Legal Alerts

Ruling Means Parties With Legally Protectable Interests Can Intervene

The Ninth Circuit, in a unanimous decision, overturned its “federal defendant” rule (Rule) that prevented state and local governments and private parties from intervening as defendants in the merits phase of National Environmental Policy Act (NEPA) actions. Now, these parties will be allowed to intervene when they have a legally protectable interest that is affected by the claim at issue. 

The Wilderness Society v. USFS involved the U.S. Forest Service’s adoption of a travel plan for roads and trail use by motorized vehicles within a national forest in Idaho. Conservation groups brought a lawsuit claiming that the Forest Service violated NEPA when approving the plan. A group of recreation groups sought to intervene to counter any claims that plan was too lenient. The district court denied this request.

The recreation groups appealed, and many private party interests filed amicus briefs. The initial panel of Ninth Circuit justices asked the parties for briefing on whether the court should abandon the Rule. The court then granted “en banc” review, a special appellate procedure where a larger panel of justices hear the case.

To determine whether to grant a motion to intervene of right, courts apply a four-part test. Relevant to this case, the second element is whether the applicant has a significantly protectable interest. Under the Rule, state and local government and private parties could never satisfy this element. The rationale was that NEPA is a procedural statute that only binds the federal government. Therefore, an applicant’s economic or similar interest is not a “protectable interest.” The Rule did allow limited intervention in the remedial phase of NEPA litigation but never on the merits.

The Ninth Circuit, in its ruling issued last Friday, decided to abandon the Rule for three reasons. First, the Ninth Circuit recognized its rationale mistakenly focused on the underlying legal claim and not the property or transaction at issue. Even though NEPA is a federal procedural statute, NEPA claims affect third-party interests. Second, the Rule conflicted with the standards for allowing intervention of right in other environmental claims. Third, only one other circuit that had considered the issue had adopted the restrictive Rule.

Under the decision, the new standard for permitting intervention of right in these cases is whether the third party has a legally protectable interest and whether there is a relationship between the interest and the claim. Practically speaking, this decision will allow state and local governments and private parties to intervene when NEPA challenges affect their interests. Rather than hoping the federal government adequately addresses their concerns, parties will be able to fully participate in the litigation to protect their rights.

For more details regarding the impact of this decision on the ability of state and local governments and private parties to intervene as defendants in NEPA actions, please contact Bill Thomas or Roderick Walston or any attorney in Best Best & Krieger’s Environmental Law and Natural Resources Practice Group.

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