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Southwest Center for Biological Diversity v. Berg



The Ninth Circuit ruled on a motion to intervene under Rule 24 of the Federal Rules of Civil Procedure. The applicants to intervene included a construction company and four national and local building trade associations (Applicants). They wished to join a suit filed by environmental groups (Plaintiffs) regarding a comprehensive land management plan developed by the city of San Diego in cooperation with the Department of the Interior and other federal agencies. Plaintiffs challenged the formation, approval, and implementation of the plan under the Endangered Species Act (ESA).[1] Applicants appealed the district court’s denial of their motion to intervene, arguing that they qualified as intervenors under Rule 24 because they were third-party beneficiaries to the land management plan.

The Ninth Circuit applied a four-part test under Rule 24(a), as set out in Northwest Forest Resource Council v. Glickman (NFRC).[2] Timeliness, the first requirement of the test, was easily met. Under the second requirement, an applicant must have a significantly protectable interest relating to the property or transaction that is the subject of the action. The court adopted a standard found in other circuits that “[c]ourts are to take all well-pleaded, nonconclusory allegations in the motion to intervene . . . and declarations supporting the motion as true absent sham, frivolity, or other objections.”[3] Based on Applicants’ submissions, the court concluded that because projects being developed by one of the Applicants were “in the pipeline for design and mitigation assurances and approval” under the land management plan at issue, this status created sufficient legally protectable interests to support intervention.[4] It was sufficient that these projects were included in an “approved negotiated project” list, even though the developer had not technically attained third-party beneficiary status under the relevant land management plan.[5]

The third requirement of the NFRC test is that the applicant’s interest must be substantially affected by the disposition of the action. The court concluded that invalidation or partial revocation of the land management plan as a result of the suit would impair or impede the protectable interest that Applicants had demonstrated. Under the final requirement of the NFRC test, the applicant’s interest must not be adequately represented by the existing parties in the lawsuit. A minimal showing by the prospective intervenor is sufficient, and the prospective intervenor need not anticipate trial strategy. Because the City stated that it would not represent Applicants’ interests, and because federal agencies cannot be expected to protect private interests, the court concluded that adequate representation was sufficiently in doubt. With all requirements of the NFRC test satisfied, the Ninth Circuit reversed the district court and held that Applicants were entitled to intervene as a matter of right.

[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000).

[2] 82 F.3d 825, 836 (9th Cir. 1996).

[3] Southwest Ctr. for Biological Diversity, 268 F.3d 810, 820 (9th Cir. 2001).

[4] Id. at 821.

[5] Id. at 820.

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