novo; to the extent that it is based on questions of fact,
it is ordinarily reviewed for abuse of discretion’’), and Building &
Constr. Trades, 40 F.3d at 1282 (stating that denials are reviewed
under an abuse of discretion standard).
6
withstanding that Rule 24(a) is entitled ‘‘Intervention of
Right,’’ the determinations necessary to establish that predi-
cate are of three different kinds. Some are pure issues of law
and hence are reviewed de novo. See Massachusetts School
of Law, 118 F.3d at 779; Mova Pharm., 140 F.3d at 1074.
Others involve findings of fact and are reviewed for clear
error. Cf. Fed. R. Civ. P. 52(a) (providing that ‘‘[f]indings of
fact TTT shall not be set aside unless clearly erroneous’’).
And some involve a measure of judicial discretion and hence
are reviewed for abuse of that discretion. See Massachusetts
School of Law, 118 F.3d at 779 (noting ‘‘the existence of
district court discretion over the timeliness and adequacy of
representation issues under Rule 24(a)(2)’’) (citing Hodgson v.
United Mine Workers, 473 F.2d 118, 125 n.26 (D.C. Cir.
1972)); Natural Res. Def. Council v. Costle, 561 F.2d 904,
907, 913 (D.C. Cir. 1977) (same).3 Of course, where (as here)
the district court has not accompanied its decision with either
factual findings or explanation, there is nothing to which we
can defer regardless of which standard of review applies. See
Cook v. Boorstin, 763 F.2d 1462, 1468 (D.C. Cir. 1985).
Because a would-be intervenor’s Article III standing pres-
ents a question going to this court’s jurisdiction, see Sierra
Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002), we address it
first, in Part III below. In Part IV, we consider the four
factors set forth in Rule 24(a)(2).
III
To establish standing under Article III, a prospective inter-
venor — like any party — must show: (1) injury-in-fact, (2)
causation, and (3) redressability. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992); Sierra Club, 292 F.3d
at 898. The NRD argues that it meets these requirements
3 Cf. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)
(prescribing a unitary abuse of discretion standard for reviewing
determinations made under Federal Rule of Civil Procedure 11, but
noting that a ‘‘district court would necessarily abuse its discretion if
it based its ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence’’).
7
because fees paid by sport hunters are the primary source of
funding for its argali conservation program. If the Fund
succeeds in barring American hunters from bringing their
trophies home, some hunters will not travel to Mongolia to
hunt the argali, and the revenues that support the conserva-
tion program will decline.
The NRD’s argument is persuasive. The threatened loss
of tourist dollars, and the consequent reduction in funding for
Mongolia’s conservation program, constitute a concrete and
imminent injury. This injury is fairly traceable to the regula-
tory action — the placement of the argali on the endangered
list and the cancellation of import permits — that the Fund
seeks in the underlying lawsuit. And it is likely that a
decision favorable to the NRD would prevent that loss from
occurring.
In Military Toxics Project v. EPA, we considered a similar
set of circumstances. There, the Chemical Manufacturers
Association (CMA) sought to intervene on the side of the
Environmental Protection Agency (EPA) in a lawsuit brought
by the Military Toxics Project, a coalition of citizens’ groups.
146 F.3d at 953. The Project sued to overturn an EPA rule
that declared that most military munitions at firing ranges
did not constitute ‘‘regulatory solid waste’’ for purposes of the
Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901
et seq., when used for their ‘‘intended purpose.’’ Military
Toxics Project, 146 F.3d at 952. We concluded that the CMA
had standing to intervene because, inter alia, ‘‘some of its
members produce[d] military munitions,’’ those members
‘‘benefit[ed] from the EPA’s ‘intended use’ interpretation,’’
and they ‘‘would suffer concrete injury if the court grant[ed]
the relief the petitioners [sought].’’ Id. at 954. The parallels
to this case are clear: Mongolia’s sheep are the subject of the
disputed regulations, the country benefits from the FWS’s
current regulations, and Mongolia would suffer concrete inju-
ry if the court were to grant the relief the plaintiffs seek.
The Fund does not dispute the logic of the NRD’s reason-
ing. Instead, it contends that the agency has failed to
support its claims with evidence. Quoting our decision in
8
Sierra Club v. EPA, the Fund insists that the NRD’s stand-
ing cannot rest on ‘‘mere allegations, but must set forth by
affidavit or other evidence specific facts.’’ 292 F.3d at 899
(quotation marks omitted). The Fund contends that the
NRD has offered neither affidavits nor other evidence suffi-
cient to satisfy this requirement.4
Sierra Club, however, does not require parties to file
evidentiary submissions in support of standing in every case.
To the contrary, our decision made clear that ‘‘[i]n many if
not most cases the petitioner’s standing to seek review of
administrative action is self-evident.’’ Id. at 899–900. ‘‘In
particular, if the complainant is ‘an object of the action (or
forgone action) at issue’ — as is the case usually in review of
a rulemaking and nearly always in review of an adjudica-
tion — there should be ‘little question that the action or
inaction has caused him injury, and that a judgment prevent-
ing or requiring the action will redress it.’ ’’ Id. at 900
(quoting Defenders of Wildlife, 504 U.S. at 561–62). In this
case, while the NRD is not itself the object of the challenged
agency action, sheep that Mongolia regards as its national
property and natural resource plainly are its subject. And
for the purpose of determining whether standing is self-
evident, we see no meaningful distinction between a regula-
tion that directly regulates a party and one that directly
regulates the disposition of a party’s property.5
4 We note that the above quotations from Sierra Club refer to a
party’s obligations at the summary judgment stage, but not at ‘‘the
pleading stage’’ where ‘‘ ‘general factual allegations of injury TTT
may suffice.’ ’’ Sierra Club, 292 F.3d at 898–99 (quoting Defenders
of Wildlife, 504 U.S. at 561). In light of our disposition, we need
not decide whether the NRD’s motion to intervene is closer to a
motion for summary judgment or to a pleading.
5 In fact, in some respects Mongolia is itself ‘‘an object of the
action TTT at issue,’’ Sierra Club, 292 F.3d at 900 (quotation marks
omitted), because the Fund’s complaint contends that the country’s
conservation program does not satisfy the statutory criteria for
issuing import permits under the ESA. See Pls.’ Second Am.
Compl. ¶¶ 41–57.
9
But even if we were to harbor any doubts about NRD’s
standing, they would be dissipated by evidence in the district
court record. First, there are the Fund’s own pleadings,
which are admissible as evidence in support of its opponent’s
cause. See First Bank of Marietta v. Hogge, 161 F.3d 506,
510 (8th Cir. 1998); Dugan v. EMS Helicopters, Inc., 915
F.2d 1428, 1431–32 (10th Cir. 1990). In aid of the Fund’s
attack on the FWS’s import permit policy, but in complete
accord with the NRD’s standing contentions, the Fund’s
complaint declares:
A U.S. hunter who cannot import his ‘‘trophy’’ from the
country where it is killed is unlikely to spend the re-
sources required to travel to that country to kill the
animal. Accordingly, the number of argali that are killed
by U.S. hunters is directly related to the number of
import permits the [FWS] issues.
Pls.’ Second Am. Compl. ¶ 38. This point is further sup-
ported by affidavits filed by another set of parties to the
district court litigation — the Safari Club intervenors. Con-
firming both the NRD’s logic and the Fund’s pleadings, two
hunters aver that they will likely cancel their previously
scheduled hunting trips to Mongolia if they are unable to
obtain import permits. Jacklin Decl. ¶¶ 2, 5 (J.A. at 306);
Ward Decl. ¶¶ 2, 5 (J.A. at 308).
We therefore conclude that the NRD has established its
Article III standing, and that lack of standing is not a ground
for rejecting its motion to intervene as of right.6
6 The plaintiffs do not question the NRD’s prudential standing,
and rightly so. In Bennett v. Spear, the Supreme Court held that
the broad language of the citizen-suit provision of the ESA — which
extends to departments of foreign governments, see 16 U.S.C.
§§ 1532(13), 1540(g)(1)(C), and on which the plaintiffs rely in the
present case — ‘‘negates the zone-of-interests test’’ and expands
standing ‘‘to the full extent permitted under Article III.’’ 520 U.S.
154, 164, 165 (1997). Even if that were not the case, the NRD’s
interests are ‘‘arguably within the zone of interests to be protected
or regulated by the statute,’’ In re: Vitamins Antitrust Class
Actions, 215 F.3d 26, 29 (D.C. Cir. 2000) (quotation marks omitted),
10
IV
Turning to the four-factor test of Rule 24(a)(2), see supra
Part II, we find the balance of our analysis not difficult at all.
First, the NRD’s motion was timely. The NRD moved to
intervene less than two months after the plaintiffs filed their
complaint and before the defendants filed an answer. In-
deed, the NRD’s motion was filed three weeks before that of
the Safari Club intervenors — whose motion the district court
granted.
The second factor is also readily dispatched. Our conclu-
sion that the NRD has constitutional standing is alone suffi-
cient to establish that the NRD has ‘‘an interest relating to
the property or transaction which is the subject of the
action,’’ Fed. R. Civ. P. 24(a)(2). See Mova Pharm., 140 F.3d
at 1076. In any event, because the relevant ‘‘property’’ is
Mongolia’s sheep and the relevant ‘‘transaction’’ is the FWS’s
decision to permit the importation of those sheep from Mon-
golia, there can be no question that the NRD has the requi-
site interest. See Foster, 655 F.2d at 1324 (‘‘An intervenor’s
interest is obvious when he asserts a claim to property that is
the subject matter of the suitTTTT’’); United States v. Ameri-
can Tel. & Tel. Co., 642 F.2d 1285, 1291–93 (D.C. Cir. 1980)
(holding that a prospective intervenor possessed the requisite
interest in a database that another company sought from the
government, because the database had been prepared by the
intervenor).
Third, the NRD is ‘‘so situated that the disposition of the
action may as a practical matter impair or impede [its] ability
to protect [its] interest.’’ Fed. R. Civ. P. 24(a)(2). Prior to
1966, Rule 24(a)(2) required the applicant to show that it
‘‘may be bound by a judgment in the action.’’ Fed. R. Civ. P.
because the ESA requires the Secretary of the Interior to take into
account efforts ‘‘being made by any TTT foreign nation, or any
political subdivision of a TTT foreign nation, to protect [threatened
or endangered] species TTT within any area under its jurisdiction,’’
16 U.S.C. § 1533(b)(1)(A).
11
24(a)(2) (1966); see Fed. R. Civ. P. 24(a)(2) advisory commit-
tee’s note on 1966 amendment; Nuesse v. Camp, 385 F.2d
694, 701 (D.C. Cir. 1967). But the 1966 amendments to Rule
24 eliminated that requirement and substituted the present
language, which we have read ‘‘as looking to the ‘practical
consequences’ of denying intervention, even where the possi-
bility of future challenge to the regulation remain[s] avail-
able.’’ Natural Res. Def. Council, 561 F.2d at 909 (quoting
Nuesse, 385 F.2d at 702). Regardless of whether the NRD
could reverse an unfavorable ruling by bringing a separate
lawsuit, there is no question that the task of reestablishing
the status quo if the Fund succeeds in this case will be
difficult and burdensome. See id. at 910 (‘‘[I]t is not enough
to deny intervention under 24(a)(2) because applicants may
vindicate their interests in some later, albeit more burden-
some, litigation.’’). Moreover, as the NRD further argues, its
loss of revenues during any interim period would be substan-
tial and likely irreparable. Cf. Mova Pharm., 140 F.3d at
1076 (holding that danger of loss of market share due to
denial of a preliminary injunction satisfied the third Rule
24(a)(2) factor).
This leaves only the question of whether the NRD’s inter-
est is ‘‘adequately represented by existing parties.’’ Fed. R.
Civ. P. 24(a)(2). The Supreme Court has held that this
‘‘requirement of the Rule is satisfied if the applicant shows
that representation of his interest ‘may be’ inadequate; and
the burden of making that showing should be treated as
minimal.’’ Trbovich v. United Mine Workers, 404 U.S. 528,
538 n.10 (1972). Citing Trbovich, we have described this
requirement as ‘‘not onerous.’’ Dimond v. District of Colum-
bia, 792 F.2d 179, 192 (D.C. Cir. 1986); see also Foster, 655
F.2d at 1325; American Tel. & Tel. Co., 642 F.2d at 1293
(stating that a petitioner ‘‘ ‘ordinarily should be allowed to
intervene unless it is clear that the party will provide ade-
quate representation for the absentee’ ’’ (quoting 7A CHARLES
ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1909 (1st ed. 1972))). Measured by that stan-
12
dard, we conclude that neither of the two groups of existing
parties in this case — the federal defendants and the other
intervenors — adequately represents the NRD’s interests.7
The NRD’s interests plainly are not adequately represent-
ed by the federal defendants. It is true, as the Fund notes,
that both the FWS and the NRD agree that the FWS’s
current rules and practices are lawful. But the FWS’s obli-
gation is to represent the interests of the American people, as
expressed in the ESA, while the NRD’s concern is for Mongo-
lia’s people and natural resources. There may be some
overlap, since the ESA requires the FWS — when determin-
ing whether a species is endangered or threatened — to
‘‘tak[e] into account those efforts, if any, being made by any
TTT foreign nation, or any political subdivision of a TTT foreign
nation, to protect such species TTT within any area under its
jurisdiction.’’ 16 U.S.C. § 1533(b)(1)(A). But taking the
NRD’s efforts ‘‘into account’’ does not mean giving them the
kind of primacy that the NRD would give them.8 Nor must
the FWS’s appraisal of the NRD’s efforts necessarily match
the NRD’s self-appraisal. It is, therefore, not hard to imag-
ine how the interests of the NRD and those of the FWS
might diverge during the course of litigation — when, for
7 Our cases are inconsistent as to who bears the burden with
respect to this factor. The language of some cases, particularly
those that quote the above passage from Trbovich, suggest that the
burden is on the aspiring intervenor. See Foster, 655 F.2d at 1325;
Dimond, 792 F.2d at 192. Others declare that the burden is on the
opponent of intervention, because Rule 24(a)(2) states that if its first
three factors are satisfied, intervention ‘‘shall’’ be permitted ‘‘un-
less’’ the applicant’s interest is already adequately represented.
See American Tel. & Tel. Co., 642 F.2d at 1293; Smuck v. Hobson,
408 F.2d 175, 181 (D.C. Cir. 1969). In any event, Trbovich makes
clear that the standard for measuring inadequacy of representation
is low, and in this case it is satisfied regardless of who bears the
burden.
8 See 16 U.S.C. § 1533(b)(1)(A) (requiring that determinations of
threatened or endangered status be made ‘‘solely on the basis of the
best scientific and commercial data available’’ after taking into
account the conservation efforts of a foreign nation).
13
example, the FWS may be required to present its assessment
of the quality of Mongolia’s argali conservation program.
For just these reasons, we have often concluded that
governmental entities do not adequately represent the inter-
ests of aspiring intervenors.9 For example, in holding that
the District of Columbia did not adequately represent the
interests of a private insurance company that wished to
intervene to support the District against a challenge to its no-
fault insurance law, we explained:
A government entity such as the District of Columbia is
charged by law with representing the public interest of
its citizens. [The insurance company], on the other hand,
is seeking to protect a more narrow and ‘‘parochial’’
financial interest not shared by the citizens of the Dis-
trict of Columbia. The District would be shirking its
duty were it to advance this narrower interest at the
expense of its representation of the general public inter-
est.
9 See, e.g., Natural Res. Def. Council, 561 F.2d at 912–13 (allow-
ing rubber and chemical companies to intervene in support of EPA
because their interest ‘‘is more narrow and focused than EPA’s’’
and, ‘‘[g]iven the acknowledged impact that regulation can be
expected to have upon their operations, appellants’ participation in
defense of EPA decisions that accord with their interest may also
be likely to serve as a vigorous and helpful supplement to EPA’s
defense’’); Smuck, 408 F.2d at 181 (holding that a school board did
not adequately represent the interests of intervening parents be-
cause the ‘‘board represents all parents,’’ while the intervenors
‘‘may have more parochial interests centering upon the education of
their own children’’). Similarly, in Trbovich the Supreme Court
authorized intervention by a union member who sought to partici-
pate in a suit that the Secretary of Labor had instituted against the
member’s union, upon the member’s own complaint. See 404 U.S.
at 529. The Court rejected the Secretary’s claim that he adequate-
ly represented the petitioner, because ‘‘the Secretary has an obli-
gation to protect the vital public interest in assuring free and
democratic union elections that transcends the narrower interest of
the complaining union member.’’ Id. at 539 (quotation marks
omitted).
14
Dimond, 792 F.2d at 192–93. Although it is true that the
NRD is itself a governmental entity, it is not an agency of our
government. Hence, examined from the perspective of the
FWS’s responsibilities, the NRD’s interests are ‘‘more narrow
and ‘parochial’ ’’ — just as the FWS’s interests may appear
when viewed from the perspective of Mongolia.
Finally, we also reject the Fund’s contention that the
NRD’s interest is adequately represented by the FNAWS
and Safari Club intervenors — non-Mongolian organizations
and individuals interested in sheep hunting and conservation.
We could no more regard the NRD’s interests as adequately
represented by those intervenors than we could regard the
FWS’s interests as adequately represented by a Mongolian —
or even an American — hunt club, however conservation-
minded the club might be. Although there may be a partial
congruence of interests, that does not guarantee the adequacy
of representation. As we have recognized, ‘‘interests need
not be wholly ‘adverse’ before there is a basis for concluding
that existing representation of a ‘different’ interest may be
inadequate.’’ Nuesse, 385 F.2d at 703. Moreover, even ‘‘a
shared general agreement TTT does not necessarily ensure
agreement in all particular respects,’’ Natural Res. Def.
Council, 561 F.2d at 912, and ‘‘[t]he tactical similarity of the
present legal contentions of the [parties] does not assure
adequacy of representation or necessarily preclude the [inter-
venor] from the opportunity to appear in [its] own behalf,’’
Nuesse, 385 F.2d at 703.
Nor does the fact that the NRD is represented by the same
counsel as the FNAWS intervenors establish the adequacy of
representation. Rule 24(a)(2) requires a showing that the
existing parties, not their lawyers, will adequately represent
the applicant. Sharing the same counsel does not guarantee
that the clients’ interests are congruent, and if there is a
divergence, it is counsel and not the clients who must bend.
We are satisfied that the NRD’s interests in this litigation are
not adequately represented as measured by the Trbovich
standard, and we therefore find that the last of the Rule
24(a)(2) requirements for intervention has been met.
15
V
Having concluded that the district court erred in denying
the NRD intervention as of right, we could remand this case
for reconsideration in light of the discussion set forth above.
In the past, however, we have not hesitated to direct that
intervention be allowed where we found denial to constitute
error.10 That disposition is appropriate where, as here, we
cannot envision a contrary determination that would with-
stand further appeal.11 Accordingly, we remand this case to
the district court with directions to grant the NRD’s motion
to intervene as of right.
So ordered.
10 See Mova Pharm., 140 F.3d at 1076–77; Dimond, 792 F.2d at
194; Foster, 655 F.2d at 1325; Natural Res. Def. Council, 561 F.2d
at 913; see also Trbovich, 404 U.S. at 539 (remanding with di-
rections to the district court to allow intervention).
11 In opposing permissive intervention in the district court, the
Fund, quoting Federal Rule of Civil Procedure 24(b), expressed
concern that the NRD would ‘‘unduly delay or prejudice the adjudi-
cation’’ by interjecting extraneous claims. At the oral argument of
this appeal, however, the Fund agreed that the district court had
shown itself able to prevent such delay or prejudice without denying
intervention: in granting the motions of the FNAWS and Safari
Club intervenors, the court limited their intervention to ‘‘the claims
raised by the original parties’’ and barred them from raising
‘‘collateral issues.’’ FNAWS Order at 1; Safari Club Order at 1.
The same option is available to the district court with respect to the
NRD. See Fed. R. Civ. P. 24(a) advisory committee’s note on 1966
amendment (‘‘An intervention of right under the amended rule may
be subject to appropriate conditions or restrictions responsive
among other things to the requirements of efficient conduct of the
proceedings.’’).