Ninth Court Drops ‘Federal Defendant’ Rule

In a decision filed January 14, 2011, the Ninth Circuit Court of Appeals abandoned their “federal defendant” rule.

The rule, which had been established in prior court cases, categorically prohibited private parties and state and local governments from intervening in cases and claims brought under the National Environmental Policy Act (NEPA) before the Ninth Circuit Court.

In their Jan 14 decsion the Ninth Court threw that rule out because it is at odds with the Federal Rule of Civil Procedure 24(a)(2) and the standards applied by federal judges in all other intervention of right cases.

The case the Court ruled on is The Wilderness Society and Prairie Falcon Audubon, Inc., Plaintiffs-Appellees, v. the United States Forest Service; Jane P. Kollmeyer; Scott C. Nannenga, Defendants.

The entire text of the decision is [here].

Represented by Intervenors and amicus briefers were the Magic Valley Trail Machine Association, Idaho Recreation Council, the Blue Ribbon Coalition, Inc., the Motorcycle Industry Council and Specialty Vehicle Institute of America, the Alaska Oil and Gas Association, Coos County, Grant County, Harney County, and Wallowa County of Oregon, the American Petroleum Institute, the Chamber of Commerce of the United States, Croplife America, National Association of Manufacturers, the National Petrochemical and Refiners Association, the Western States Petroleum Association, the Steens Mountain Landowner Group, the Oregon Cattlemen’s Association, Oregon Cattlemen’s Public Lands Committee, Oregon Farm Bureau Federation, the Public Lands Council, and National Cattlemen’s Beef Association, Safari Club International, Southern Nevada Water Authority (Las Vegas, Nevada), Western Urban Water Coalition, the Kootenai Tribe of Idaho, the Confederated Salish and Kootenai Tribes, the Coquille Indian Tribe, the Kalispel Tribe, the Shoshone-Bannock Tribes, the Confederated Tribes of Siletz Indians, the Metlakatla Indian Community, the Idaho Governor’s Office of Species Conservation, C.L. “Butch” Otter, Governor of Idaho, the State of Alaska, the American Forest Resource Council, the Alaska Forest Association and Douglas Timber Operators (OR).

The opinion, written by Judge Barry G. Silverman on behalf of an eleven judge panel, states:

Today we revisit our so-called “federal defendant” rule, which categorically prohibits private parties and state and local governments from intervening of right on the merits of claims brought under the National Environmental Policy Act of 1969 (”NEPA”), 42 U.S.C. §§ 4321 et seq. Because the rule is at odds with the text of Federal Rule of Civil Procedure 24(a)(2) and the standards we apply in all other intervention of right cases, we abandon it here. When construing 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 a putative intervenor demonstrates the “significantly protectable” interest necessary for intervention of right in a NEPA action, the operative inquiry should be, as in all cases, whether “the interest is protectable under some law,” and whether “there is a relationship between the legally protected interest and the claims at issue.” Sierra Club v. EPA, 995 F.2d 1478, 1484 (9th Cir. 1993). Since the district court applied the “federal defendant” rule to prohibit intervention of right on the merits in this NEPA case, we reverse and remand so that it may reconsider the putative intervenors’ motion to intervene.

This action arises out of the Forest Service’s adoption of a travel plan that designated 1,196 miles of roads and trails for 796 THE WILDERNESS SOCIETY v. USFS use by motorized vehicles in the Minidoka Ranger District of Idaho’s Sawtooth National Forest. Two conservation groups, the Wilderness Society and Prairie Falcon Audubon, Inc., claim that the Forest Service violated NEPA by, among other things, failing to prepare an Environmental Impact Statement and failing to consider reasonable alternatives to the travel plan that would protect certain ecologically sensitive watersheds and wildlife habitats within the District. Their complaint seeks declaratory and injunctive relief invalidating the travel plan, limiting motorized vehicles to previously authorized routes, and prohibiting off-road vehicles from traveling outside designated routes, pending compliance with NEPA and other environmental statutes.

The issue central to this appeal arose when three groups representing recreation interests, the Magic Valley Trail Machine Association, Idaho Recreation Council, and Blue Ribbon Coalition, Inc., moved to intervene to counter the conservation groups’ contention that the Forest Service’s plan was too accommodating to users of to users of motorized vehicles. The conservation groups opposed intervention, and the Forest Service took no position on the issue. Applying our Circuit’s “federal defendant” rule, the district court denied intervention of right. The district court also denied permissive intervention on the grounds that the recreation groups had not adequately participated in the administrative process and “would not add any further clarity or insight” to the litigation.

The recreation groups appealed, arguing that the district court erred in failing to consider limited intervention and abused its discretion in denying permissive intervention. They also urged us to consider modifying or eliminating the “federal defendant” rule. A three-judge panel of our court ordered the parties to brief whether the court should review the case en banc to consider abandoning the rule. The recreation groups again urged the court to do so. The conservation groups took no position on the propriety of the rule. We granted en banc review. …

The upshot is that states, counties, and other affected groups and individuals may now intervene when an enviro-litigious group attempts to use the courts and NEPA law to inflict their own twisted policies on federal agencies.

Before this ruling states, counties, and others had to sit on the sidelines while high-paid enviro attorneys argued with US Dept. of Justice attorneys. Very often, terrible rulings were issued that significantly harmed people and entities who were categorically excluded from the courthouse.

“No day in court for you,” said the Ninth Court. But now that (court invented) exclusion from justice has been lifted.

Thank you, Ninth Circuit Court, for lifting ever so slightly your boot heel off the necks of Americans.

By the way, other federal District Courts either don’t recognize the “federal defendant” rule or have yet to confront it.

Also by the way, Obama’s U.S. Justice Dept. opposed lifting the rule. In case you were wondering.

10 Feb 2011, 11:58am
by Forrest Grump

Wow, this is a big deal and has been reported NOWHERE that I can see, at least not in the Montana papers.
Time to go to the Ninth Circus page and download. Stunned, I am.



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