Allard v. Frizzell

HOLLOWAY, Circuit Judge,

concurring in the result:

I concur in the result reached by the majority, although I have doubt about the holding that the requisite interest for intervention is not shown in accordance with Rule 24(a), as amended in 1966.1

Despite that doubt, I would sustain the denial of intervention as of right. The district court’s order says that without deciding where the burden of persuasion lies, the court thinks that the Department of Justice will adequately defend the constitutionality of the federal statutes and regulations under attack and that the applicants’ only legitimate concern in this case is in being sure that the constitutionality of the laws is fully argued. I accept that assessment by the court, and on that basis would sustain the denial of intervention under Rule 24(a). And I agree with the majority in finding no abuse of discretion in the denial of permissive intervention under Rule 24(b).

. Among other things, the plaintiffs’ complaint alleges that the Migratory Bird Act and regulations thereunder are unconstitutional for vagueness, in violation of the Fifth Amendment (R. 12). They further aver that the Eagle Protection Act and regulations thereunder are vague and indefinite, in violation of the Fifth Amendment, and that this Act is also invalid under the Tenth Amendment (R. 18-19).

In connection with these statutes the Government concurred that the applicants have certain interests (R. 102-03). And the Audubon Society has supported the statutes and has been represented on two advisory committees within the Fish and Wildlife Service as the Government represented to the district court (R. 104-05). Under Rule 24(a) such interests in the regulatory scheme may now be sufficient, cf. Nuesse v. Camp, 128 U.S.App.D.C. 172, 385 F.2d 694, 699-701. Without going into this doubtful area, I would simply affirm on the adequacy of representation point.