The Federal Circuit Court of Appeals has denied the motions of the Natural Resources Defense Council (NRDC) and a fishermen’s organization to intervene in a lawsuit involving water releases from a California dam. Wolfsen Land & Cattle Co. v. United States, No. 2011-5113 (Fed. Cir. 9/21/12). Property owners claim that increased water flow resulting from operation of the Friant Dam on the San Joaquin River damaged their property, resulting in a taking without just compensation. The United States has operated the dam since its construction in 1942.

In 1996, to settle the NRDC and fishermen’s prior lawsuit, the government had agreed to increase water releases from the dam to restore and maintain Pacific salmon downstream, while continuing to support nearby landowners who depended on the water the dam collected. Congress ratified that settlement, and the increased water releases began in 2009. NRDC and the fishermen sought to intervene in the property owners’ suit to protect their interest in the settlement. The Court of Claims, where the takings case is pending, denied intervention, and the prospective intervenors immediately appealed.

Noting that it has seldom adjudicated issues relating to intervention as of right and had never articulated the standard to be applied in its review of these decisions, the Federal Circuit declined to choose a standard of review, concluding that it would affirm under either of two tests applied in other circuits: de novo or abuse of discretion. The Federal Circuit agreed with the lower court that the government would adequately represent NRDC and the fishermen’s interests. Because the government’s motivation is to defeat the property owners’ takings case, the court reasoned that the intervenors’ particular interest in assuring adequate releases, which they asserted could be affected by resolution of the property owners’ dispute, did not require an additional voice. The court also noted that the parties could seek intervention in the future if “a proposed settlement reveals some basis for arguing that the government may not adequately represent some [intervenors’] interest.”