Sierra Club v. Espy

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 93-5150
Summary Calendar
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SIERRA CLUB, et al.,

Plaintiffs-Appellees,

VERSUS

MIKE ESPY,
in His Official Capacity
as Secretary of Agriculture, et al.,

Defendants,

TEXAS FORESTRY ASSOCIATION
and
SOUTHERN TIMBER PURCHASERS COUNCIL,

Movants-Appellants.

_________________________

Appeal from the United States District Court
for the Eastern District of Texas
_________________________
March 31, 1994

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Texas Forestry Association ("TFA") and the Southern Timber

Purchasers Council ("STPC"), two trade associations representing

most of the purchasers of timber from the Texas national forests,

appeal the district court's denial of their motion to intervene in

this lawsuit between the Sierra Club and the Secretary of Agricul-
ture. Concluding that movants satisfied the requirements of FED.

R. CIV. P. 24(a) for intervention as a matter of right, we reverse.

I.

Three environmentalist groups initiated a lawsuit in 1985 to

challenge certain United States Forest Service practices for

managing the four national forests in Texas. The initial complaint

alleged that the Forest Service's program for controlling the

southern pine beetle was in violation of the Wilderness Act,

16 U.S.C. §§ 1131-1136, the Endangered Species Act ("ESA"),

16 U.S.C. §§ 1531-1543, and the National Environmental Policy Act

("NEPA"), 42 U.S.C. §§ 4321-4361. The district court denied the

requested relief but issued a preliminary injunction requiring the

Forest Service to adhere to its own prescribed policies for

controlling the pine beetle. See Sierra Club v. Block,

614 F. Supp. 134, 135, 139-41 (E.D. Tex. 1985).

In 1987, the Forest Service issued the "Texas Forest Plan"

(the "Plan") based upon an environmental impact statement ("EIS").

The plaintiffs amended their complaints to allege that the Plan

violated the ESA, NEPA, and the National Forest Management Act

("NFMA"), 16 U.S.C. § 1600 et seq., in addition to their claims

concerning the pine beetle. Because the plaintiffs' administrative

appeals of the Plan were pending, the district court dismissed the

Plan-related claims. See Sierra Club v. Lyng, 694 F. Supp. 1256,

1259 (E.D. Tex. 1988). The court entered a permanent injunction,

however, with regard to ESA violations that were not related to the

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Plan. See Sierra Club v. Lyng, 694 F. Supp. 1260 (E.D. Tex. 1988).

This court affirmed the finding of ESA violations but vacated

portions of the injunction to give the Forest Service the opportu-

nity to formulate its own plan to comply with the ESA. See Sierra

Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991).

In 1990, one plaintiff, the Texas Committee on Natural

Resources ("TCONR"), filed a third amended complaint to address

pine beetle issues. In 1992, TCONR filed its fourth amended

complaint, which included Plan-related claims, challenging the Plan

and the Plan EIS. The magistrate judge recommended that the

government's motion for summary judgment be granted and the

plaintiffs' NFMA and NEPA claims be dismissed. On January 6, 1993,

TCONR filed its objections to the magistrate judge's report and

moved for an "urgent injunction" barring the Forest Service from

proceeding with timber sales in various parts of the Texas national

forests.

On May 12, 1993, the district court granted TCONR's motion,

issuing a preliminary injunction against even-aged logging1 and

1
Even-aged management is one of two systems of forest management
defined in a Forest Service regulation, 36 C.F.R. § 219.3 (1992). Even-aged
management creates stands where trees of essentially the same age class grow
together. Id. Even-aged stands can be produced naturally (e.g., by fires or
insect infestations) or by timber harvesting methods that remove most of the
stand in one cutting (e.g., clearcut, shelterwood, or seed tree cutting
methods). Id. Although most of the tree cover is temporarily removed under
the even-aged cutting method, NFMA allows timber harvesting only when the
stand can be adequately restocked within five years after harvest. 16 U.S.C.
§ 1604(g)(3)(E)(ii); 36 C.F.R. § 219.27(c)(3).
Uneven-aged management, on the other hand, through single-tree and group
selection, results in the growth of trees through a range of diameter or age
classes, maintaining continuous high-forest cover. 36 C.F.R. § 219.3. Even-
aged management mimics natural ecosystems, whereas widespread uneven-aged
management in natural ecosystems has been called "ecologically unsound."
Resources Ltd., Inc. v. Robertson, 789 F. Supp. 1529, 1539 (D. Mont. 1991),
aff'd in part, rev'd in part, 8 F.3d 1394 (9th Cir. 1993).

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rejecting the magistrate judge's conclusion that the Forest Service

had complied with NFMA and NEPA on these timber sales. See Sierra

Club v. Espy, 822 F. Supp. 356, 370 (E.D. Tex. 1993). On June 24,

1993, the Forest Service issued a letter advising prospective

timber purchasers that, as a result of the injunction, it would

refrain from offering not only the planned timber sales challenged

by the plaintiffs but also any timber sales with even-aged

regeneration cuts. This letter triggered TFA and STPC's motion to

intervene on July 9, 1993, which was denied.

II.

Movants argue that the district court erred in refusing to

allow their intervention as a matter of right under FED. R. CIV. P.

24(a). A party seeking to intervene as of right must satisfy four

requirements: (1) The application must be timely; (2) the

applicant must have an interest relating to the property or

transaction that 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 its

interest; and (4) the applicant's interest must be inadequately

represented by the existing parties to the suit. New Orleans Pub.

Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th

Cir.) (en banc) (quoting International Tank Terminals, Ltd. v. M/V

Acadia Forest, 579 F.2d 964, 967 (5th Cir. 1978)), cert. denied,

469 U.S. 1019 (1984). If a party seeking to intervene fails to

meet any one of those requirements, it cannot intervene as a matter

4
of right. Kneeland v. National Collegiate Athletic Ass'n, 806 F.2d

1285, 1287 (5th Cir.), cert. denied, 484 U.S. 817 (1987). TFA and

STPC's right to intervene is a legal issue that we review de novo.

Ceres Gulf v. Cooper, 957 F.2d 1199, 1202 (5th Cir. 1992).2

A.

Movants argue that their motion to intervene was timely.

Determining the timeliness of a motion to intervene entails

consideration of four factors: (1) The length of time during which

the would-be intervenor actually knew or reasonably should have

known of its interest in the case before it petitioned for leave to

intervene; (2) the extent of the prejudice that the existing

parties to the litigation may suffer as a result of the would-be

intervenor's failure to apply for intervention as soon as it knew

or reasonably should have known of its interest in the case;

(3) the extent of the prejudice that the would-be intervenor may

suffer if intervention is denied; and (4) the existence of unusual

circumstances militating either for or against a determination that

the application is timely. Stallworth v. Monsanto Co., 558 F.2d

257, 264-66 (5th Cir. 1977) (citations omitted).

The analysis is contextual; absolute measures of timeliness

should be ignored. Id. at 266 (citation omitted). The requirement

2
Although the timeliness of intervention is generally reviewed for
abuse of discretion, Jones v. Caddo Parish Sch. Bd., 735 F.2d 923, 926 (5th
Cir. 1984) (en banc), where the district court makes no finding regarding
timeliness, we review this factor de novo. Ceres Gulf, 957 F.2d at 1202 n.8.
We agree with the movants that League of United Latin Am. Citizens v.
Clements, 999 F.2d 831 (5th Cir. 1993) (en banc), cert. denied, 114 S. Ct. 878
(1994), is inapposite. There the court denied intervention where the lack of
timeliness was obvious.

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of timeliness is not a tool of retribution to punish the tardy

would-be intervenor, but rather a guard against prejudicing the

original parties by the failure to apply sooner. McDonald v. E.J.

Lavino Co., 430 F.2d 1065, 1074 (5th Cir. 1970) (citation omitted).

Federal courts should allow intervention "where no one would be

hurt and greater justice could be attained." Id. (citation

omitted).

1.

The movants argue that the first factor supports intervention

because they promptly moved for intervention once their interest in

the case became apparent, i.e., after the preliminary injunction

was issued on May 12, 1993. The lawsuit, although pending for

eight years, did not raise the NFMA and NEPA claims with regard to

the Plan until the fourth amended complaint was filed in May 1992.

Even in 1992, movants argue, the TFA and STPC believed that their

interests would not be adversely affected, given the magistrate

judge's report recommending that the NFMA and NEPA claims be

dismissed.

Not until the district court granted the preliminary

injunction did the movants become aware that their interests in

timber sales were affected. TFA and STPC moved to intervene within

two months of the issuance of the preliminary injunction.

The plaintiffs contend that the movants should have become

aware in 1987 of any interest they had concerning timber sales

because the NFMA and NEPA claims were first raised in the second

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amended complaint. The district court indicated that it would

carry the NFMA and NEPA claims in January 1988, pending exhaustion

of administrative remedies. Furthermore, TFA participated as

amicus curiae in the 1989 appeal of the decision concerning even-

aged management under the ESA. Plaintiffs conclude that the NFMA

and NEPA claims have been present for six years and that the

movants' interest in these issues has remained unchanged during

that time.

Having reviewed the January 1988 district court opinion, we

conclude that the status of the NFMA and NEPA claims changed

dramatically over the course of the lawsuit. In its January 1988

opinion, the district court dismissed TCONR's claim relating to the

land and resource management plan. See Sierra Club v. Lyng,

694 F. Supp. 1256, 1259 (E.D. Tex. 1988). Furthermore, the

district court denied Sierra Club's motion to amend its complaint

to allege noncompliance with NFMA, pending exhaustion of

administrative remedies. Id. at 1260. Therefore, TFA and STPC had

reason to believe that their interests were not adversely affected

at that stage.

In Stallworth, 558 F.2d at 264, we rejected the notion that

the date on which the would-be intervenor became aware of the

pendency of the action should be used to determine whether it acted

promptly. Courts should discourage premature intervention that

wastes judicial resources. Id. at 265. A better gauge of

promptness is the speed with which the would-be intervenor acted

when it became aware that its interests would no longer be

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protected by the original parties. Id. at 264.

In this case, the movants legitimately believed that the

Forest Service would defend its timber sales and planning. When

the agency announced on June 24, 1993, that it would apply the

preliminary injunction to all timber sales (not merely the nine

sales challenged by the plaintiffs), movants became aware that the

Forest Service would not protect their interests. Therefore, we

conclude that the first factor )) the length of time during which

the would-be intervenor actually knew or reasonably should have

known of its interest in the case before it petitioned for leave to

intervene )) weighs in favor of the movants.

2.

The second factor )) the extent of prejudice to the existing

parties as a result of the applicant's delay in seeking

intervention )) also weighs in favor of TFA and STPC. Plaintiffs

argue that TFA and STPC's participation in the proceedings would

"severely protract the litigation." But prejudice must be measured

by the delay in seeking intervention, not the inconvenience to the

existing parties of allowing the intervenor to participate in the

litigation. Id. at 265. The movants sought intervention less than

three weeks after the Forest Service issued its June 24, 1993,

letter. We therefore conclude that no prejudice to the existing

parties resulted from the delay in seeking intervention.3

3
Moreover, as movants admit, no prejudice can come from renewed
discovery or pretrial proceedings, because an intervenor "must accept the
(continued...)

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 3.

The third factor is the extent of the prejudice the would-be

intervenor would suffer if its petition for leave to intervene were

denied. Movants argue that the preliminary injunction

substantially reduced the acreage available for timber production

and foreclosed the agency from offering any more timber sales with

even-aged management regeneration cuts in the Texas national

forests. The movants' member companies purchase and process timber

offered from these forests and have property interests in existing

sales contracts.

Plaintiffs claim that TFA and STPC are not prejudiced by

denial of intervention because they already have intervened in the

Forest Service's appeal of the preliminary injunction, and through

that appeal movants could argue for their interpretation of NFMA

and NEPA. Furthermore, since the movants participated in the

development of the Forest Service's land management plan, they can

continue to influence the timber industry. Finally, plaintiffs

assert that no sales contracts are affected, and movants have

failed to show how reduction of acreage adversely affects their

interest.

The intervention in the appeal of the district court's

preliminary injunction cannot adequately substitute for

intervention at the district court level, as many more issues are

at stake in the district court than the single issue now on appeal.

(...continued)
proceedings as he finds them." In re Geisser, 554 F.2d 698, 705 n.6 (5th Cir.
1977). The intervenor has no right to relitigate issues already decided. Id.

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The claim that the movants' interests are adequately represented by

their participation in the development of the Forest Service's land

management ignores the legal rights associated with formal

intervention, namely the briefing of issues, presentation of

evidence, and ability to appeal.

Finally, it is obvious that the economic interests of the

movants are at stake. The movants have a financial interest in the

ability to use the less expensive even-aged harvesting methods, and

they have prospect of injury if the Forest Service cannot deliver

constant volumes of timber. Furthermore, the district court's

holding that NFMA bars even-aged management could injure movants'

member companies in other venues.

4.

The final factor in determining timeliness of the intervention

is the existence of unusual circumstances militating either for or

against a determination that the application is timely. We are

aware of no such specific circumstances pertinent to this case. In

summary, based upon the brief time that had elapsed between the

Forest Service's June 24, 1993, letter and the motion for

intervention, the remoteness of prejudice to the existing parties

resulting from this delay, and the likelihood of prejudice to the

movants if intervention were denied, we conclude that the motion to

intervene was timely.

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 B.

The second requirement for intervention as a matter of right

under rule 24(a) is that the applicant have an "interest" in the

subject matter of the action. This interest must be "direct,

substantial, [and] legally protectable." Piambino v. Bailey,

610 F.2d 1306, 1321 (5th Cir.) (citations omitted), cert. denied,

449 U.S. 1011 (1980). Plaintiffs claim that the movants' interest

is too speculative and generalized to satisfy rule 24. We

disagree.

Movants represent the forest products industry, including the

major purchasers and processors of Texas national forest timber.

These member companies have legally protectable property interests

in existing timber contracts that are threatened by the potential

bar on even-aged management. Since "the `interest' test is

primarily a practical guide to disposing of lawsuits by involving

as many apparently concerned persons as is compatible with

efficiency and due process," Ceres Gulf, 957 F.2d at 1203 n.10

(citation omitted), we conclude that movants had an interest

sufficient to satisfy rule 24.

C.

The third requirement of rule 24(a) is that the applicant must

be so situated that the disposition of the action may, as a

practical matter, impair or impede his ability to protect his

interest. Plaintiffs argue that adverse stare decisis effects will

not supply the requisite disadvantage to satisfy this test. As we

11
have stated in Ceres Gulf, id. at 1204, however, an intervenor's

interest "is impaired by the stare decisis effect of the district

court's judgment." The issue of whether the NFMA bars even-aged

logging affects the movants and, because of the precedential effect

of the district court's decision, an adverse resolution of the

action would impair their ability to protect their interest.

D.

The final requirement for intervention as a matter of right is

that the applicant's interest must be inadequately represented by

the existing parties to the suit. The applicant has the burden of

demonstrating inadequate representation, but this burden is

"minimal." Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10

(1972). The applicant need only show that representation "may be"

inadequate. Id.

Plaintiffs contend that the government adequately represents

the movants' interest because the interests are essentially

identical. We cannot agree with this position. The movants have

demonstrated, through the June 24, 1993, letter applying the

district court's preliminary injunction to all future timber sales,

that the government's representation of their interest is

inadequate. The government must represent the broad public

interest, not just the economic concerns of the timber industry.

Given the minimal burden on the movants to satisfy this

requirement, we conclude that the government's representation of

the intervenors' interest is inadequate.

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 E.

Applying the four requirements of rule 24(a), we must conclude

that the movants were entitled to intervene as a matter of right.

Their motion was timely and indicated a legitimate interest in the

subject matter. Moreover, failure to allow intervention would

impair TFA and STPC's ability to protect their interest because of

the precedential effect of the district court's decisions. We also

agree with the movants that the government's representation of

their interest is inadequate.

III.

Because we conclude that the district court, in spite of its

diligent and evenhanded effort to manage this difficult and complex

case, erred in denying rule 24(a)(2) intervention, we need not

reach the issue of permissive intervention. The order denying

intervention is REVERSED.

Judge Garwood notes his dissent.

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