Western court scraps intervention restrictions for enviro lawsuits
by Cally Carswell
In mid-January, the 9th Circuit Court of Appeals published a 13-page opinion with a simple message: mea culpa. A panel of judges tossed the little-known but long-standing "federal defendant rule," which had limited or prevented private groups, local and state governments from joining environmental lawsuits.
The 9th Circuit, which oversees hundreds of millions of acres of public land in the West, routinely handles high-stakes legal wrangling over issues such as the Roadless Area Conservation Rule, salmon protections and spotted owl habitat. But as courtroom dramas go, this latest one was anticlimactic: For the most part, everyone agreed.
The federal defendant rule, followed only in the 9th Circuit, denied non-federal parties the right to intervene on the government's behalf in lawsuits filed against federal agencies under the National Environmental Policy Act, which requires agencies to size up the environmental impacts of proposed actions and allow public comment. Last December, Paul Turcke, a lawyer representing a coalition of motorized recreation groups, asked an 11-judge panel convened in Pasadena, Calif., to kill the rule, which had been invoked to prevent his clients from intervening in a lawsuit over motorized travel in Idaho's Sawtooth National Forest. Thirty-seven "friends of the court," including oil and gas groups, local and state officials, water districts, tribes, farming and ranching interests and ORV groups, chimed in to support Turcke's appeal. No one defended the rule -- not even the environmental groups who filed the suit.
The rule has always been a double-edged sword for environmentalists, says Erik Schlenker-Goodrich, a Western Environmental Law Center lawyer. "We used it to try to keep motorized groups out of our litigation," he admits, but the rule was also employed to keep environmentalists on the sidelines.
Just 31 days after the December hearing, the panel tossed the rule, effectively loosening the standard for intervention in environmental lawsuits in seven states in our region. It was an important move, but not world-changing. It will give groups whose interests are affected by active litigation a better chance to participate in lawsuits that can have far-reaching effects on environmental policy. But it's unlikely to swamp the courts, Turcke explains: "It's not black and white -- (it's not) 'you're in or you're out.' " Groups still have to prove they deserve to be involved, by participating in the grueling administrative processes that precede litigation, for instance. "(And) even if you can get into a case, you still have to figure out a way to meaningfully participate in it," Turcke adds.
The now-defunct rule was born in the late 1980s, when the Portland Audubon Society sued the Bureau of Land Management for allowing old-growth logging in spotted owl habitat in Oregon. The district court let a timber association intervene on some of the claims in the case -- those charging violations of the Migratory Bird Treaty Act, for example. But the court said the timber group couldn't intervene on the case's NEPA claim, because only the federal government was bound by NEPA and the group's "purely economic interest" wasn't protected by the act. That reasoning became the foundation for the federal defendant rule, which was affirmed by the appellate court in 1989.
Theoretically, the rule applied only to NEPA cases. But its logic could be harnessed to keep interest groups out of almost any environmental lawsuit. In a 2006 Endangered Species Act case, for example, environmental groups used the rule to oppose intervention by grazing interests in a suit alleging that two federal agencies didn't adequately consider grazing's impact on threatened steelhead and bull trout in Oregon.
The judge agreed that the grazing groups had no right to intervene as full parties, but he allowed them limited participation in one phase of the lawsuit.
There are two paths outside parties can use to intervene: They can prove they have a right to do so by passing a four-part test; or, they can simply request the judge's permission. The federal defendant rule applied only to the first path, giving judges some leeway. But even when intervention was allowed, it often came with restrictions -- if a group wasn't granted full-party status in a lawsuit, it wouldn't have the privilege to file its own motions or present evidence, for instance. And some districts were more permissive than others. Montana, Turcke says, was generally liberal about allowing intervention, while courts in the Northwest more frequently limited or denied it. Now these inconsistencies should become fewer since judges will be able to apply the more objective four-part test to intervention petitions.
It's difficult to say what the results might be, or whether intervention will become more common. But intervenors have played decisive roles in many lawsuits. Motorized recreation advocates were instrumental in driving a lawsuit filed by the Southern Utah Wilderness Alliance against the BLM all the way to the Supreme Court. The High Court's decision placed significant restrictions on the public's ability to force federal agencies to follow their own land-management plans. Similarly, when the feds didn't appeal an Idaho court's 2001 decision to halt implementation of the Roadless Rule, environmental intervenors appealed instead. The injunction was lifted as a result, and the Roadless Rule is now the law of the land in most Western states.
"Most courts are pretty liberal about (intervention) because it's appropriate to have everybody impacted at the table," says Karin Sheldon, executive director of Western Resource Advocates, a conservation group that handles many environmental lawsuits. "(The federal defendant rule) was an anomaly and it's been corrected. I think it's the right move."© High Country News