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United States v. Carpenter (9th Cir. 2009)


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Two environmental groups sought to intervene in an action between the federal government and a Nevada county concerning the restoration of a road on Forest Service land.[1] The Ninth Circuit had previously ordered the U.S. District Court for the District of Nevada to grant the groups’ motion to intervene to allow their participation in settlement review proceedings,[2] but the district court denied participation in the Quiet Title Act[3] portion of the case. The Ninth Circuit reversed and remanded, holding that the scope of its earlier mandate was not limited and that the groups, as intervenors, were entitled to full participation in the action because they have an interest in the use and enjoyment of the land. The Ninth Circuit also reversed the district court’s dismissal of intervenor groups’ cross-claims that challenged the legal authority of the U.S. Attorney General to enter into a settlement agreement with the county, holding that such a decision is subject to review under the Administrative Procedure Act (APA).[4] The district court’s approval of the settlement agreement was vacated, pursuant to the Ninth Circuit’s mandate that the intervenors be allowed to participate fully.

The United States filed suit against residents of Elko County, Nevada, in 1999, alleging common law trespass and unlawful take of bull trout in violation of the Endangered Species Act.[5] Elko County residents known as the “Shovel Brigade” had been using self-help measures to restore a road that provided access to the nearby Jarbidge Wilderness Area. The federal government was concerned the restoration efforts would increase traffic into the wilderness area and negatively impact the bull trout population in a river adjacent to the roadway. Elko County, which was added as a defendant, filed a counterclaim under the Quiet Title Act, alleging that title to any roadway easement should vest in the county, not in the federal government. After the district court ordered the parties to mediate, they reached a tentative settlement agreement.[6]

After the parties’ proposed settlement became public, the environmental groups sought to intervene, but the district court denied their motion as untimely. The Ninth Circuit reversed the district court’s denial of intervention and remanded the case to the district court, ordering the court to grant the motion to intervene.[7] On remand, the groups renewed their motion to intervene and sought to file cross-claims against the United States pursuant to the APA, alleging that the settlement agreement violated the National Environmental Policy Act (NEPA),[8] the Federal Land Policy and Management Act (FLPMA),[9] and Forest Service regulations.[10] The district court denied intervention in the Quiet Title Act claim and dismissed the cross-claims on jurisdictional grounds, holding that the groups had no property interest in the disputed right-of-way for the road and thus had no standing. The district court held hearings on the merits of the settlement but did not permit the intervenors to present evidence or participate as parties. Once the settlement agreement was approved, the environmental groups appealed.

The Ninth Circuit first addressed the scope of its prior decision ordering intervention. The court reiterated that its previous order encompassed the entire case, including the Quiet Title Act action, and that the intervenors were not required to assert a property interest in the easement to effectuate their inclusion. The court explained that its rationale was in accord with the only other circuit case involving a Quiet Title Act claim. In San Juan County v. United States,[11] the Tenth Circuit had held a conservation group did not need to assert a property interest in a road to be granted intervention in a quiet title action.[12] The group’s interest in the environmental impact of vehicular traffic on the road satisfied the condition of Federal Rule of Civil Procedure 24(a)(2) that an intervenor claim “an interest relating to the property or transaction which is the subject of the action.”[13]

In this case, the intervenors claimed an interest in preserving the wilderness area for the use and enjoyment of their members. This interest, the court held, was sufficient to allow intervention and to satisfy requirements of standing. The Ninth Circuit vacated the approval of the settlement agreement, noting that the district court should consider the intervenors’ arguments before taking further action. Though the intervenors were entitled to present evidence and have their objections heard during settlement hearings, the Ninth Circuit made clear that the intervenors’ consent to the agreement would not be required. The court explained that “intervenors whose claims are not the subject of a settlement cannot veto that settlement.”[14]

The Ninth Circuit next addressed whether the district court had jurisdiction to hear the intervenors’ cross-claims challenging the Attorney General’s legal authority to enter into the settlement agreement. First, the Ninth Circuit established that decisions of the Attorney General are considered “agency actions” and are thus reviewable under the APA.[15] Second, and perhaps more notably, the Ninth Circuit established actions committed to agency discretion are reviewable when a claim alleges abuse of legal authority.

The United States argued that the “committed to agency discretion” exception of the APA precluded review of the Attorney General’s decision, but the court rejected this contention. The Ninth Circuit held that “a decision that is discretionary is not unreviewable in all circumstances,” finding guidance for its holding in two prior Ninth Circuit cases.[16] These earlier cases established that where an action is committed to agency discretion, a court may still review “allegations that an agency exceeded its legal authority, acted unconstitutionally, or failed to follow its own regulations.”[17]

In this case, the intervenors alleged the federal government granted Elko County a property interest in the easement without complying with the procedural mechanisms of FLPMA-an abuse of legal authority rather than an abuse of discretion. This distinction is important, the Ninth Circuit held, because it allows the cross-claims to move forward. The court aligned its reasoning with a Fourth Circuit case in which the Attorney General’s decision to settle a contract dispute was held to be reviewable.[18] In Executive Business Media v. U.S. Department of Defense, the claim alleged a settlement did not comply with competitive bidding procedures.[19] The Fourth Circuit reasoned that the Attorney General’s plenary power over litigation to which the federal government is a party does not include “license to agree to settlement terms that violate the civil laws governing the agency.”[20] Adopting the reasoning of the Fourth Circuit, the Ninth Circuit reversed the dismissal of the cross claims and remanded the case for consideration on the merits.[21]

In conclusion, the Ninth Circuit vacated the approval of the settlement agreement and the district court’s order denying the motion to intervene, reversed the dismissal of the cross-claims, and remanded the case for further proceedings.

[1] The intervenors were The Wilderness Society and Great Old Broads for Wilderness.

[2] United States v. Carpenter (Carpenter I), 298 F.3d 1122 (9th Cir. 2002).

[3] 28 U.S.C. § 2409a (2006).

[4] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

[5] Endangered Species Act of 1973, 16 U.S.C. § 1538(a)(1)(G) (2006).

[6] Under the tentative settlement agreement, the federal government agreed not to contest that Elko County had a right-of-way to the road, but did not waive its authority to manage federal lands and natural resources pursuant to federal environmental laws. The residents who sought to restore the road agreed to comply with federal environmental laws and to obtain prior approval from the Forest Service before proceeding with any work on the road. United States v. Carpenter (Carpenter II), 526 F.3d 1237, 1239 (9th Cir. 2008).

[7] Carpenter I, 298 F.3d at 1125-26.

[8] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2006).

[9] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1785 (2006).

[10] See generally 36 C.F.R. pt. 251 (2000).

[11] 503 F.3d 1163 (10th Cir. 2007).

[12] Id. at 1199-1200.

[13] Id. at 1201.

[14] Carpenter II, 526 F.3d at 1240(citing Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 529 (1986)).

[15] Administrative Procedure Act, 5 U.S.C. § 702.To establish this point, the Ninth Circuit drew support from decisions from the United States Supreme Court and other circuits. See Morris v. Gressette, 432 U.S. 491, 500-01 (1977); Banzhaf v. Smith, 737 F.2d 1167, 1168 (D.C. Cir. 1984); Proetti v. Levi, 530 F.2d 836, 838 (9th Cir. 1976).

[16] Carpenter II, 526 F.3d at 1241.

[17] Guadamuz v. Bowen, 859 F.2d 762, 767 (9th Cir. 1988); see also Ness Inv. Corp. v. U.S. Dep’t of Agric., 512 F.2d 706, 714 (9th Cir. 1975).

[18] Executive Bus. Media, Inc. v. U.S. Dep’t of Def., 3 F.3d 759, 761 (4th Cir. 1993).

[19] Id. at 761.

[20] Id. at 762.

[21] The Ninth Circuit declined to consider the merits of intervenors’ cross claims, explaining it would be more appropriate to remand to district court for full legal and factual development of the record.


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