dissenting:
I dissent from the majority’s holding that fifteen separate parties must be allowed to intervene as of right in the district court’s consideration of all the issues in this lawsuit. I would affirm the district judge’s practical and even-handed resolution of a difficult situation.
To understand the district judge’s ruling, it is necessary to set out the facts in more detail than does the majority. The original underlying lawsuit was a challenge to the adequacy of an Environmental Impact Statement prepared by the Department of Interior in support of its recommendation of legislation to establish the Snake Birds of Prey National Conservation Area. When Congress refused to enact legislation creating the conservation area, however, Secretary Andrus issued Public Land Order No. 5777, withdrawing nearly one-half million acres of the public domain from selection under the Desert Lands Act and the Carey Act. As a result of the Secretary’s action, plaintiffs filed a supplemental complaint challenging the adequacy of Secretary Andrus’s compliance with the congressionally mandated procedures governing administrative withdrawals of the public domain. Thus, at the time of the Audubon Society’s application for intervention, the district court was confronted with two questions: the validity of Secretary Andrus’s withdrawal order, and the adequacy of the environmental impact statement supporting the Secretary’s legislative recommendation.
Faced with the disparity of these two issues and with the number of intervenors, the district judge stated that he would bifurcate the trial and consider first the validity of the challenged order of the Secretary. In doing so, he observed that a decision in favor of the government as to the first issue would render the second issue moot. He emphasized that the first issue *530was purely legal and could be resolved on summary judgment. Indeed, the parties informed him that they had agreed to file cross-motions for summary judgment and that any issues of disputed fact could be resolved by stipulation. The second issue, on the other hand, would require extensive factual findings.
No party contends that the judge had not made up his mind to bifurcate the trial or that he would fail to do so. That he had not yet entered the bifurcation order when this appeal was taken is not relevant to the issues before us. The district judge examined the intervention application in light of the forthcoming bifurcation. He properly focused his attention at this point on whether applicants had a right to intervene in the first phase of the trial. After determining that the first issue was purely legal and deciding that the government would advance the proper legal arguments, he concluded that nothing would be gained by permitting applicants to intervene at the first phase of the trial. He denied the application and invited the applicants to file amicus briefs. His denial, however, was without prejudice as to subsequent application in the event of changed conditions. He specifically stated that he would reconsider the application “if this case eventually gets to the point where we are going to have to decide it on the question of evidence.” Thus, the applicants could reapply for intervention (1) at the second phase of the trial, if reached, when their avian expertise would be helpful to the court, (2) during the first phase if changed conditions warranted intervention, e.g., if evidentiary considerations became necessary, or (3) at the appeals stage if applicants wished to appeal a summary judgment on the first issue.
Why must the district judge’s practical approach be reversed as a matter of law? The majority’s answer is apparently twofold. First, the district judge erred in dividing the issues before him and considering the applicants’ right to intervene as to each issue. Second, under the precedent of this circuit all applicants in this case must be permitted to intervene whenever they request. I disagree with both of these conclusions.
Taking first the district judge’s division of the trial, the majority states that an intervenor’s interest and adequacy of representation must be measured in relation to the “subject of the action,” and cannot be measured in relation to the issue before the court during the particular stage of litigation when the motion was filed. See Majority Opinion at 528. This statement implies that if an applicant for intervention qualifies under rule 24(a)(2) to intervene in some part of a lawsuit, he must be allowed to intervene at all stages and as to all issues. Rule 24 does not require such a conclusion.
Although the rule is silent as to whether the district judge can impose conditions on intervention as of right, the advisory committee’s Note states that “[a]n 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.” See Fed.R.Civ.P. 24 advisory committee note. Other circuits have limited intervention to a particular issue or stage of the trial. See, e.g., United States v. American Telephone & Telegraph Co., 642 F.2d 1285, 1290-94 (D.C.Cir.1980) (MCI allowed to intervene as of right only for the limited purpose of taking an appeal on a collateral issue, not to introduce evidence before the trial court); Bradley v. Milliken, 620 F.2d 1141, 1142-43 (6th Cir.1980) (petitioner permitted to intervene at remedial phase for the limited purpose of presenting evidence on the question whether, historically, school district had practiced de jure segregation of Hispanos); Smuck v. Hobson, 408 F.2d 175 (D.C.Cir.1969) (en banc) (scope of intervention allowed, i.e., which issues intervenor may argue, should be determined by the nature of intervenor’s interest); Fox v. Glickman Corp., 355 F.2d 161, 164-65 & n. 3 (2d Cir.1965) (intervention was properly denied during liability phase but should be allowed during dam*531ages phase), cert. denied, 384 U.S. 960, 86 S.Ct. 1585, 16 L.Ed.2d 672 (1966); see also Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 752-56 (1968) (urging courts to be creative in limiting intervention as of right).1
The majority incorrectly contends that these cases are “inapposite.” Indeed, if the majority believes that “in each of these cases, intervention was analyzed in relation to the current stage of proceedings,” the reasoning of the majority supports my contention that the district judge should consider the intervention application as it relates to the first phase of the trial, which is the current stage of the proceedings. I do not argue that we should deny intervention because of a “mere possibility that a future intervention application might be granted,” but because the applicants are adequately represented by the government in the first phase of trial.
The thrust of these and other similar cases is that the district court must retain flexibility when ruling on intervention applications. This is particularly true in complex public interest litigation which typically involves multiple parties and issues and often attracts multiple applications for intervention. If the trial is not to become unmanageable, the district court must have some discretion to limit the issues on which or the stages during which a party may intervene. Therefore, I would uphold the district court’s decision to bifurcate the trial and consider intervenors’ application separately as to each issue.
It might be argued that although intervention rights may be limited, an application for intervention must be at least partially granted if the trial contains some issues for which the applicant’s interests will not be adequately represented. This is essentially what the district judge did. If form is to be elevated over substance, the district judge could have granted the applicants the right to intervene but limited their participation to the second phase of trial rather than denying the application without prejudice. Under this analysis, however, the proper action for us to take would be to direct the district court to allow intervention in the second phase of trial, but uphold his decision on the first issue.
Assuming the district court has the discretion to consider the intervention application as it applies to the two separate phases of the trial, the next question is whether the applicants’ interests in the first phase of the trial would be adequately represented by the United States Attorney. The majority relies on two cases, Idaho v. Freeman, 625 F.2d 886 (9th Cir.1980) (Freeman), and Washington State Building & Construction Trades Council v. Spellman, 684 F.2d 627 (9th Cir.1982), cert. denied,-U.S.-, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983) (Spell-*532man). These two eases, bereft of any legal analysis on the intervention issue, do cause problems for subsequent application. But unless our court is to take the position that all public interest groups are always entitled to intervene as a matter of right, there must be some limitation to Freeman and Spellman. I suggest the limit has been met here.
In Freeman, we stated that the application for intervention asserted an interest “which is incompletely represented here.” 625 F.2d at 887. In Spellman, we concluded that “the public interest group that sponsored the initiative, was entitled to intervention as a matter of right under Rule 24(a).” 684 F.2d at 630. As an order of the Secretary is involved in the first part of this case, applicants obviously cannot be considered sponsors. More specifically, however, in neither Freeman nor Spellman was advice given as to the record upon which the conclusions were made. Assuming the “adequacy of representation” question is a legal one, its resolution is based on specific factual underpinnings. Thus, it is difficult to discern whether the case before us is controlled by Freeman and Spellman, since those cases did not explain why, based on the record, the intervenors’ interests were not adequately represented.
The majority attempts to marshal facts to support its conclusion that the intervenors’ interests are incompletely represented here. Its reasoning, however, is flawed. The majority first points to the applicants’ expertise and its participation in the preparation of the environmental impact statement. This avian expertise, however, is irrelevant to the question presented in the first part of the bifurcated trial. Indeed, we must presume the government would possess the expertise on whether or not it followed its own procedures.
The majority next points to Secretary Watt’s previous connection with the Sagebrush Rebellion. Since the case is being litigated by the Justice Department, however, it is unclear what influence Secretary Watt could exert on the case even if he desired to do so. The Attorney General has the exclusive and plenary power to supervise and conduct all litigation to which the United States is a party, unless the law directs otherwise. 28 U.S.C. §§ 516, 519. His authority is most clearly expressed in section 5 of Executive Order No. 6166, June 10, 1933, reprinted in 5 U.S.C. § 901 at 337 (1976):
As to any case referred to the Department of Justice for prosecution or defense in the courts, the function of decision whether and in what manner to prosecute, or to defend, or to compromise, or to appeal, or to abandon prosecution or defense, now exercised by any agency or officer, is transferred to the Department of Justice.
Thus, the Attorney General may agree to dismissal of actions brought by the government, see Confiscation Cases, 74 U.S. (7 Wall.) 454, 458, 19 L.Ed. 196 (1868), compromise or settle cases or refuse to do so, see United States v. Newport News Shipbuilding and Dry Dock Co., 571 F.2d 1283, 1287-88 (4th Cir.), cert. denied, 439 U.S. 875, 99 S.Ct. 212, 58 L.Ed.2d 189 (1978), or even deny the agency the right to appear as amicus curiae in a case, see Hughes Aircraft Co. v. United States, 534 F.2d 889, 901 (Ct.Cl.1976).
The majority suggests that although in theory the Justice Department controls the litigation, in reality the agency makes the critical determinations. The only support for this assertion, however, is a statement from one former Justice Department employee made twenty-two years ago. The asserted position espoused by this ex-employee seems inconsistent with the duty placed upon the Justice Department by the statutes and Executive Order referred to above. If we accept his claim that the Justice Department will merely advance the agency’s arguments unless they are “completely without merit,” we would need to assume that present employees of the Justice Department will, in essence, shirk their *533duty and violate their oath. This court should not credit such a view of one former employee and rely on it to reach its conclusion.
Nor is the majority position buttressed by citing United States v. Mattson, 600 F.2d 1295 (9th Cir.1979). There, we stated only that, absent independent statutory authority for the suit, 28 U.S.C. § 516 does not confer standing on the federal government to bring an action alleging violation of the constitutional rights of mentally retarded individuals confined in a state hospital. Id. at 1297, n. 1. Our brief discussion of section 516 provides no support for the majority’s statement that the Justice Department’s “role is not totally independent of the administration’s concerns and thus, the wishes of the Interior Department are, by no means, wholly irrelevant.”
The majority further emphasizes that Mr. Watt and not the Justice Department is the defendant in this case. However, it is not really Secretary Watt who is the party of interest in this case, but the United States government.
Even if Secretary Watt’s previous connection raised the theoretical possibility that the government may be incapable of representing the applicants’ interest, that possibility has been refuted in this case. As the majority admits, the record indicates that the United States Attorney has independently and vigorously defended the government’s position. Given the frequent changes of cabinet and administrative personnel, I would not create a per se rule which states that the government is not capable of effectively representing the interests of its citizens whenever an official of a department being sued has formerly been connected with the group that is bringing the suit.
Thus, the applicants have not alleged facts to demonstrate that their interest in the first part of the case is inadequately represented as was the case in Freeman and Spellman. They can point to none of the usual reasons for permission to intervene as of right. They possess no special expertise; they possess no special economic interests that will not be vigorously defended by the government; they have shown no divergence in trial strategy from the government. See United States Postal Service v. Brennan, 579 F.2d 188, 191 (2d Cir.1978). Further, as the district judge correctly observed, since the first issue is likely to be resolved on summary judgment, intervention is presumably unnecessary. Id. Applicants were specifically allowed to file amicus briefs in which they may assert and argue the legal issues involved.
Therefore, I would not reverse what appears to me to be a thoughtful and practical method of proceeding with this trial. The applicants are protected. If circumstances change, they have been invited by the district court to reapply for intervention.
A final weakness in the majority disposition is that it fails to confront the problems it causes in requiring the district judge to allow all fifteen applicants to intervene. If each may intervene, may each have separate counsel and make separate presentations? The majority brushes aside this difficult problem merely by stating that, as of now, only one attorney has represented them. But the majority holds that each has a right to intervene. The majority provides no analysis which would forbid any applicant intervening by right to retain a separate spokesman. I would not reach this issue because I conclude the district judge should not be reversed in his evenhanded solution to the problem.
. The majority’s statement that intervention in these cases was limited only because of the timing of the applications is incorrect. In both Fox v. Glickman, 355 F.2d 161 (2d Cir.1965), cert. denied, 384 U.S. 960, 86 S.Ct. 1585, 16 L.Ed.2d 672 (1966), and United States v. American Telephone & Telegraph Co., 642 F.2d 1285 (D.C.Cir.1980) (AT & T), for example, the applicant sought review of the district judge’s denial of his application to intervene at trial. In AT & T, intervention was sought on a collateral issue; in Fox v. Glickman, it was sought as to the entire action. In both cases, had the appellate court determined that intervention of right was mandated by rule 24(a) it would have been required, absent harmless error, to remand the suit to the district court to retry the case or issue with participation by the applicant. In both cases, however, the court decided that intervention at trial on the particular issue was unwarranted because the parties were adequately represented at that stage, and the potential for inadequacy of representation arose only at a later point in the proceedings. In AT & T, this inadequacy arose when the government failed to appeal the district court’s decision on the substantive issue on which intervention had been sought. 642 F.2d at 1293-94. In Fox v. Glickman, the inadequacy would arise when it came time to compute damages. 355 F.2d at 164 n. 3. In both cases, intervention was only granted for a later stage of the proceedings and not for the stage at which the applicant was seeking to intervene. See AT & T, 642 F.2d at 1287, 1290-94; Fox v. Glickman, 355 F.2d at 163-65 & n. 3. Thus, intervention was not limited by the timing of the application but because representation was inadequate only at particular points of the proceedings.