United States Court of Appeals,
Fifth Circuit.
No. 97-50102.
SAVE OUR SPRINGS ALLIANCE INCORPORATED; Mark Kirkpatrick, Dr.,
Plaintiffs-Appellees,
v.
Bruce BABBITT, Secretary of the Department of the Interior,
Defendant,
State of Texas, Movant-Appellant.
June 23, 1997.
Appeal from the United States District Court for the Western
District of Texas.
Before JOLLY, DUHÉ and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In this case, the State of Texas appeals the district court's
denial of its motion to intervene in ongoing litigation between an
environmental group and the U.S. Fish and Wildlife Service
concerning the proposed listing of the Barton Springs Salamander as
an endangered species under the Endangered Species Act, 16 U.S.C.
§ 1531 et seq.
Following a previous lawsuit concerning the Salamander,
various Texas agencies and the U.S. Fish and Wildlife Service
entered into a Conservation Agreement designed to study potential
threats to the Salamander and to protect its habitat. The Fish and
Wildlife Service subsequently withdrew its proposed listing of the
Salamander. Plaintiff Save Our Springs Alliance filed suit on
October 29, 1996, against Bruce Babbitt, U.S. Secretary of the
Interior, challenging the Secretary's action in withdrawing the
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proposed listing.
As the district court specifically found, various Texas
agencies and the Texas Attorney General's office were served with
courtesy copies of the complaint. On November 18, the plaintiffs
moved to expedite briefing. The district court granted this
unopposed motion on December 12, and also granted the Secretary's
motion to limit review to the administrative record. The case
would therefore be determined solely on the basis of briefs filed
in cross-motions for summary judgment.
On January 23, 1997, one day before initial briefs were due,
the State of Texas moved to intervene, and included a proposed
answer raising various affirmative constitutional defenses that
would likely require discovery outside the administrative record.
Although Texas indicated in its motion to intervene that it would
also file a brief as amicus curiae, it never did so. Nor did Texas
file briefs as a party pending the court's decision on its motion
to intervene. On February 7, the district court denied Texas'
motion to intervene, principally on the ground that it was
untimely, and Texas now appeals.
"We review the district court's finding of timeliness for
abuse of discretion and the other requirements [of intervention] de
novo." Sierra Club v. Glickman, 82 F.3d 106, 108 (5th Cir.1996)
(citing Sierra Club v. Espy, 18 F.3d 1202, 1205 & n. 2 (5th
Cir.1994)). There are several factors that are relevant to the
determination whether an application to intervene is timely,
including: (1) the length of time the proposed intervenor knew or
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should have known of its interest in the case, (2) the extent of
the prejudice that existing parties may suffer by the proposed
intervenor's delay in moving to intervene, (3) the extent of the
prejudice that the would-be intervenor would suffer if intervention
is denied, and (4) any unusual circumstances that bear upon the
timeliness of the application. Espy, 18 F.3d at 1205.
Texas delayed nearly three months before filing its motion to
intervene, waiting until the very day before initial briefs were
due. Although the absolute measure of time elapsed is not
relevant, Espy, 18 F.3d at 1205, under the circumstances of this
case, the three months between the filing of the complaint and the
date on which opening summary judgment briefs were due is too long
a delay. Texas offers a list of reasons why it is interested in
the litigation and complains that the Secretary is not adequately
defending the Conservation Agreement. But these considerations
cannot sustain Texas' argument in view of its failure to timely
file its motion. Much more to the point here, Texas has offered no
plausible explanation for waiting to file its motion until the very
last day before initial briefs were due.
Texas argues that the timeliness of its application should be
measured from the time that Texas became aware that the Fish and
Wildlife Service would not adequately represent its views, which,
it claims, was not until after it had fully reviewed the lawsuit.
Yet the cases cited by Texas are cases in which some independent
identifiable event—such as the issuance of a preliminary
injunction—provides a reason for measuring timeliness from sometime
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other than the date upon which the would-be intervenor became aware
of the suit. See, e.g., Espy, 18 F.3d at 1205.
Texas has not identified such an independent event from which
we might measure the timeliness of its application to intervene.
In fact, Texas has not offered any reasonable explanation for its
three-month delay. Texas argues that the Fish and Wildlife Service
cannot adequately represent its interests because only Texas can
fully protect its own regulatory scheme, and because it intends to
challenge the constitutionality of the Endangered Species Act. This
criticism of the Fish and Wildlife Service's ability to represent
Texas' interests may be accurate, but it does nothing to explain
the delay. The facts that Texas itself is most knowledgeable about
its own regulatory scheme and that the federal government is
unlikely to support a constitutional challenge to the Endangered
Species Act are not recent developments.
Texas cannot claim that it was surprised that the Secretary's
withdrawal of the proposed listing would be challenged as a
justification for its less than timely response. For several years
now, Save Our Springs Alliance has pursued litigation designed to
force the Secretary to list the Salamander as endangered. That
Save Our Springs Alliance would attempt to challenge the
Secretary's reliance upon the Conservation Agreement was certainly
predictable. Furthermore, Texas' involvement in the prior
litigation left it fully aware of the facts and legal issues
concerning the listing of the Salamander. Texas cannot claim that
it required some three months to analyze the basis of the lawsuit
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so that it could determine whether to intervene.
Texas essentially argues that it did not realize that the
Secretary would fail to assert and defend Texas' interests to the
same degree as Texas itself would, until after Texas had perused
the complaint for some three months. In view of the long,
politically charged and contentious history of this litigation, we
find Texas' attempts to justify its delay unpersuasive.
Accordingly, we conclude that the district court did not abuse its
discretion when it denied Texas' motion to intervene as untimely,
and the district court's judgment is therefore
AFFIRMED.1
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Texas' pending motion to stay further proceedings in the
district court, which we originally determined to carry with the
case, is now DENIED.
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