9th Circuit Loosens up its 3rd Party Intervention Standard in NEPA Litigation

The "federal defendant" rule was developed through case law in the U.S. Court of Appeals for the 9th Circuit.  The rule categorically precludes private parties and state and local governments from intervening of right as defendants on the merits of NEPA actions.  The rationale for this rule is that such parties lack a "significantly protectable" interest warranting intervention of right under Rule 24(a)(2), because NEPA is a procedural statute that binds only the federal government.

However, the 9th Circuit recently abandoned the "federal defendant" rule in Wilderness Society v. U.S. Forest Service, No. 09-35200, slip op. (9th Cir. Jan. 14, 2011).  Wilderness Society arises out of the U.S. Forest Service's adoption of a travel plan that designated 1,196 miles of roads and trails for use by motorized vehicles in the Minidoka Ranger District of Idaho's Sawtooth National Forest.  The central issue for the 9th Circuit was whether the lower court should have applied the "federal defendant" rule to deny intervention to three groups representing recreation interests.

Diamondfield Jack Campground
Minidoka Ranger District

The 9th Circuit abandoned the "federal defendant" rule, reversed the lower court for applying it, and opined as follows:

When considering motions to intervene of right under Rule 24(a)(2), courts need no longer apply a categorical prohibition on intervention on the merits, or liability phase, of NEPA actions. To determine whether putative intervenors demonstrate the "significantly protectable" interest necessary for intervention of right in a NEPA case, the operative inquiry should be whether the "interest is protectable under some law" and whether "there is a relationship between the legally protected interest and the claims at issue."  A putative intervenor will generally demonstrate a sufficient interest for intervention of right in a NEPA action, as in all cases, if "it will suffer a practical impairment of its interests as a result of the pending litigation." 

(Citations omitted.)  Among other things, the court based its decision on the facts that the "federal defendant" rule was (1) at odds with the normal standards it applies in all other intervention of right cases in cases asserting violations of environmental statutes and (2) out of step with all but one of its sister circuits.

This opinion opens up the door for potential third party defendants in NEPA cases who would have previously been denied intervention under the "federal defendant" rule.

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