Sagebrush Rebellion, Inc. v. Watt

713 F.2d 525, 20 ERC 1290

Opinions

SCHROEDER, Circuit Judge.

We must decide whether the district court erred in denying the application of the National Audubon Society to intervene as of right under Rule 24(a) of the Federal Rules of Civil Procedure. The Sagebrush Rebellion, Inc. brought the underlying lawsuit in 1980 against the Secretary of the Interior. The suit challenges the legality of actions taken by former Interior Secretary Cecil D. Andrus when he recommended the creation of a Snake River Birds of Prey National Conservation Area in Idaho and then, by public order pursuant to the Federal Land Policy and Management Act, 43 U.S.C. § 1714, withdrew nearly 500,000 acres of land in the proposed conservation area from selection and entry under the Desert Land Act, 43 U.S.C. § 321 et seq., and the Carey Act, 43 U.S.C. § 641.¹ See Public Land Order No. 5777, 45 Fed.Reg. 78,688 (1980).

The intervenor-appellants seek to intervene on behalf of the defendants. In addition to the National Audubon Society, applicants in intervention and appellants include five local chapters of the National Audubon Society, five non-profit Idaho organizations with environmental, conservation and wildlife interests and four Idaho residents. As set forth in the Motion to Intervene, all of these applicants in intervention share the same common interest insofar as the subject matter of this litigation is concerned; they joined in a single application and are represented by the same attorney. We therefore do not face, and need not address, any issue of multiple applications for intervention by applicants with differing interests.² For convenience, appellants will hereafter be referred to in the singular or as the “Audubon Society.”

The Audubon Society is a non-profit organization which, according to its motion to intervene, is devoted to the protection of birds and other animals and their habitats. The plaintiff Sagebrush Rebellion is a non-, profit organization which, according to its complaint, is dedicated to the goal of multiple use management of public lands. Both groups participated actively in the administrative process surrounding Secretary Andrus’ actions to establish the Birds of Prey Conservation Area. The Audubon Society supported creation of such a preserve and the plaintiff Sagebrush Rebellion opposed it, urging alternatives.

The Audubon Society filed its motion to intervene in February, 1981. In denying it, the district court held that the Audubon Society interest was insufficient because it had no interest in the land which was the subject matter of the lawsuit and that, even assuming it had an adequate interest in the case, its interest was adequately represented by Secretary of the Interior James G. Watt, Secretary Andrus’ successor. The court also refused to stay its proceedings pending appeal. This court stayed any action on the summary judgment matters pending before the district court and expedited the appeal in order to resolve the intervention question. We now reverse the district court’s order denying intervention.

Denial of a motion to intervene as of right under Rule 24(a)(2) is appealable as a final order within the meaning of 28 U.S.C. § 1291. County of Fresno v. Andrus, 622 F.2d 436, 438 (9th Cir.1980), citing Blake v. Pallan, 554 F.2d 947, 951 n. 5 (9th Cir.1977). We therefore have jurisdiction of the Audubon Society’s appeal.

Rule 24(a) of the Federal Rules of Civil Procedure provides:

Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

The rule was amended in 1966 in an effort, according to the advisory committee note, to permit courts to look at practical considerations in determining whether an absentee seeking intervention is being adequately represented.' See Fed.R.Civ.P. 24 advisory committee note. This court has adopted a four-part test for deciding applications as of right pursuant to the rule:

(1) the applicant’s motion must be timely; (2) the applicant must assert an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that without intervention the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the other parties.

Smith v. Pangiliiian, 651 F.2d 1320,1323-24 (9th Cir.1981). See also County of Fresno v. Andrus, 622 F.2d at 438; Blake v. Pallan, 554 F.2d at 951.

More recently we have had occasions to apply this test in contexts which closely parallel this one. In Washington State Building & Construction Trades v. Spell-man, 684 F.2d 627 (9th Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983), we held that a public interest group was entitled as a matter of right to intervene in an action challenging the legality of a measure which it had supported. This court stated that “Rule 24 traditionally has received a liberal construction in favor of applications for intervention.” Id. at 630. Similarly, in Idaho v. Freeman, 625 F.2d 886 (9th Cir.1980), we held that the National Organization for Women had the right to intervene in a suit challenging procedures for ratification of the proposed Equal Rights Amendment to the Constitution of the United States, a cause which that organization had championed.

In neither of these cases did this court have any difficulty determining that the organization seeking to intervene had an interest in the subject of the suit and that the interest was not adequately represented by an existing party. Further, the court •had no question that disposition of either suit might, as a practical matter, impair the ability of the organization to protect its interest.

In light of our recent decisions there can be no serious dispute in this case concerning either the timeliness of the motion to intervene or of the existence of a protectable interest on the part of the applicant which may, as a practical matter, be impaired. An adverse decision in this suit would impair the society’s interest in the preservation of birds and their habitats. See Washington State Building & Construction Trades v. Spellman, supra; Smith v. Pangilinan, supra; Idaho v. Freeman, supra.

There is no support for the dissent’s novel proposition that the intervenor’s interest and adequacy of representation are measured in relation to the particular issue before the court at the time of the motion and not in relation “to the subject of the action,” as provided in Rule 24. The cases relied on by the dissent, United States v. American Telephone and Telegraph Co., 642 F.2d 1285 (D.C.Cir.1980); Bradley v. Milliken, 620 F.2d 1141 (6th Cir.1980); Smuck v. Hobson, 408 F.2d 175 (D.C.Cir.1969) (en banc); and Fox v. Glickman Corp., 355 F.2d 161 (2d Cir.1965). cert. denied, 384 U.S. 960, 86 S.Ct. 1585, 16 L.Ed.2d 672 (1966), are inapposite. In each of these cases, intervention was analyzed in relation to the current stage of proceedings; intervention was only “limited” in the sense that the intervenor’s request was itself necessarily limited by the time of application. None of these cases supports a complete denial of intervention based on the mere possibility that a future intervention application might be granted. The dissent sees the possibility of a summary disposition of the case at an early stage and of appellant’s participation in the appeal. These possibilities militate in favor of intervention at this stage, not against it. Appellant should be permitted fully to participate in making the record on which it may have to rely on appeal. See New York Public Interest Research Group v. Regents of the University, 516 F.2d 350, 352 (2d Cir.1975).

In assessing the adequacy of the Interior Secretary’s representation, we consider several factors, including whether the Secretary will undoubtedly make all of the intervenor’s arguments, whether the Secretary is capable of and willing to make such arguments, and whether the intervenor offers a necessary element to the proceedings that would be neglected. County of Fresno v. Andrus, 622 F.2d at 438-39; Blake v. Pallan, 554 F.2d at 954-55.

In addition to having expertise apart from that of the Secretary, the intervenor offers a perspective which differs materially from that of the present parties to this litigation. Secretary Andrus is no longer Secretary of the Interior. His successor, Secretary Watt, was previously head of the Mountain States Legal Foundation, the organization which is representing the plaintiff Sagebrush Rebellion in this action. These facts support intervention and also give rise to appellant’s sobriquet for the case as “Watt v. Watt.”

In allowing intervention in this case we are mindful that the mere change from one presidential administration to another, a recurrent event in our system of government, should not give rise to intervention as of right in ongoing lawsuits. We also agree that thus far in this litigation, the government, through the United States Attorney, has continued professionally and diligently to defend the actions of Secretary Andrus; there is no indication in this record of collusion or of any other conduct detrimental to the applicant’s interest. Nevertheless, such a showing is not required. This court has consistently followed Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686 (1972) in holding that the requirement of inadequacy of representation is satisfied if the applicant shows that representation of its interests “may be” inadequate and that the burden of making this showing is minimal. See Smith v. Pangilinan, 651 F.2d at 1325; Legal Aid Society of Alameda County v. Dunlop, 618 F.2d 48, 50 (9th Cir.1980); Johnson v. San Francisco Unified School District, 500 F.2d 349, 353 (9th Cir.1974). We therefore find no basis for departing from the approach this court took in Washington State Building & Construction Council v. Spellman, supra, and Idaho v. Freeman, supra.

Nor can we agree with the dissent’s suggestion that Secretary Watt, the party to the litigation, is without influence because he is represented by the Department of Justice. This suggestion ignores the fact that the Department of Justice represents its client, Mr. Watt, for the Justice Department is the Interior Secretary’s counsel. See 5 U.S.C. § 3106 (general bar to employment of lawyers outside the Department of Justice for the conduct of agency litigation). While we recognize that, despite its representation capacity, the Justice Department, through the Attorney General, has authority to supervise and conduct the litigation and make significant substantive strategy decisions, see 28 U.S.C. §§ 516, 519; Executive Order No. 6166, June 10, 1933, reprinted in 5 U.S.C. § 901, its role is not totally independent of the administration’s concerns and thus, the wishes of the Interior Department are, by no means, wholly irrelevant. See United States v. Mattson, 600 F.2d 1295, 1297 n. 1 (9th Cir.1979) (section 516 serves as a housekeeping provision). As one former Justice Department official stated:

The Department recognizes that, subject to the overriding obligation of its attorneys to support the Constitution and laws of the United States, its function is to represent the agencies; it will take an opposing view only when it believes an agency’s position to be completely without merit.

Stein, “Inconsistency in Government Litigation,” 64 Harv.L.Rev. 759, 767 (1951).³ Moreover, Rule 24 requires that we look to the adequacy or inadequacy of representation by “existing parties,” not counsel. We therefore cannot ignore the fact that Mr. Watt is a principal defendant in the case and we cannot assume that the Department of Justice is acting independent of Interior Department policy.

The order of the district court denying intervention as of right is reversed. The matter is remanded with instructions to the district court to grant the motion for intervention and to conduct further proceedings in the case.

1 . The Desert Land Act was enacted in 1877, 19 Stat. 377, to facilitate the reclamation and settlement of desert lands by private entrymen. See United States v. Hanson, 167 F. 881, 883 (9th Cir.1909). The Carey Act was enacted in 1894, 28 Stat. 422, to further this process by ceding desert lands to states who would presumably see that they were speedily reclaimed. Id.

2 . The dissent’s fear that we may be permitting fifteen different intervenors to speak with fifteen different voices is unfounded. Throughout these proceedings intervenors have asserted a unitary interest and spoken with one voice. Nothing in this opinion should be interpreted as approving participation by the intervenors on any other basis.

3 . An Interior Department attorney is listed “of counsel” on the federal defendants’ brief.