United States v. the Wilderness Socie

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-counter-defendant-
Appellee,
v.
JOHN C. CARPENTER; GRANT No. 06-15596
GERBER; Q. JOHNSON O., D.C. No.
Defendants,  CV-99-00547-
and RLH/RAM
COUNTY OF ELKO, OPINION
Defendant-Appellee,
THE WILDERNESS SOCIETY; GREAT
OLD BROADS FOR WILDERNESS,
Defendants-Intervenors-Appellants.

Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding

Argued and Submitted
February 27, 2008—Pasadena, California

Filed May 20, 2008

Before: Mary M. Schroeder, Dorothy W. Nelson and
Stephen Reinhardt, Circuit Judges.

Opinion by Judge Schroeder

5827
5830 UNITED STATES v. THE WILDERNESS SOCIETY

COUNSEL

Elizabeth Ann Peterson, AUSA, Washington, DC, for
plaintiff-counter-defendant-appellee United States of Amer-
ica.

Kristin McQueary, Elko, Nevada, for defendant-appellee
County of Elko.

Michael S. Freeman, Denver, Colorado, for defendants-
intervenors-appellants The Wilderness Society et al.

OPINION

SCHROEDER, Circuit Judge:

This is a dispute over the status of a road on U.S. Forest
Service land in Elko County, Nevada. The case was before us
for the first time in 2002. See United States v. Carpenter, 298
F.3d 1122 (9th Cir. 2002). At that time, the intervenor-
appellant environmental groups wanted to object to the terms
of a proposed settlement between the United States and Elko
County that effectively allowed the County to repair the road.
We ordered the district court to grant the motion to intervene.
Id. at 1125.
 UNITED STATES v. THE WILDERNESS SOCIETY 5831
The intervenor-appellants are now back, claiming that the
district court disregarded our mandate by not permitting them
to intervene in the Quiet Title Act portion of the suit that was
the subject of the proposed settlement and therefore was the
critical part of the litigation. The district court, after our deci-
sion, permitted the intervenor-appellants to appear only as
amici during the settlement approval proceedings; it denied
their motion to participate in an evidentiary hearing. After the
hearing, the court ruled against their position on the merits
without, in appellants’ view, permitting them adequate partic-
ipation. The intervenor-appellants now want us not only to
vacate the approval so that they can fully present their posi-
tion, but they also want us to reach the merits and rule in their
favor.

For their part, the United States and the County defend the
settlement, contending that the intervenors’ participation was
adequate because the district court properly, in appellees’
view, ruled that the intervenors lacked standing to participate
as a party in the quiet title proceedings in light of their lack
of any property interest in the disputed right of way for the
road. Resolution of the appeal therefore requires some under-
standing of the procedural history of the case both before the
first appeal and after our prior opinion.

I. Background

We begin with the initiation of the lawsuit in 1999 by the
United States against residents of Elko County who were
using self-help measures to restore one of the old logging
roads near a wilderness area. Carpenter, 298 F.3d at 1124.
The residents were known as the “Shovel Brigade.” The
United States at that time was concerned about the degrada-
tion of the environment through the adverse effect the Shovel
Brigade was having on bull trout in the river adjacent to the
roadway, and the threat to maintaining the pristine nature of
that area. Because the road leads to the Jarbidge Wilderness
Area, the restoration of the roadway would have increased
5832 UNITED STATES v. THE WILDERNESS SOCIETY
traffic into the wilderness preserve. The U.S. Attorney Gen-
eral filed this suit alleging two causes of action: unlawful take
of threatened bull trout in violation of the Endangered Species
Act, 16 U.S.C. § 1538(a)(1)(G), and common law trespass.

The district court added Elko County as a party defendant,
and it filed a counterclaim under the Quiet Title Act, 28
U.S.C. § 2409a, alleging that title to an easement for the road-
way should be quieted in the County as opposed to the United
States. The district court ordered the parties to mediation. As
we stated in our prior opinion, when the district court sent the
United States and the County to mediation, the parties agreed
that the discussions would be confidential. Carpenter, 298
F.3d at 1124. The negotiations were protracted but agreement
was eventually reached:

The parties returned to court after months of unsuc-
cessful negotiations, and the district court ordered
further confidential settlement proceedings, this time
before a Magistrate Judge. On March 2, 2001, the
parties notified the court that they had reached a ten-
tative agreement, and the court lifted the confidenti-
ality order covering the mediation proceedings so
that the agreement could be publicly disseminated.
The United States agreed that it would not contest
that Elko County had a right of way to the road, but
did not waive its authority to manage federal lands
and natural resources in accordance with federal
environmental laws. The defendants agreed that they
would not do any work on the road without receiving
prior approval from the Forest Service and that they
would comply with federal environmental laws.

Id. It was at that point, after the settlement had been proposed
and the intervenor environmentalists became aware of the
terms of the settlement, that they sought to intervene. Id. at
1125.
 UNITED STATES v. THE WILDERNESS SOCIETY 5833
The district court originally denied intervention, principally
on the ground that the application was not timely. Id. at 1124.
We reversed the denial of intervention, holding that the appli-
cation was timely in the circumstances, and that the interve-
nors met the requirements for intervention because their
interests at that point were no longer being represented by any
party to the proceeding. We ordered the court to grant the
intervention. Id. at 1125-26.

That was six years ago. After we remanded the case to the
district court, the appellants renewed their motion to intervene
and attempted to file cross-claims against the United States
pursuant to the Administrative Procedure Act (“APA”),
directly challenging the terms of the settlement agreement as
violative of the National Environmental Protection Act
(“NEPA”), 42 U.S.C. § 4332, the Federal Land Protection
Management Act (“FLPMA”), 42 U.S.C. § 1701 et seq., and
Forest Service regulations, 36 C.F.R. pt. 251. The district
court denied intervention in the Quiet Title Act claim, stating
in its order that appellants have “neither constitutional nor
prudential standing to contest Elko County’s easement claim.”
It did, however, permit the appellants to intervene to assert
their cross-claims against the United States but dismissed
those cross-claims on the ground that the Attorney General’s
decision to settle litigation is not reviewable under the APA.
Nevertheless, the district court judge then assigned to the
case, Judge Hagen, stayed the settlement approval proceeding
until the United States demonstrated that it complied with the
FLPMA, NEPA, and Forest Service regulations.

When Judge Hagen retired, Judge Hunt took over the case,
and lifted the stay. He agreed with the previous Judge’s orders
denying intervention, but disagreed with the order requiring
compliance with the various environmental laws. The court
held hearings on the merits of the settlement, but did not per-
mit the appellants to present evidence or participate as parties.
It then approved the settlement and the appellants filed this
appeal. They contend that the district court failed to follow
5834 UNITED STATES v. THE WILDERNESS SOCIETY
our prior mandate when it denied them full participation in the
settlement approval proceedings, and that the district court
erred in dismissing their cross-claims attacking the terms of
the settlement.

II. Analysis

We turn first to whether the district court failed to follow
the law of the case in denying intervenor-appellants full par-
ticipation in the settlement proceedings. The appellants con-
tend that our mandate required such participation, while the
appellees contend that we did not decide in the prior opinion
that appellants were entitled to participate in the Quiet Title
Act action, and that the district court was correct in denying
them participation as parties in that claim because of their
lack of a property interest in the subject matter of the dispute,
i.e., the right-of-way for the road. Everyone agrees that the
interest of the intervenor-appellants is the use and enjoyment
of the unique aesthetic environment of this wilderness area
and that they have no property interest.

[1] We look first to the scope of our prior mandate. In the
earlier appeal we clearly, and without equivocation, ordered
the district court to permit intervention in the case. Carpenter,
298 F.3d at 1125-26. The case included the Quiet Title Act
claim. Indeed, it was apparent that the controversial settle-
ment could not be discussed outside the context of the Quiet
Title Act claim. At that time, that was all the case was about.
We ordered intervention without requiring intervenors to
assert a property interest in the easement.

[2] To the extent that the United States is arguing that
intervenor-appellants lack any interest in the quiet title action,
we believe that position is foreclosed by our prior opinion, in
which we held that the intervenors were entitled to intervene
because they had the requisite interest in seeing that the wil-
derness area be preserved for the use and enjoyment of their
members. This interest was sufficient to allow them to inter-
 UNITED STATES v. THE WILDERNESS SOCIETY 5835
vene under Federal Rule of Civil Procedure 24(a) and to sat-
isfy any requirements of Article III standing.

Our prior decision is in accord with the only other circuit
case to deal with intervention in a Quiet Title Act action, the
recent Tenth Circuit decision in San Juan County v. United
States, 503 F.3d 1163 (10th Cir. 2007). There the Tenth Cir-
cuit held that a conservation group did not need to claim a
property interest in a road in order to intervene in a quiet title
action. Id. at 1200. Instead, the group’s interest in the environ-
mental impact of vehicular traffic on the road satisfied the
condition of Rule 24(a)(2) that an intervenor claim “an inter-
est relating to the property or transaction which is the subject
of the action.” Id. at 1201.

[3] Although our prior opinion foreclosed any argument
that appellants were not entitled to intervene, we did not sug-
gest that the appellants’ approval of the settlement was
required. We recognize that the intervenors whose claims are
not the subject of a settlement cannot veto that settlement. See
Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland,
478 U.S. 501, 529 (1986) (“[W]hile an intervenor is entitled
to present evidence and have its objections heard at the hear-
ings on whether to approve a consent decree, it does not have
power to block the decree merely by withholding its con-
sent.”). The district court was clearly concerned that the inter-
venor, whose interests were limited to use and enjoyment of
the land, asserted no property interest in the right of way at
issue. This concern does not warrant the exclusion of the
intervenors from participating as parties in ongoing proceed-
ings, including settlement review proceedings. It does mean,
however, that intervenors’ consent is not required for
approval of the settlement between the parties asserting prop-
erty interests.

[4] Because the intervenors were not permitted to partici-
pate in the settlement review proceedings, the approval of the
settlement must be vacated. The district court should not take
5836 UNITED STATES v. THE WILDERNESS SOCIETY
any new action on the settlement before considering the con-
tentions of the intervenors as well as the other parties.

The district court held that it lacked jurisdiction over appel-
lants’ cross-claims under the APA, 5 U.S.C. § 702, because
the Attorney General’s decision to enter into the settlement
agreement was not an “agency action” subject to judicial
review under the APA. To the extent that the district court
meant that decisions of the Attorney General are never
reviewable because they do not result from notice-and-
comment decisionmaking, that conclusion was plainly incor-
rect. “Final actions of the Attorney General fall within the
definition of agency action reviewable under the APA.” Ban-
zhaf v. Smith, 737 F.2d 1167, 1168 (D.C. Cir. 1984) (en banc)
(per curiam); see also Morris v. Gressette, 432 U.S. 491, 500-
01 (1977) (characterizing the Attorney General’s decision not
to file an objection under the Voting Rights Act as an agency
action, but holding that Congress intended such action to be
nonreviewable); Proietti v. Levi, 530 F.2d 836, 838 (9th Cir.
1976) (holding that the Attorney General’s decision whether
to certify that the federal employee defendant was acting
within the scope of his employment under the Federal Drivers
Act was a judicially reviewable agency action under the
APA).

On appeal, the United States does not contend that the deci-
sion to enter the settlement agreement was not an “agency
action.” Instead, it interprets the district court’s holding to
mean that the Attorney General’s decision to settle a case con-
stitutes an action that is “committed to agency discretion by
law” and is therefore unreviewable pursuant to 5 U.S.C.
§ 701(a)(2). See Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 410 (1971) (holding that the “committed
to agency discretion by law” exception to reviewability arises
when there is “no law to apply” to the agency action). Such
a holding would be contrary to federal law.

[5] While it is true that the Attorney General has plenary
discretion under 28 U.S.C. §§ 516 and 519 to settle litigation
 UNITED STATES v. THE WILDERNESS SOCIETY 5837
to which the federal government is a party, see United States
v. Hercules, Inc., 961 F.2d 796, 798 (8th Cir. 1992); see also
United States v. Am. Prod. Indus., Inc., 58 F.3d 404, 407 (9th
Cir. 1995), a decision that is discretionary is not rendered
unreviewable in all circumstances. Rather, “[w]here an action
is committed to absolute agency discretion by law, . . . courts
have assumed the power to review allegations that an agency
exceeded its legal authority, acted unconstitutionally, or failed
to follow its own regulations.” Guadamuz v. Bowen, 859 F.2d
762, 767 (9th Cir. 1988); see also Ness Inv. Corp. v. U.S.
Dep’t of Agric., 512 F.2d 706, 714 (9th Cir. 1975) (holding
that discretionary agency actions are reviewable where the
claim alleges “that an agency . . . abused its discretion by
exceeding its legal authority or by failing to comply with its
own regulations”).

[6] The appellants’ cross-claims allege that the United
States granted the County a property interest in public land
without complying with the procedural mechanisms for relin-
quishing title or issuing rights-of-way set forth in the FLPMA.
Put differently, the appellants argue not that the Attorney
General exercised his discretion poorly but that he settled the
lawsuit in a manner that he was not legally authorized to do—
in other words, that he “exceeded [his] legal authority.” Gua-
damuz, 859 F.2d at 767. Therefore, under Ness and Guada-
muz, the appellants’ cross-claims are reviewable, and the
district court erred in concluding otherwise.

[7] Our conclusion is in line with a decision of the Fourth
Circuit in a similar context. Relying on this Court’s opinion
in Guadamuz, the Fourth Circuit held, in Executive Business
Media, Inc. v. U.S. Department of Defense, 3 F.3d 759, 761
(4th Cir. 1993), that the Attorney General’s decision to settle
a contract case was judicially reviewable where the claim
alleged that the settlement “fail[ed] to comply with competi-
tive bidding procedures.” Acknowledging the Attorney Gen-
eral’s plenary power over litigation to which the federal
government is a party, the Fourth Circuit nevertheless
5838 UNITED STATES v. THE WILDERNESS SOCIETY
explained that “plenary power means absolute authority to
pursue legitimate objectives and does not include license to
agree to settlement terms that would violate the civil laws
governing the agency.” Id. at 762. We find the Fourth Cir-
cuit’s reasoning persuasive in this case. We agree with its
statement that, “[w]e think it alien to our concept of law to
allow the chief legal officer of the country to violate its laws
under the cover of settling litigation. The Attorney General’s
authority to settle litigation for its government clients stops at
the walls of illegality.” Id. at 762. We adopt the reasoning of
the Fourth Circuit in Executive Business.

[8] Here, the appellants’ cross-claims allege that the Attor-
ney General circumvented federal law by entering into the
settlement agreement with Elko County. Because this Court’s
precedent makes clear that such claims are reviewable under
the APA, we reverse the district court’s dismissal of the
appellants’ cross-claims and remand for consideration on the
merits.

The appellants would like to short circuit the district court
proceedings and have us decide the merits of their position
with respect to the settlement. It would not be appropriate,
however, for us to reach the merits of their position until it is
fully legally and factually developed in a record before the
district court. This is what the district court’s denial at inter-
vention prevented.

We are aware that other events have taken place that may
bear on the proceedings in this case. The intervenor-
appellants have filed an independent action in district court to
challenge the Forest Service’s decision to open a road to
vehicular traffic and we are also aware that the construction
of the road has begun. We express no opinion on the merits
of this independent action or whether, on remand, any party
may successfully contend that the matter has become moot.

Accordingly, pursuant to our earlier mandate, we hold that
the district court must permit the intervenors to participate as
 UNITED STATES v. THE WILDERNESS SOCIETY 5839
parties in advocating their position in the Quiet Title Act
action. We must vacate the settlement approval to effectuate
that result. We also hold that the intervenors’ cross-claims are
reviewable under the APA.

The approval of the settlement of the Quiet Title Act claim
is vacated, as is the district court’s order denying the appel-
lants’ motion to intervene. The district court’s dismissal of the
appellants’ cross-claims is reversed. The case is remanded for
further proceedings consistent with this opinion.

VACATED in part, REVERSED in part, and
REMANDED.