Appeals Court Opens Access for Intervenors in Environmental Lawsuits

SAN FRANCISCO, California, January 14, 2011 (ENS) – The 9th Circuit Court of Appeals today abandoned a longstanding rule that has prevented private parties, state and local governments from intervening on the merits of lawsuits brought under the National Environmental Policy Act, NEPA, in Western states.

All 11 of the Ninth Circuit judges sitting rather than just the usual three-judge panel, heard arguments December 13, 2010 on the so-called federal defendant rule, which is unique to the 9th Circuit.

Judge Barry Silverman, writing the court’s unanimous opinion, said, “We no longer see any principled reason to categorically prohibit intervention of right on the merits of NEPA actions while approving of it in cases challenging the federal government’s compliance with other environmental and administrative statutes. Given the many different scenarios in which NEPA claims arise, courts should be permitted to engage in the contextual, fact-specific inquiry as to whether private parties meet the requirements for intervention of right on the merits, just as they do in all other cases.”

The underlying case, Wilderness Society v. U.S. Forest Service, was originally brought in the U.S. District Court in Idaho when The Wilderness Society and Prairie Falcon Audubon, Inc. sued the Forest Service seeking greater restriction on off-road vehicle access to the Minidoka Ranger District in Idaho’s Sawtooth National Forest.

Hiking trail in Sawtooth National Forest (Photo by John Kercher)

The legal action arose out of the 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.

The conservation groups claim 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.

Boise Attorney Paul Turcke argued the case on behalf of three motorized vehicle organizations who were denied intervention on the side of the Forest Service.

“Today’s decision will positively affect all non-federal interests who rightfully seek a meaningful role in public lands litigation affecting them,” Turcke said.

“These positive effects extend, ironically, to the preservation groups who opposed our intervention here and provided the foundation and fuel for this appeal,” he said.

Represented by Turcke, The BlueRibbon Coalition, the Magic Valley Trail Machine Association and the Idaho Recreation Council sought to intervene on the side of the Forest Service.

The district court determined that their intervention was prevented by the Federal Defendant Rule.

The recreation groups appealed the decision with initial arguments presented in March 2010 to a three-judge 9th Circuit panel by Turcke and the Western Environmental Law Center.

The Western Environmental Law Center said that today’s ruling “opens the door for WELC to continue with its case seeking to protect the Sawtooth National Forest’s land and water from the ravages of unmanageable roads.”

In addition to the recreation groups, 37 other parties filed “friend of the court” briefs on the issue, including conservation, recreation, commercial groups, state and local governments, Indian tribes, regional water authorities and the federal government.

The underlying case remains pending in the District of Idaho.

Turcke told ENS in an interview that full court calendars mean judges may have less time to hear intervenors but a balance must be struck between efficent operation of the courts and public access to the courts and judges making the right decisions.

“There are several examples in our environmental law where significant developments before the U.S. Supreme Court came about as a result of the work of intervenors,” Turcke said.

“My point is that whatever practical complication it might present is offset by the benefits of increasing access to the courts and helping the courts get it right in the end.”

Intervenors still will have to satisfy a four part test. Their motion must be timely and it must demonstrate a legally protectable interest relevant to the subject matter of the case. Intervenors must demonstrate that their interest could be impaired as a paractical matter by the outcome of the lawsuit and also that their interest is not already adequately represented by an existing party to the case.

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