LITIGATION:

Ruling opens door for intervenors in Western NEPA disputes

A federal appeals court today abandoned a legal rule that made it difficult for private interests to intervene in environmental disputes in the Western states.

Under the San Francisco-based 9th U.S. Circuit Court of Appeals' "federal defendant rule," anyone other than the federal government was barred in most instances from defending claims under the National Environmental Policy Act (NEPA), the main legal mechanism for challenging government actions that affect the environment.

But today's opinion in Wilderness Society v. U.S. Forest Service following a hearing by an en banc panel of 11 judges, which was required for the court to overturn one of its precedents, means that private parties can now intervene on the defendant's side and, in some cases, argue for particular points that the government would not push.

Industry and recreational groups had advocated for the change, while environmentalists had largely stayed on the sidelines.

The rule, unique to the 9th Circuit, was frustrating for business and recreational interests in particular, which thought their voices were not always being heard in cases between environmental groups and the government.

Environmental groups had largely stayed neutral on the question of whether the rule should be kept and have downplayed the importance of the case. That is because, while the rule might help them in some cases, in others, it does not.

The ruling will have considerable consequences in the environmental context because the 9th Circuit's jurisdiction includes the nine Western states, and its caseload therefore includes a substantial number of environmental cases in which the federal government is the defendant.

The rationale behind the rule was that parties seeking to intervene did not have a "significantly protectable" interest because NEPA is a law that only binds the federal government.

Writing for a unanimous court, Judge Barry Silverman said the rule "ignores our traditionally liberal policy in favor of intervention" and "fails to recognize" the fact that private parties can show a protectable right," he added.

The dispute that led to the ruling focused on efforts by the Magic Valley Trail Machine Association to intervene when the Wilderness Society and Prairie Falcon Audubon Inc. sought to challenge a Forest Service decision concerning motorized travel in the Sawtooth National Forest in Idaho.

The environmental groups complained that the Forest Service wanted to allow too much access for motorized vehicles and asked the courts to restrict that access.

Recreational groups countered that the Forest Service had already restricted access too much. But U.S. District Judge Edward Lodge of the District of Idaho ruled that the recreational groups could not get involved in the case.

The 9th Circuit today ordered Lodge to reconsider the recreational groups' motion to intervene in light of its ruling.

Reactions

The recreation groups' attorney, Paul Turcke, a partner at the Boise-based Moore Smith Buxton & Turcke law firm, welcomed the decision, saying that by allowing more interests to have a voice, judges will be able to reach better conclusions.

"It's a great result which, ironically, benefits all nonfederal parties, including preservation interests," Turcke said.

The impact of the ruling will vary from district to district, he added, depending on how strict judges had been in the past.

"This doesn't open any terrible floodgate," Turcke said.

Richard Frank, director of the California Environmental Law and Policy Center at the University of California, Davis, said the ruling should be embraced by all parties involved in environmental litigation.

"I consider this a most welcome development in 9th Circuit jurisprudence, both from the standpoint of federal civil procedure rules and in providing a voice in the judicial process for a wide array of interest groups and stakeholders," he said.

Environmentalists, meanwhile, also proclaimed themselves satisfied with the outcome.

The rule "has always been a double-edged sword," said Erik Schlenker-Goodrich, a lawyer at the Western Environmental Law Center, which represents the environmental groups in the case.

"We are not sad," he said, "to see the rule abandoned."

Click here to read the opinion.

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