The Wilderness Society v United States Forest Service, No. 09-35200 (9th Cir. Jan. 14, 2011).

Participation in National Environmental Policy Act (“NEPA”) litigation by interested businesses, trade associations, non-profit organizations and conservation groups, and state and local governments recently became permissible in the Ninth Circuit. In a unanimous en banc decision filed on January 14, 2011, the Ninth Circuit abandoned the so-called “federal defendant” rule, which categorically prohibited private parties and state and local governments from intervening of right as defendants in NEPA actions. After the decision in Wilderness Society v. United States Forest Service, those parties are no longer precluded from doing so, so long as they meet the regular standards for intervention of right.

History of the Case

Two conservation groups, the Wilderness Society and Prairie Falcon Audubon, Inc. filed suit alleging the United States Forest Service violated NEPA when it adopted a travel plan allowing use of roads and trails by motorized vehicles in the Minidoka area of the Sawtooth National Forest in Idaho. Three recreational groups sought to intervene as defendants, opposing the conservation groups’ allegation that the travel plan allowed too much vehicular use. The district court, faithfully applying the Ninth Circuit’s “federal defendant” rule, denied the recreational groups’ motion to intervene as of right. The recreation groups appealed the decision to the Ninth Circuit, and requested that the Court consider modifying or eliminating the “federal defendant” rule. A three-judge panel ordered the parties to brief whether the Court should review en banc the possibility of abandoning the “federal defendant” rule. The Ninth Circuit granted en banc review, and reversed the district court’s ruling, agreeing with the recreation groups and thirty-seven amici that the categorical ban on intervention of right in NEPA cases should be lifted.

Intervention of Right in NEPA Cases

Federal Rule of Civil Procedure 24(a)(2) permits intervention of right by anyone who “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” In applying Rule 24(a)(2), the court requires a “significantly protectable” interest on the part of the party seeking to intervene. In the Ninth Circuit, the “federal defendant” rule barred interested parties from intervention of right as defendants on the merits of NEPA cases. See Churchill County v. Babbitt, 150 F.3d 1072, 1082, as amended by 158 F.3d 491 (9th Cir. 1998). The reasoning went that such parties could not have a “significantly protectable” interest in the litigation because NEPA is procedural in nature and imposes obligations only on the federal government.

In Wilderness Society v. United States Forest Service, Ninth Circuit abandoned the “federal defendant” rule, reasoning that it: (1) contravenes Federal Rule of Civil Procedure 24(a)(2); (2) conflicts with the standards applied in other intervention of right cases, including those involving other environmental statutes; and (3) conflicts with all but one of the other circuits that have addressed intervention of right by private parties in NEPA cases. The Ninth Circuit held that the same standards that apply in all other intervention of right cases apply to intervenors in NEPA cases, i.e., a putative intervenor must show a “significantly protectable” interest by demonstrating an interest “protectable under some law” and a “relationship between the legally protected interest and the claims at issue.” The Court reasoned: “[A] technical prohibition on intervention of right on the merits of all NEPA cases . . . eschews practical and equitable considerations and ignores our traditional liberal policy in favor of intervention. It also fails to recognize the very real possibility that private parties seeking to intervene in NEPA cases may, in certain circumstances, demonstrate an interest ‘protectable under some law’ and a relationship between that interest and the claims at issue.”

Increased Participation from Interested Parties

The Ninth Circuit, encompassing California, Nevada, Arizona, Hawaii, Oregon, Washington, Alaska, Idaho, and Montana, sees NEPA cases frequently with its vast geographic area, abundant federally managed natural resources, and large population. While district courts in the Ninth Circuit did not consistently enforce the “federal defendant” rule, the court’s decision in Wilderness Society removes a major obstacle to participation by private parties in NEPA litigation. Litigants can expect to see an increase in the number of parties to their NEPA lawsuits as a result.