FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITIZENS FOR BALANCED USE,
Plaintiff-Appellee,
v.
MONTANA WILDERNESS
ASSOCIATION; GREATER
YELLOWSTONE COALITION; THE No. 10-35823
WILDERNESS SOCIETY,
Applicants-in-intervention- D.C. No.
2:10-cv-00017-SEH
Appellants, OPINION
and
MARY ERICKSON, Gallatin National
Forest Supervisor; UNITED STATES
FOREST SERVICE,
Defendants.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
June 7, 2011—Portland, Oregon
Filed July 26, 2011
Before: Raymond C. Fisher, Ronald M. Gould, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Gould
9543
9546 CITIZENS FOR BALANCED USE v. ERICKSON
COUNSEL
Douglas L. Honnold, Timothy J. Preso, Sean M. Helle
(argued), and Jenny K. Harbine, Earthjustice, Bozeman, Mon-
tana, for applicants-in-intervention-appellants Montana Wil-
CITIZENS FOR BALANCED USE v. ERICKSON 9547
derness Association, Greater Yellowstone Coalition, and The
Wilderness Society.
Catherine A. Laughner, Mary Christina Surr McCann, and
Kyle W. Nelson (argued), Browning, Kaleczyc, Berry &
Hoven, P.C., Bozeman, Montana, for plaintiff-appellee Citi-
zens for Balanced Use.
OPINION
GOULD, Circuit Judge:
Three conservation groups, Montana Wilderness Associa-
tion, Greater Yellowstone Coalition, and The Wilderness
Society (collectively, “Applicants”) appeal from the denial of
their motion to intervene on the side of the defendants in an
action brought by Citizens for Balanced Use (“CBU”) against
Mary Erickson, in her official capacity as Supervisor of the
Gallatin National Forest, and the United States Forest Service
(“Forest Service”). In the underlying action, CBU challenged
an interim order issued by the Forest Service in response to
an adverse decision in prior litigation brought by Applicants.
That interim order, which is the subject of this litigation,
restricted motorized and mechanized vehicle use in a section
of the Gallatin National Forest. CBU alleged that the chal-
lenged interim order violated the Montana Wilderness Study
Act of 1977 (“MWSA”) and the Administrative Procedure
Act (“APA”) because it unduly restricted the use or posses-
sion of snowmobiles, tracked ATVs, and other over-snow
vehicles. Because we conclude that Applicants satisfied the
four requirements for intervention as of right under Federal
Rule of Civil Procedure 24(a), we reverse and remand with
instructions that the district court allow Applicants to inter-
vene and become parties to the ongoing litigation, and that the
district court take reasonable steps to put Applicants on equal
footing with the original parties so as to ensure their opportu-
nity for participation.
9548 CITIZENS FOR BALANCED USE v. ERICKSON
I
The Gallatin National Forest, in southwest Montana, con-
tains within its boundaries the Hyalite-Porcupine-Buffalo
Horn Wilderness Study Area (“Study Area”), made up of
155,000 acres of public lands established by the Montana
Wilderness Study Act of 1977, Pub. L. No. 95-150, 91 Stat.
1243. The MWSA requires the Secretary of Agriculture to
administer the Study Area so as to “maintain [its] presently
existing wilderness character [as of 1977] and potential for
inclusion in the National Wilderness Preservation System.”
MWSA § 3(a), 91 Stat. 1243.
In October 2006, after several years of environmental anal-
ysis, public review, and public comment, the Forest Service
issued the Travel Management Plan (“Plan”), along with a
Final Environmental Impact Statement, to manage travel and
recreation within the Study Area. Three conservation groups
—the same groups that are the applicants for intervention in
this case, namely Montana Wilderness Association, Greater
Yellowstone Coalition, and the Wilderness Society—filed an
action in March 2007 to challenge the Plan under the APA on
the theory that the Plan permitted increased motorized and
mechanized activity in the Study Area in violation of the
MWSA and the National Environmental Policy Act
(“NEPA”). See Mont. Wilderness Ass’n v. McAllister, 658 F.
Supp. 2d 1249 (D. Mont. 2009). CBU,1 with several other rec-
reational use advocacy groups, also filed suit against the For-
est Service to challenge the Plan, but, unlike the conservation
groups, it asserted that the Plan was overly restrictive of
motorized and mechanized recreational activity in violation of
the MWSA. The two separate challenges to the Plan were
consolidated. In September 2009, the district court in the con-
1
CBU, a membership organization based in Bozeman, Montana, seeks
to preserve and enhance recreational access opportunities, including the
use of snowmobiles, tracked ATVs, and other over-snow vehicles, on pub-
lic lands such as the Study Area.
CITIZENS FOR BALANCED USE v. ERICKSON 9549
solidated action granted summary judgement to the conserva-
tion plaintiffs (Applicants in this case) based on its conclusion
that the Plan was arbitrary and capricious and violated the
MWSA and NEPA; enjoined the continued implementation of
the Plan; and remanded to the agency for further proceedings
consistent with its ruling. See id. at 1256, 1266. The Forest
Service appealed the district court’s grant of summary judg-
ment for the conservation plaintiffs (Applicants), and that
appeal is currently pending before this court.
In November 2009, in response to the district court’s rul-
ing, the Forest Service announced an interim management
strategy for the Study Area, made effective by an Interim
Order, which further limited snowmobile and other motorized
and mechanized use.2 In April 2010, CBU initiated this action
against the Forest Service to challenge the Interim Order.
CBU claimed that the Interim Order violated the MWSA and
the APA because it restricts motorized and mechanized vehi-
cle use in areas that were open to such use in 1977. Ten days
after the Forest Service filed its answer in CBU’s new action,
Applicants filed a motion to intervene as of right under Rule
24(a)(2), or, in the alternative to intervene in the court’s dis-
cretion under Rule 24(b). CBU opposed the motion. The dis-
trict court denied the motion. Applicants timely appealed the
district court’s denial of their motion seeking intervention as
of right or permissive intervention.
II
We have jurisdiction over the denial of a motion to inter-
vene as of right as a final appealable order under 28 U.S.C.
§ 1291. Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d
810, 814 (9th Cir. 2001). We review the denial of a motion
2
A news release issued by the Gallatin National Forest explained: “The
interim strategy constrains snowmobile use in the [Study Area] to the Big
Sky Snowmobile Trail and an open area for cross country snowmobile
travel . . . near Golden Trout Lakes and west of Windy Pass.”
9550 CITIZENS FOR BALANCED USE v. ERICKSON
to intervene as of right de novo, with the exception of the
timeliness prong, which we review for abuse of discretion.3
Id. at 817.
We have jurisdiction over the denial of a motion for per-
missive intervention only if we determine that the district
court abused its discretion. League of United Latin Am. Citi-
zens v. Wilson (“LULAC”), 131 F.3d 1297, 1307-08 (9th Cir.
1997); see also Freedom From Religion Found., Inc. v. Geith-
ner, ___ F.3d ___, No. 09-17753, 2011 WL 1746137, at *4
(9th Cir. May 9, 2011) (stating that we review the denial of
a motion for permissive intervention for abuse of discretion).
We need not reach the issue of permissive intervention if we
determine that intervention as of right was improperly denied.
United States v. City of L.A., 288 F.3d 391, 398 (9th Cir.
2002) (“We reverse as to intervention as of right, and we
therefore do not consider whether the [applicant] was entitled
to intervene permissively.”).
III
Federal Rule of Civil Procedure 24(a)(2) states:
On timely motion, the court must permit anyone to
intervene 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 exist-
ing parties adequately represent that interest.
[1] An applicant seeking to intervene as of right under
Rule 24 must demonstrate that four requirements are met: “(1)
the intervention application is timely; (2) the applicant has a
3
Here, the district court did not make any findings on timeliness or rest
its decision to deny intervention on a failure of Applicants to satisfy that
prong, and CBU does not contest that the motion to intervene was timely.
CITIZENS FOR BALANCED USE v. ERICKSON 9551
significant protectable interest relating to the property or
transaction that is the subject of the action; (3) the disposition
of the action may, as a practical matter, impair or impede the
applicant’s ability to protect its interest; and (4) the existing
parties may not adequately represent the applicant’s interest.”
Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (internal
quotation marks and citation omitted); see also Berg, 268
F.3d at 817. While an applicant seeking to intervene has the
burden to show that these four elements are met, the require-
ments are broadly interpreted in favor of intervention. Prete,
438 F.3d at 954. “In addition to mandating broad construc-
tion, our review is guided primarily by practical consider-
ations, not technical distinctions.” Berg, 268 F.3d at 818
(internal quotation marks and citation omitted).
[2] CBU concedes that Applicants meet the first three ele-
ments of the test for intervention as of right and urge that
intervention was properly denied solely on the basis that
Applicants did not show that the Forest Service may not ade-
quately represent their interest. We agree with the parties that
Applicants meet the first three requirements for intervention
as of right. Those requirements, while not now disputed, merit
brief discussion because they are part of the setting in which
we examine the disputed issue.
With respect to the first requirement, Applicants filed their
motion to intervene in a timely manner, less than three
months after the complaint was filed and less than two weeks
after the Forest Service filed its answer to the complaint. The
motion to intervene was made at an early stage of the pro-
ceedings, the parties would not have suffered prejudice from
the grant of intervention at that early stage, and intervention
would not cause disruption or delay in the proceedings. These
are traditional features of a timely motion. See Nw. Forest
Res. Council v. Glickman, 82 F.3d 825, 836 (9th Cir. 1996).
Second, Applicants have a significant protectable interest in
the action. “Whether an applicant for intervention as of right
9552 CITIZENS FOR BALANCED USE v. ERICKSON
demonstrates sufficient interest in an action is a ‘practical,
threshold inquiry,’ and ‘[n]o specific legal or equitable inter-
est need be established.’ ” Id. at 837 (quoting Greene v.
United States, 996 F.2d 973, 976 (9th Cir. 1993)). To demon-
strate a significant protectable interest, an applicant must
establish that the interest is protectable under some law and
that there is a relationship between the legally protected inter-
est and the claims at issue. Id. As CBU concedes, Applicants
have a significant protectable interest in conserving and
enjoying the wilderness character of the Study Area, which
rests on the provisions of the MWSA invoked in this case.
See, e.g., United States v. Carpenter, 526 F.3d 1237, 1240
(9th Cir. 2008) (explaining that a prior opinion made clear
that wilderness conservation groups “were entitled to inter-
vene because they had the requisite interest in seeing that the
wilderness area be preserved for the use and enjoyment of
their members”); Sagebrush Rebellion, Inc. v. Watt, 713 F.2d
525, 528 (9th Cir. 1983) (holding that the National Audubon
Society had the right to intervene in a suit challenging the
actions of the Interior Secretary in connection with the devel-
opment of a bird conservation area based on the Audubon
Society’s interest in the preservation of birds and their habi-
tats). Applicants have satisfied the second requirement for
intervention as of right given their interest in preserving wil-
derness character within the Study Area.
Third, the disposition of this action may, as a practical mat-
ter, impair or impede Applicants’ ability to protect their inter-
est. “If an absentee would be substantially affected in a
practical sense by the determination made in an action, he
should, as a general rule, be entitled to intervene . . . .” Fed.
R. Civ. P. 24 advisory committee’s note; see also Berg, 268
F.3d at 822 (“We follow the guidance of Rule 24 advisory
committee notes . . . .”). Under similar circumstances,
“[h]aving found that appellants have a significant protectable
interest, [this court had] little difficulty concluding that the
disposition of th[e] case may, as a practical matter, affect it.”
California ex rel. Lockyer v. United States, 450 F.3d 436, 442
CITIZENS FOR BALANCED USE v. ERICKSON 9553
(9th Cir. 2006). If CBU prevails in this case and succeeds in
enjoining enforcement of the restrictions of the Interim Order
that limit motorized and mechanized use in the Study Area,
Applicants’ interest in conserving and enjoying wilderness in
the Study Area may, as a practical matter, be impaired.
[3] This brings us to the parties’ principal dispute on the
question of whether Applicants meet the fourth and final
requirement for intervention as of right: that the existing par-
ties may not adequately represent the applicant’s interest. The
burden of showing inadequacy of representation is “minimal”
and satisfied if the applicant can demonstrate that representa-
tion of its interests “may be” inadequate. Arakaki v. Cayetano,
324 F.3d 1078, 1086 (9th Cir. 2003). In evaluating adequacy
of representation, we examine three factors: “(1) whether the
interest of a present party is such that it will undoubtedly
make all of a proposed intervenor’s arguments; (2) whether
the present party is capable and willing to make such argu-
ments; and (3) whether a proposed intervenor would offer any
necessary elements to the proceeding that other parties would
neglect.” Id. The “most important factor” in assessing the ade-
quacy of representation is “how the interest compares with the
interests of existing parties.” Id. If an applicant for interven-
tion and an existing party share the same ultimate objective,
a presumption of adequacy of representation arises. LULAC,
131 F.3d at 1305. To rebut the presumption, an applicant must
make a “compelling showing” of inadequacy of representa-
tion. Arakaki, 324 F.3d at 1086. “There is also an assumption
of adequacy when the government is acting on behalf of a
constituency that it represents,” which must be rebutted with
a compelling showing. Id.
[4] CBU’s central contention is that intervention as of right
was properly denied because Applicants did not make a suffi-
cient showing that the Forest Service’s representation may be
inadequate. CBU argues that Applicants and the Forest Ser-
vice share the same ultimate objective—that of upholding the
validity of the Interim Order—and that this gives rise to a pre-
9554 CITIZENS FOR BALANCED USE v. ERICKSON
sumption of adequacy of representation. Applicants respond
that there is no such alignment of objectives because the For-
est Service implemented the Interim Order only to comply
with the earlier district court decision, a decision that the For-
est Service now seeks to overturn on appeal. Applicants fur-
ther contend that the Forest Service will defend the Interim
Order by asserting that the recreational use restrictions were
required by the outcome of the prior litigation and not by the
MWSA’s mandate that the Forest Service “maintain” the
Study Area’s wilderness character.
[5] We agree with Applicants and reject CBU’s contention
that the Forest Service’s and Applicants’ ultimate objectives
are identical where the Forest Service acted under compulsion
of a district court decision gained by Applicants’ previous liti-
gation, and where the Forest Service is simultaneously
appealing the decision that led them to adopt the now-
challenged Interim Order. Applicants and the Forest Service
have distinct interests and objectives in that Applicants wish
to defend the Interim Order as containing the kind of restric-
tions that are statutorily mandated by the MWSA to protect
wilderness character, while the Forest Service may assert only
that the Interim Order was compelled by the prior district
court decision, which the Forest Service is also seeking to over-
turn.4 Applicants seek to secure the broadest possible restric-
tions on recreational uses in the Study Area to protect its
interest in the wilderness character, while the Forest Service
has made clear its position that, while the Interim Order does
not violate the MWSA, much narrower restrictions would suf-
fice to comply with its statutory mandate. This represents
more than a mere difference in litigation strategy, which
might not normally justify intervention, but rather demon-
strates the fundamentally differing points of view between
4
Indeed, if the Forest Service succeeds in reversing or vacating the prior
district court ruling on its appeal, the Forest Service predictably may
change its litigation position or even abandon the defense of the Interim
Order and withdraw it.
CITIZENS FOR BALANCED USE v. ERICKSON 9555
Applicants and the Forest Service on the litigation as a whole.
See California ex rel. Lockyer, 450 F.3d at 444-45. As one of
our sister circuits has persuasively explained, the govern-
ment’s representation of the public interest may not be “iden-
tical to the individual parochial interest” of a particular group
just because “both entities occupy the same posture in the liti-
gation.” WildEarth Guardians v. U.S. Forest Serv., 573 F.3d
992, 996 (10th Cir. 2009) (quoting Utah Ass’n of Cntys. v.
Clinton, 255 F.3d 1246, 1256 (10th Cir. 2001)).
Even assuming that the Forest Service and Applicants share
the objective of defending the legality of the Interim Order,
Applicants have made a “compelling showing” of inadequate
representation as required to permit intervention where there
is such a unity of objectives. Applicants assert that the Forest
Service may not adequately represent their interest in conserv-
ing and enjoying wilderness character in the Study Area
because (1) the Forest Service reluctantly adopted the restric-
tions on motorized use in the Interim Order—restrictions that
are favorable to Applicants’ interests—in response to success-
ful litigation the Applicants themselves brought, and (2) the
Forest Service now seeks to overturn on appeal the very court
decision that forced it to adopt the Interim Order. This show-
ing is compelling.
We have concluded that the “inadequacy of representation”
prong was met in analogous factual circumstances on substan-
tially weaker showings. In County of Fresno v. Andrus, 622
F.2d 436 (9th Cir. 1980), for example, the district court
denied a motion for intervention as of right filed by the orga-
nization National Land for People, Inc. (“NLP”) in an action
brought by the County of Fresno to enjoin the Secretary of the
Department of the Interior from promulgating regulations
governing excess land sales until an environmental impact
statement was prepared. Id. at 437. NLP had previously
brought an action and obtained a preliminary injunction to
compel the Secretary to initiate rulemaking proceedings. Id.
We held that the Department of the Interior did not adequately
9556 CITIZENS FOR BALANCED USE v. ERICKSON
represent NLP’s interest because the Department did not
appeal the district court’s grant of a preliminary injunction, as
NLP would have done, and because there was “further reason
to doubt that the Department will fully protect NLP’s interest
. . . in light of the fact that the Department began its rulemak-
ing only reluctantly after NLP brought a law suit against it.”
Id. at 439.
Similarly, in Idaho Farm Bureau Federation v. Babbitt, 58
F.3d 1392 (9th Cir. 1995), we affirmed the district court’s
decision granting intervention as of right under Rule 24(a) to
a conservation organization on the side of the United States
Fish and Wildlife Service (“FWS”) to defend a final rule list-
ing a particular species of snail as an endangered species. Id.
at 1395. We concluded that the FWS may have inadequately
represented the interests of the conservation organization
because:
FWS delayed its decision on the listing proposal for
years and took action only after [intervenor] filed
suit to compel FWS to make a decision. FWS was
unlikely to make strong arguments in support of its
own actions considering that it proceeded to make a
decision largely to fulfill the settlement agreement in
the suit [intervenor] filed. Furthermore, FWS was
unlikely to argue on behalf of [intervenor], the very
organizations that compelled FWS to make a final
decision by filing a lawsuit.
Id. at 1398.
[6] Like the government defendants in each of these cases,
the Forest Service issued the Interim Order at issue here only
reluctantly in response to successful litigation by Applicants.
In light of County of Fresno and Babbitt, this fact alone dem-
onstrates that the Forest Service may not put forth as strong
of an argument in defense of the Interim Order—particularly
the argument that the order’s restrictions are mandated by the
CITIZENS FOR BALANCED USE v. ERICKSON 9557
MWSA and not just by the district court’s order—because the
Forest Service earlier opposed Applicants in their efforts to
secure the restrictions. That the Forest Service has appealed
the decision of the district court that compelled it to issue the
Interim Order adds substantial weight to Applicants’ position
that the Forest Service may be unable or unwilling to pursue
vigorously all available arguments in support of the Appli-
cants’ interest. Based on the relevant precedent and the pecu-
liar circumstances of this case, there is sufficient reason to
doubt the adequacy of the Forest Service’s representation of
Applicants’ interest so as to warrant intervention as of right
by Applicants. See Trbovich v. United Mine Workers of Am.,
404 U.S. 528, 538 (1972).
[7] We stress that intervention of right does not require an
absolute certainty that a party’s interests will be impaired or
that existing parties will not adequately represent its interests.
Rule 24(a) is invoked when the disposition of the action
“may” practically impair a party’s ability to protect their
interest in the subject matter of the litigation, “unless existing
parties adequately represent that interest.” Fed. R. Civ. P.
24(a)(2). Rule 24(a) has been interpreted to mean that a party
whose interests are threatened may intervene in an action to
protect those interests directly if the existing parties may not
adequately protect their interests. See Trbovich, 404 U.S. at
538 n.10 (“The requirement . . . is satisfied if the applicant
shows that representation of his interest ‘may be’ inadequate
. . . .”). Given the Forest Service’s prior litigation position
adverse to Applicants, the Forest Service’s appeal of the dis-
trict court ruling that enjoined the Travel Management Plan,
and the fact that the Forest Service issued the Interim Order
challenged here in response to that very same adverse ruling,
we cannot conclude that the Forest Service will undoubtedly
make all of Applicants’ arguments, nor can we be assured that
the Forest Service is capable of making and willing to make
such arguments. Even if we applied a presumption of ade-
quate representation, that presumption was persuasively
rebutted by Applicants’ presentation.
9558 CITIZENS FOR BALANCED USE v. ERICKSON
[8] Applicants satisfied all four requirements for interven-
tion as of right, and the denial of their motion was therefore
in error. Because we reverse the district court’s denial of
intervention as of right, we need not reach the issue of
whether the district court abused its discretion in denying per-
missive intervention. See City of L.A., 288 F.3d at 398.
IV
[9] Applicants showed, in a timely-filed motion, that they
have a significant protectable interest in this action, that the
disposition may impair their ability to protect that interest,
and that the Forest Service may not adequately represent their
interest. Applicants are entitled to intervene under Rule 24(a).
We reverse and remand with instructions that Applicants be
made parties to the litigation and that the district court
promptly “take all reasonable steps to put the new parties on
equal footing with the original parties.” California ex rel.
Lockyer, 450 F.3d at 445. Because the district court may soon
rule on dispositive motions that could affect Applicants’ inter-
ests, time is of the essence; the clerk is instructed to issue the
mandate forthwith. See id.
REVERSED AND REMANDED.