The Ninth Circuit Court of Appeals en banc has ruled that the “federal defendant” rule, which categorically prohibits private parties and state and local governments from intervening of right on the merits of claims brought under NEPA, is no longer law in the Ninth Circuit. The Wilderness Soc’y v. U.S. Forest Serv., No. 09-35200 (9th Cir. 1/14/11).

Abandoning the rule, which had already been abandoned by all U.S. circuit courts except for the Seventh and Ninth, the court stated that the rule was “at odds with the text” of Federal Rule of Civil Procedure 24(a)(2) and the standards applied in other intervention-of-right cases. The ruling arose out of a challenge to the Forest Service’s plan to designate about 1,200 miles of roads and trails for use by motorized vehicles in Idaho’s Sawtooth National Forest.

Several conservation groups challenged the plan, arguing that it violates NEPA’s environmental assessment provisions. The rule became an issue when three recreational advocacy groups tried to intervene on the Forest Service’s side. The district court applied the federal defendant rule and denied the intervention. The groups appealed, urging the appellate court to modify or eliminate the rule. In addition to the appellants, 37 “friends of the court” joined the lawsuit to argue that the “categorical prohibition on the ability of private parties and state and local governments to intervene of right as defendants on the merits of NEPA cases” should be abandoned.

The Ninth Circuit agreed and, reversing the district court, held, “[s]uch a bright-line rule is inconsistent with the text of Rule 24(a)(2), which requires only ‘an interest relating to the property or transaction that is the subject of the action.’” The court also said, “[c]ourts should be permitted to conduct [an] inquiry on a case-by-case basis, rather than automatically prohibiting intervention. . . .”