Alaska Forest Ass'n v. U.S. Department of Agriculture

66 F. App'x 716

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 29, 2003
• Docket: No. 01-35549; D.C. No. CV-99-00013-J-JKS
• Status: Published

Opinions

MEMORANDUM

*

This is a NEPA case. The plaintiffs won their case, and the defendant (the federal government) elected not to appeal the final judgment. Before the time to appeal expired, however, the private intervenors moved in the district court to intervene as a matter of right under Federal Rule of Civil Procedure 24(a); in the alternative, if the court denied that motion, the intervenors asked for permissive intervention under Rule 24(b). The district court granted the main motion under Rule 24(a) and, therefore, did not reach the alternative request for permissive intervention. The intervenors appealed on the merits. Their appeal can proceed only if they have standing; otherwise, the appeal on the merits must be dismissed.

In Kootenai Tribe v. Venenan, 313 F.3d 1094 (9th Cir.2002), we held that private intervenors may not intervene in a NEPA action under Rule 24(a) as a matter of right. That holding applies with equal force here. Thus, the district court’s ruling under Rule 24(a) was erroneous.

We also held in Kootenai, however, that in some circumstances permissive intervention may be allowed. Id. at 1108-14. The district court did not reach this issue, but the issue was preserved. The court has not had an opportunity to consider our later-issued opinion in Kootenai or to consider whether permissive intervention may be appropriate under the criteria set out in that opinion and in our other relevant precedents. We therefore remand the case for further consideration.

REMANDED.

The parties shall bear their own costs on appeal.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.