F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 5 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UTAHNS FOR BETTER
TRANSPORTATION; ROSS C.
“ROCKY” ANDERSON, in his
official capacity as Mayor of Salt Lake
City, Utah,
Plaintiffs,
and
SIERRA CLUB,
Plaintiff - Appellee,
v. No. 01-4117
UNITED STATES DEPARTMENT
OF TRANSPORTATION; NORMAN
MINETA, Secretary, United States
Department of Transportation;
FEDERAL HIGHWAY
ADMINISTRATION; MARY E.
PETERS, Administrator, Federal
Highway Administration; DAVID
GIBBS, Division Administrator of the
Utah Division of the Federal Highway
Administration; U.S. ARMY CORPS
OF ENGINEERS; MICHAEL J.
CONRAD, Colonel, District Engineer
of the Sacramento District; BROOKS
CARTER, Chief of the Intermountain
Regulatory Section; FEDERAL
TRANSIT ADMINISTRATION;
JENNIFER L. DORN, Administrator
of the Federal Transit Administration;
LEE WADDLETON, Regional
Administrator of the Federal Transit
Administration and his successor,
Defendants.
----------------------------
STATE OF UTAH, UTAH
DEPARTMENT OF
TRANSPORTATION,
Intervenors.
------------------------------
ADVOCATES FOR SAFE AND
EFFICIENT TRANSPORTATION,
Movant - Appellant.
Appeal from the United States District Court
for the District of Utah
(D.C. Nos. 1:01-CV-7-J and 1:01-CV-14-J)
Patrick Gallagher, Alex Levinson, Aaron Isherwood, San Francisco, California,
and Joro Walker, Salt Lake City, Utah, for Appellee Sierra Club.
David M. Friedland, Gus B. Bauman, David M. Williamson, Washington, D.C.,
and Kenneth W. Yeates and Mark A. Wagner, Salt Lake City, Utah, for Appellant
Advocates for Safe and Efficient Transportion.
Before SEYMOUR, McWILLIAMS, and GIBSON, * Circuit Judges.
*
The Honorable John R. Gibson, Circuit Judge, United States Court of Appeals for
the Eighth Circuit, sitting by designation.
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GIBSON, Circuit Judge.
The trade association Advocates for Safe and Efficient Transportation, which
refers to itself as ASET, 1 appeals from an order of the district court denying its
motion to intervene in this action brought by the Sierra Club against the United
States Department of Transportation and other agencies and officials of the United
States. See Utahns for Better Transp. v. United States Dep't of Transp., Civil No.
1:01CV0014J (D. Utah May 16, 2001) (order denying intervention). 2 We reverse and
remand with directions to grant ASET's motion to intervene.
Under § 176 of the Clean Air Act, certain regional transportation plans must
receive the approval of the federal government to ensure conformity with that
region's air quality plan. 42 U.S.C. § 7506(c) (1994 & Supp. V 1998); see 40 C.F.R.
§ 93.118(a) (2001) ("The transportation plan . . . must be consistent with the motor
vehicle emissions budget(s) . . . ."). The Sierra Club's complaint alleges, among
1
ASET describes itself as "a coalition of trade associations and organized labor
representing the transportation infrastructure community, including contractors,
subcontractors, laborers, road builders, home builders, designers, engineers, planners,
transportation officials, manufacturers of safety and construction equipment, businesses, and
suppliers to the building and transportation trades."
2
Utahns for Better Transportation and Ross C. "Rocky" Anderson, Mayor of Salt
Lake City, are listed as plaintiffs as a result of consolidating similar claims, which they had
raised separately, with those of the Sierra Club.
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other things, that the federal defendants did not follow proper procedure in approving
various transportation plans and projects in the Wasatch Front region in Utah. The
Sierra Club specifically asks for: "an order vacating the Defendants' approvals of the
Wasatch Front [transportation plans], requiring Defendants to withdraw all such
approvals and prohibiting Defendants from funding, approving or assisting any
capacity-expanding highway project"; an order declaring the transportation plans
invalid; "[a]n injunction vacating Defendants' approvals of the [transportation
plans]"; and "[a]n injunction prohibiting the Defendants from approving, funding or
assisting in any way any capacity-expanding highway project in the Wasatch Front
region, including but not limited to the Legacy Parkway project, until such time as
Defendants comply with the law."
ASET sought to intervene, and in its motion to do so alleged as follows:
(1) ASET has timely moved to intervene before any answer or
responsive paper has been filed;
(2) ASET's members have significant and substantial interests in the
Salt Lake-Ogden region that are explicitly identified in the
statutes implicated and claims raised in this action. Among other
interests, (a) ASET's members have existing contracts and
pending bids for approved transportation projects specifically
attacked in this lawsuit; (b) ASET's members also have economic
opportunities, including future contract awards and bid
opportunities, at stake; (c) ASET's members include
transportation officials that will be impacted by any decision in
this matter; (d) ASET's members use and enjoy the present and
planned transportation infrastructure at issue in this litigation for
their business, personal, commuting, and recreational needs; (e)
ASET and its members have participated for years in the
development of the transportation plans and programs targeted in
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the Complaint; and finally, (f) ASET represents Salt Lake area
citizens and businesses who will be marginalized, absent
intervention, by Plaintiff's attack on Utah transportation planning
in this and another lawsuit;
(3) ASET members' interests will be substantially impaired by this
lawsuit and the relief requested. This lawsuit threatens to halt all
projects, project funding, project contracts and bids, and
implementation of approved transportation infrastructure
improvements that are crucial to ASET members' interests.
ASET will be unable to protect these interests absent intervention
because this lawsuit circumvents the public participation process
mandated by federal and state transportation planning statutes
and destabilizes and delays the planning process; and
(4) The Federal Defendants cannot adequately represent ASET's
interests because of potentially adverse positions regarding
existing and future contracts and the fact that Federal Defendants
do not represent ASET's specific economic and user interests.
The district court conducted a hearing on May 1, 2001. 3 The hearing
commenced with counsel for ASET announcing that a compromise had been reached
between ASET and the Sierra Club, "which would in general entail ASET
participating in only certain counts and only on the second phase of briefing," but
that the parties needed some time to negotiate details. The district court responded
by saying: "No. I think we need to decide now whether you're here or whether you're
not and if you're here in what form you're here. I have some genuine question myself
as to whether you're here at all." ASET's counsel asserted that ASET "should be
allowed to intervene because our members have particular interests that are at stake
3
The State of Utah and the Utah Department of Transportation also filed motions to
intervene. At the hearing, no one objected to their intervention and their motions were
granted.
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in this litigation and as a trade association we're entitled to represent their interests.
They have asked us . . . to represent them." ASET was really "in the same situation
as Sierra Club," ASET's counsel continued, "representing its individual members
here." The following excerpts from the hearing transcript are representative of the
remainder of the discussion between the district court judge and counsel for ASET: 4
THE COURT: Yeah, but you've got to have an interest you see,
you got to have an interest.
MR. FRIEDLAND: The interest is the contract that the members
have –
THE COURT: Well if they want to vindicate their contracts tell
them to intervene or tell them to make an application to intervene.
MR. FRIEDLAND: They may clearly do that but they would
prefer that the trade association litigate these issues on their behalf and
the Supreme Court has said that trade associations may do so.
THE COURT: I don't know of any case that says that you may
vindicate a specific contract in which you don't have an interest.
....
THE COURT: Yeah. Well I'm trying to define the association's
interest separately and apart from the contractors' interests. The
association has different interests than the contractors do. The
contractors haven't asked to intervene here as we pointed out before.
MR. WILLIAMSON: Yes, Your Honor.
THE COURT: The association wants to do well by their
members I'm sure.
MR. WILLIAMSON: Your Honor, the principal –
THE COURT: I'm interested in differentiating between the
Association's interest and the contractors' interest.
MR. WILLIAMSON: Your Honor, there is no, the interests are
identical. We in a sense are entitled to borrow our individual members'
4
Counsel for the United States were present at the hearing, but made no comment
directed to ASET's motion to intervene. The government has also chosen not to file a brief
before this court.
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interests as a trade association. That principal is beyond the vale. It's
established as I mentioned in 3 or 4 cases.
After ASET's counsel had stated that the relief the Sierra Club was seeking
included "a declaration that the regional transportation plan is illegal," the court
concluded:
THE COURT: As I understand it they are nothing [sic] seeking
relief against you and indeed they're not seeking relief against any of
your members. The relief that they are seeking is footed on the alleged
deficiencies of the process and purportedly the failure on the part of
affected governmental units to do what they claim is an inadequate job
and I think under the circumstances what I ought to do here is to deny
your motion to intervene as a party which I will do but I will grant you
amicus status.
You're welcome to give voice to your point of view as amicus .
...
I.
The statements of the district judge reveal his concerns about ASET speaking
for its members. The judge appeared willing to consider petitions to intervene by the
individual members, but expressed the view that ASET had no standing to assert its
members' rights. The district court's conclusion, however, is contrary to the teaching
of the Supreme Court. In Hunt v. Washington State Apple Advertising Commission,
432 U.S. 333 (1977), Chief Justice Burger, speaking for a unanimous court, stated:
[W]e have recognized that an association has standing to bring suit on
behalf of its members when: (a) its members would otherwise have
standing to sue in their own right; (b) the interests it seeks to protect are
germane to the organization's purpose; and (c) neither the claim asserted
nor the relief requested requires the participation of individual members
in the lawsuit.
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Id. at 343; accord New York State Club Ass'n, Inc. v. City of New York, 487 U.S.
1, 9 (1988) ("Under Hunt, an association has standing to sue on behalf of its
members when those members would have standing to bring the same suit."). The
district court erred in rejecting the motion on the ground that ASET had no standing
to assert the rights of its members.
II.
Under Federal Rule of Civil Procedure 24(a)(2):
[A]n applicant may intervene as of right if: (1) the application is
"timely"; (2) "the applicant claims an interest relating to the property or
transaction which is the subject of the action"; (3) the applicant's
interest "may as a practical matter" be "impair[ed] or impede[d]"; and
(4) "the applicant's interest is [not] adequately represented by existing
parties."
Utah Ass'n of Counties v. Clinton, 255 F.3d 1246, 1249 (10th Cir. 2001) (quoting
Coalition of Arizona/New Mexico Counties for Stable Econ. Growth v. Dep't of
Interior, 100 F.3d 837, 840 (10th Cir. 1996) (quoting Fed. R. Civ. P. 24(a)(2))). The
district court did not discuss any of the factors enumerated in Rule 24(a) with respect
to intervention as of right, but instead merely offered ASET the opportunity to file
a brief as amicus curiae. However, "the right to file a brief as amicus curiae is no
substitute for the right to intervene as a party in the action under Rule 24(a)(2)."
Coalition, 100 F.3d at 844. The Sierra Club did not argue that ASET's petition to
intervene was not timely. Since the district court did not make findings regarding
the remaining requirements, we look directly to the record in conducting our
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analysis. See Utah Ass'n of Counties, 255 F.3d at 1249-50; Nat'l Farm Lines v.
Interstate Commerce Comm'n, 564 F.2d 381, 382 (10th Cir. 1977).
A.
We have had frequent occasion to analyze what sort of interest is required by
Rule 24(a)(2). In Coalition we said that the intervenor's would-be interest in the
proceedings must be "direct, substantial, and legally protectable." 100 F.3d at 840
(quoting Vermejo Park Corp v. Kaiser Coal Corp., 998 F.2d 783, 791 (10th Cir.
1993)). The sufficiency of an applicant's interest is a highly fact-specific
determination. Id. at 841. We observed further that "[o]ur court has tended to
follow a somewhat liberal line in allowing intervention." Id. (quoting Nat'l Farm
Lines, 564 F.2d at 384). We have recently described the interest test as "primarily
a practical guide to disposing of lawsuits by involving as many apparently concerned
persons as is compatible with efficiency and due process." Utah Ass'n, 255 F.3d at
1251-52 (quoting Coalition, 100 F.3d at 841).
The threat of economic injury from the outcome of litigation undoubtedly
gives a petitioner the requisite interest. In National Farm Lines v. Interstate
Commerce Comm'n, 564 F.2d 381, 382 (10th Cir. 1977), representatives of motor
vehicle common carriers sought to intervene in an action to declare a section of the
Interstate Commerce Act and regulations promulgated under it unconstitutional. The
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representatives alleged that a decision adverse to the interest of the carriers would
"render unenforceable a statutory scheme which directly protects their economic
interests and would, as a result, subject them to unregulated competition which
would be highly injurious." 564 F.2d at 382. We reversed the district court's denial
of intervention. Id. at 384.
In light of this precedent, we conclude ASET has the requisite interest to
intervene as of right. The grounds ASET sets forth for intervention outline specific
economic interests. In fact, at oral argument the Sierra Club stated it was prepared
to concede ASET members had existing contracts relevant to this case. In addition,
ASET's membership includes transportation, planning, and engineering officials who
have experience with, and have contributed to, the transportation plans at issue here.
ASET further has submitted that its members, like other businesses and individuals
in the Salt Lake region, depend on the transportation system for commuting and
recreation, delivering materials and equipment, and conducting their business. Some
of these interests are similar to those relied on by the Sierra Club in its own
complaint.
In National Resources Defense Council, Inc. v. United States Nuclear
Regulatory Commission, 578 F.2d 1341 (10th Cir. 1978), potential recipients of
licenses for the operation of uranium mills in New Mexico sought to intervene in an
action by environmentalists against government agencies seeking to prohibit the
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agencies from issuing licenses without first preparing environmental impact
statements. The court first observed that the outcome of the litigation could have
profound economic effect on the would-be intervenors. This economic effect gave
them an interest within the meaning of Rule 24(a)(2). This court then further stated
that:
There are other reasons for allowing intervention.
There is some value in having the parties before the court
so that they will be bound by the result. American Mining
Congress represents a number of companies having a wide
variety of interests. This can, therefore, provide a useful
supplement to the defense of the case.
Id. at 1346. The same can be said of ASET here. See Utah Association, 255 F.3d
at 1254 ("[T]he stare decisis effect of the district court's judgment is sufficient
impairment for intervention under Rule 24(a)(2).") (quoting Coalition, 100 F.3d at
844).
B.
"This court has pointed out that 'the question of impairment is not separate
from the question of existence of an interest.'" Utah Ass'n, 255 F.3d at 1253
(quoting Natural Res. Def. Council, 578 F.2d at 1345). In this case, to decide
whether ASET's interests would be impaired by the Sierra Club's suit requires our
attention to the Sierra Club's complaint, which seeks an order vacating the approval
of the transportation plans, requiring the federal defendants to withdraw all such
approvals, and prohibiting them from funding, approving, or assisting any capacity-
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expanding highway projects. With ASET's interest in the transportation plans
described above, we have no hesitation in concluding that the Sierra Club's action
may as a practical matter impair or impede ASET's ability to protect its members'
interests. See id. at 1253.
C.
With ASET demonstrating timeliness, interest, and impairment, Rule 24(a)(2)
entitles ASET to intervene as of right unless that interest is adequately represented
by existing parties. As we observed in Utah Association, "that burden is the
'minimal' one of showing that representation 'may' be inadequate." 255 F.3d at 1254
(quoting Sanguine, Ltd. v. United States Dep't of Interior, 736 F.2d 1416, 1419 (10th
Cir. 1984)). "The possibility that the interests of the applicant and the parties may
diverge 'need not be great' in order to satisfy this minimal burden." Id. (quoting
Natural Res. Def. Council, 578 F.2d at 1346). In this case, ASET would be relying
on governmental entities to represent its interests. We have repeatedly pointed out
that in such a situation the government's prospective task of protecting "not only the
interest of the public but also the private interest of the petitioners in intervention"
is "on its face impossible" and creates the kind of conflict that "satisfies the minimal
burden of showing inadequacy of representation." Id. at 1255 (quoting National
Farm Lines, 564 F.2d at 384). In addition, ASET can provide expertise the
government agencies may be lacking. See id. (pointing out that sufficient showing
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on this aspect of Rule 24(a)(2) is made when the would-be intervenor has expertise
the government may not have). Finally, as in Utah Association, the government
entities' "silence on any intent to defend the [intervenors'] special interests is
deafening." Id. at 1256 (quoting Conservation Law Found. v. Mosbacher, 966 F.2d
39, 44 (1st Cir. 1992)).
III.
We thus reverse the order of the district court and remand with directions to
enter an order allowing ASET to intervene as of right.
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