Under a decision released last week by the U.S. Court of Appeals for the Ninth Circuit, private parties who intervene as defendants in a lawsuit against the United States are free to appeal an adverse ruling, even if the government acquiesces in the district court’s judgment. The Court’s decision rejected the Justice Department’s argument for dismissal of the appeal, and held that “the government is not the only party who has standing to defend the validity of government regulations.”

The opinion in Western Wastersheds Project v. Kraayenbrink, No. 08-35359, grew out of a lawsuit challenging 2006 revisions to the Bureau of Land Management’s public lands grazing regulations. The American Farm Bureau Federation and the Public Lands Council intervened as Defendants in the lawsuit against BLM. Although the District of Idaho ruled that the regulations were invalid, the government decided not to pursue an appeal.

When the intervenor defendants sought review in the Ninth Circuit, the United States filed an amicus brief arguing that the intervenors lacked standing to appeal. This brief marked at least the third time that the Justice Department had tried to prevent an intervenor from appealing a successful challenge to government regulations. Neither of the two previous cases, however, resulted in a decision on the merits.

The Ninth Circuit firmly rejected the government’s attempt to prevent intervenors from obtaining appellate review in cases where the United States—for whatever reason—no longer wants to fight an adverse district court decision. Indeed, the Western Watersheds opinion found it “well established” that “the government is not the only party who has standing to defend the validity of government regulations.” Slip op. at 15 (emphasis added). So long as an intervenor-appellant can demonstrate “a concrete injury related to the judgment,” that intervenor has standing to appeal, even in the absence of the government defendant. Id. at 16.

The Western Watersheds holding could have widespread implications, especially in cases challenging rules implemented by a prior administration. According to the Ninth Circuit, the Justice Department cannot pull the rug out from under private parties with an interest in defending the government’s regulations by declining to appeal an adverse decision. If a new administration wants to alter a rule that is being litigated, it should employ the Administrative Procedures Act’s notice-and-comment rulemaking processes.