Ninth Circuit Relaxes the Standard for Private Party Intervention in NEPA Lawsuits
In a decision of interest to applicants for federal permits and those who access and use natural resources managed by the federal government, the Ninth Circuit Court of Appeals has abandoned its "federal defendant" rule, which for over twenty years has created a procedural roadblock for private parties, tribes and state and local governments seeking to intervene as defendants in claims brought against federal agencies under the National Environmental Policy Act ("NEPA").
In The Wilderness Society v. U.S. Forest Service, Case No. 09-35200, 2011 WL 117627 (9th Cir. Jan. 14, 2011), an en banc panel held that the Court's limitation on intervention in NEPA cases is at odds with the Federal Rules of Civil Procedure and the standards applied by the Court in other intervention cases.
Background of the Case
This case arose from a NEPA challenge to the U.S. Forest Service's adoption of a travel plan designating some 1,200 miles of roads and trails for use by motorized vehicles in Idaho's Sawtooth National Forest. Plaintiffs, The Wilderness Society and Prairie Falcon Audubon, Inc., alleged that the Forest Service had violated NEPA by, among other things, failing to prepare an Environmental Impact Statement, and sought to invalidate the travel plan and prohibit off-road vehicles ("ORVs") from traveling outside designated routes.
Three organizations representing ORV interests moved to intervene in defense of the Forest Service's travel plan. The district court, applying the "federal defendant" rule, denied the ORV organizations' motion to intervene, both as a matter of right and permissively.
Prior Application of the "Federal Defendant" Rule
The Ninth Circuit first articulated the "federal defendant" rule in a 1989 decision, Portland Audubon Society v. Hodel, 866 F.2d 302 (9th Cir. 1989). In that and subsequent cases, the Ninth Circuit—and district courts within the Circuit—have consistently denied private party motions to intervene of right as defendants on the merits of NEPA claims on the grounds that such parties lack a "significantly protectable interest" warranting intervention of right because NEPA is a procedural statute that binds only the federal government.
Rationale for Abandoning the "Federal Defendant" Rule
In Wilderness Society, the Ninth Circuit reversed course. The Court held that its bright-line rule was incompatible with the plain text of Federal Rule of Civil Procedure 24(a)(2), which only requires prospective intervenors of right to demonstrate "an interest relating to the property or transaction that is the subject of the action." The Court concluded that the "federal defendant" rule mistakenly focuses on the underlying legal claim instead of the property or transaction that is the subject of the lawsuit. Rule 24(a)(2), noted the Court, does not limit intervention of right only to "parties liable to the plaintiffs on the same grounds as the defendant."
The Court also held that the "federal defendant" rule was at odds with its "liberal policy" favoring intervention and the standards it developed to implement that policy. The Court noted in particular that the "federal defendant" rule stood in contrast to its "consistent approval of intervention of right on the side of the federal defendant in cases asserting violations of environmental statutes other than NEPA."
Impact of the Decision
The Court's ruling in Wilderness Society removes a major procedural roadblock in NEPA litigation by clearing the way for private parties, tribes and state and local governments, to intervene to defend federal agency permitting and resource management decisions in NEPA cases. Going forward, district courts within the Ninth Circuit will evaluate intervention claims by private parties in NEPA cases using the same fact-specific inquiry they apply in all other cases.
The relevant inquiry is whether "the interest is protectable under some law" and "there is a relationship between the legally protected interest and the claims at issue." A showing that the private party will "suffer a practical impairment of its interests as a result of the pending litigation" will generally satisfy this standard, and will become the focus of the intervention of right inquiry going forward in NEPA lawsuits.
This change will diversify the parties who can successfully intervene as of right as defendants in Ninth Circuit NEPA cases, consistent with party trends in other types of environmental litigation. Thus, in situations involving NEPA review in connection with issuance of federal permits to private parties, it is likely that both private parties and public agencies may seek to intervene of right on the side of the federal government to defend the NEPA process. Similarly, in cases involving challenges to NEPA review associated with other types of federal actions, such as land use planning decisions, it is likely that a wide variety of interest groups and public agencies may attempt to intervene of right as defendants.