UNITED STATES COURT OF APPEALS FOR THE NINTH...

No. 09-35200

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

__________________________________________________________________

The Wilderness Society and Prairie Falcon Audubon, Inc.,

Plaintiffs-Appellees, vs.

United States Forest Service; Jane P. Kollmeyer, Supervisor, Sawtooth National

Forest; Scott C. Nannenga, District Ranger, Minidoka Ranger District,

Defendants, and

Magic Valley Trail Machine Assoc., Idaho Recreation Council, and The

BlueRibbon Coalition, Inc.,

Intervenor-Applicants-Appellants. __________________________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO, CASE NO. CV08-363-E-EJL

__________________________________________________________________

ANSWERING BRIEF OF PLAINTIFFS-APPELLEES THE WILDERNESS SOCIETY AND PRAIRIE FALCON AUDUBON, INC.

_________________________________________________________________ Erik Schlenker-Goodrich Dave Bahr Megan Anderson O’Reill y Western Environmental Law Center Western Environmental Law Center 1216 Lincoln St. P.O. Box 1507 Eugene, OR 97401 Taos, New Mexico 87571 (p) 541.485.2471, ext. 108 (p) 575.751.0351 Scott W. Reed (Idaho Bar # 818) Counsel for Plaintiffs-Appellees P.O. Box A Coeur d’Alene, ID 83816 (p) 208.664.2161

Case: 09-35200 10/05/2009 Page: 1 of 30 DktEntry: 7084798

PLAINTIFFS-APPELLEES ANSWERING BRIEF i

CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. Rule 26.1, Plaintiffs-Appellees, New Mexico

The Wilderness Society and Prairie Falcon Audubon, Inc., hereby certify that there

are no parent corporations of, or any publicly-held corporations that own 10% or

more ownership interest in, Plaintiffs-Appellees nonprofit corporations.

s/ Megan Anderson O’Reilly Megan Anderson O’Reilly Counsel for Plaintiffs-Appellees


PLAINTIFFS-APPELLEES ANSWERING BRIEF ii

TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. THE DISTRICT COURT PROPERLY APPLIED THE “FEDERAL

DEFENDANT” RULE TO DENY MOTORIZED USERS’ MOTION TO INTERVENE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Because Motorized Users Did Not Ask The District Court To

Allow Them Intervention For Purposes Of Remedy Only, They May Not Now Raise It On Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. Even If This Court Decides To Consider The Issue Of Whether

Intervention For Purposes Of Remedy Only Is Proper, Intervention Should Not Be Granted Because Motorized Users Have Not Shown That They Have Any Protectable Interest That Will Be Threatened By The Requested Relief . . . . . . . . . . . . . . . . . . . . . . . . 6

II. THE MOTORIZED USERS HAVE NOT SHOWN THAT THE

DISTRICT COURT ABUSED ITS BROAD DISCRETION IN DENYING PERMISSIVE INTERVENTION . . . . . . . . . . . . . . . . . . . . . . 11

III. THE DISTRICT COURT PROPERLY APPLIED THE “FEDERAL

DEFENDANT” RULE, AS ARTICULATED BY THE NINTH CIRCUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18


PLAINTIFFS-APPELLEES ANSWERING BRIEF iii

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23


PLAINTIFFS-APPELLEES ANSWERING BRIEF iv

TABLE OF AUTHORITIES CASES Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924 (9th Cir. 2003) . . . . . . . . . . . . 17 Center for Biological Diversity v. U.S. Forest Service, 82 F.Supp.2d 1070 (D. Ariz. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Churchill County v. Babbitt, 150 F.3d 1072 (9th Cir. 1998) . . . . . . . . . . . . . . 10, 20 Cigna Property and Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . 4 Donnelly v. Glickman, 159 F.3d 405 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . 12 Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089 (9th Cir. 2003) . . . . . . . . . 17 Forest Conservation Council v. U.S. Forest Service, 66 F.3d 1489 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9, 10, 20 Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Husain v. Olympic Airways, 316 F.3d 829 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . 15 Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10, 12, 13, 19, 20 League of United Latin American Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 16 New York News, Inc. v. Kheel, 972 F.2d 482 (2d Cir. 1992) . . . . . . . . . . . . . . . . . 11 Portland Audubon Society v. Hodel, 866 F.2d 302 (9th Cir. 1989) . . . . . . . . . . . . 20 Sierra Club v. U.S. Envt’l Prot. Agency, 995 F.2d 1478 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 9, 11


PLAINTIFFS-APPELLEES ANSWERING BRIEF v

Slaven v. American Trading Transp. Co., Inc., 146 F.3d 1066 (9th Cir.1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6 Southwest Center for Biological Diversity v. Berg, 268 F.3d 810 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Spangler v. Pasadena City Bd. of Ed., 552 F.2d 1326 (9th Cir. 1977) . . . . 12, 13, 17 U.S. v. Belgarde, 300 F.3d 1177 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 18 U.S. v. Hayes, 231 F.3d 1132 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 20, 21 Whittaker Corp. v. Execuair Corp., 953 F.2d 510 (9th Cir. 1992) . . . . . . . . . . . 4, 11 STATUTES 7 U.S.C. § 6192(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 REGULATIONS 36 C.F.R. § 215.13(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 36 C.F.R. § 215.21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 FEDERAL REGISTER 70 Fed. Reg. 68264, 68265 (November 9, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 8 MISCELLANEOUS Fed. R. Civ. P. 24(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 Fed. R. Civ. P. 24(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12


PLAINTIFFS-APPELLEES ANSWERING BRIEF 1

JURISDICTIONAL STATEMENT Plaintiffs-Appellees agree with and adopt Intervenor-Applicants-Appellants

Statement of Jurisdiction, with one addition. This Court has jurisdiction over

appeals of permissive intervention only where if it finds that there was an abuse of

discretion. League of United Latin American Citizens v. Wilson, 131 F.3d 1297,

1307-08 (9th Cir. 1997). Thus, if this Court finds that there was not an abuse of

discretion, this Court must dismiss the appeal for want of jurisdiction. Id.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

Plaintiffs-Appellees adopt Intervenor-Applicants-Appellants Statement of

Issues Presented for Review.

STATEMENT OF THE CASE


the Case.

STATEMENT OF FACTS


Facts.

SUMMARY OF THE ARGUMENT

This case presents a unique procedural situation to the extent that Intervenor-

Applicants-Appellants Magic Valley Trail Machine Assoc., Idaho Recreation

Council, and the BlueRibbon Coalition, Inc. (“Motorized Users”) appear focused



on securing a route to en banc reversal of this Circuit’s none but a federal

defendant rule (“Federal Defendant rule”) which bars private parties from

intervening in NEPA compliance actions. This panel cannot overturn this well-

established Ninth Circuit rule. Accordingly, the only way this panel could grant

the Motorized Users the relief they seek would be for the Court to find that the

District Court abused its discretion in denying permissive intervention. However,

in this case, the record clearly supports the District Court’s decision regarding

permissive intervention, and the Motorized Users have failed to identify how the

District Court’s findings are an abuse of its discretion.

Motorized Users present three issues for this Court’s review. First, despite

the fact that Motorized Users did not request limited intervention at the District

Court, Motorized Users nonetheless ask this Court to consider whether the District

Court erred by failing to consider limited intervention. Because Motorized Users

did not move for limited intervention, the District Court did not err in failing to

consider such a request, and this Court need not, and indeed should not, address the

issue for the first time on appeal. Furthermore, even if this Court chose to address

the issue, Motorized Users have not shown that they have a significant, legally

protectable interest that would be affected by the outcome of this case, as required

to satisfy the threshold requirements for intervention as of right in even a limited

capacity.



Second, the District Court did not abuse its discretion when it decided, after

thoroughly addressing both the intervention motion as well as a motion for

reconsideration, to deny Motorized Users’ Motion to Intervene. The District Court

relied upon relevant factors to decide that that Motorized Users would not add

further clarity to the proceedings. The District Court’s decision was supported by

the record and thus should not be overturned on appeal.

Finally, although Plaintiffs-Appellees The Wilderness Society and Prairie

Falcon Audubon, Inc. (“Conservation Groups”) take no position regarding the

propriety of the Federal Defendant rule, the District Court properly applied the rule

and unless and until there is an en banc decision overturning the rule, this panel

must also follow the rule. “Circuit law . . . binds all courts within a particular

circuit, including the court of appeals itself. Thus, the first panel to consider an

issue sets the law not only for all the inferior courts in the circuit, but also future

panels of the court of appeals.” Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.

2005).

ARGUMENT

I. THE DISTRICT COURT PROPERLY APPLIED THE “FEDERAL DEFENDANT” RULE TO DENY MOTORIZED USERS’ MOTION TO INTERVENE.

A. Because Motorized Users Did Not Ask The District Court To

Allow Them Intervention For Purposes Of Remedy Only, They May Not Now Raise It On Appeal.



The District Court properly denied Motorized Users’ motion to intervene as

of right based on this Circuit’s Federal Defendant rule—a rule which dictates that

“private intervenors in [a] NEPA action may not intervene as of right pursuant to

Rule 24(a).” Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1108 (9th Cir.

2002). Despite this well established rule, Motorized Users attempt to circumvent

the District Court’s ruling by raising, for the first time, a completely new ground

for intervention—intervention as of right for the limited purpose of addressing

remedy. Indeed, Motorized Users go even further, arguing that the District Court

erred “by failing to even consider limited intervention.” Opening Brief, 28.

However, to the extent that this assertion may true, it is because Motorized Users

did not raise the issue.

This Circuit has held that “[i]t is well-established that an appellate court will

not consider issues that were not properly raised before the district court.” Slaven

v. American Trading Transp. Co., Inc., 146 F.3d 1066, 1069 (9th Cir.1998);

Crawford v. Lungren, 96 F.3d 380, 389 n. 6 (9th Cir. 1996). An issue is generally

deemed waived if it is not “raised sufficiently for the trial court to rule on it.”

Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992). “This

principle accords to the district court the opportunity to reconsider its rulings and

correct its errors.” Id. Thus, because the Motorized Users never requested limited

intervention, the District Court was not in a position to address the issue.



The record establishes that Motorized Users did not seek to intervene for

purposes of remedy only. Rather, in their motion to intervene before the District

Court, Motorized Users moved to intervene “as defendant-cross-claimants . . . with

full rights as a party.” Mtn. to Intervene, CR 15 at 2; ER 14 (emphasis added);1

Mtn. to Intervene, CR 15 at 2, ER 14. Motorized Users specifically requested that

intervention “should not be . . . limited” and that “Motorized Users should receive

full rights as a party.”2 Memo. In Support of Mtn. to Intervene, CR 15, Attach. 3 at

9-11; see also Reply to Resp. to Mtn. to Intervene, CR 18 at 5 (Motorized Users

assert that proceedings will be aided by “full participation” of diverse parties);

Mtn. for Reconsid., CR 28 at 12 (Motorized Users express concern about “ability

to attain party status in the initial stages” of litigation; no request for limited

intervention (emphasis added)).

Nowhere in the extensive briefing on this issue do Motorized Users request

limited intervention. Accordingly, the District Court could not have erred by not

considering intervention as of right in a limited capacity; the issue was not before 1 Conservation Groups’ citations to the record will note the title of the document and reference the District Court Clerk’s Record Number (or Docket Entry Number) by “CR xx, Attach. x (where applicable) at xx (page number).” Where documents are also included in Recreational Groups’ Excerpts of Record, citations to pages in that document will also be noted by “ER at xx.” 2 Although Motorized Users mention the possibility of limited intervention, Memo. in Support of Mtn. to Intervene, CR 15, Attach. 3, at 10; Reply to Resp. to Mtn. to Intervene, CR 18 at 8, as explained above, Motorized Users never request such an outcome.



it. This Court should not indulge Motorized Users’ attempt to raise this issue for

the first time on appeal.

B. Even If This Court Decides To Consider The Issue Of Whether Intervention For Purposes Of Remedy Only Is Proper, Intervention Should Not Be Granted Because Motorized Users Have Not Shown That They Have Any Protectable Interest That Will Be Threatened By The Requested Relief.

As discussed above, because Motorized Users did not request limited

intervention as of right at the District Court, this Court need not reach this issue.

Slaven, 146 F.3d at 1069. However, if this Court should decide that intervention as

of right may be permissible when limited to the remedy phase of the proceedings,

Motorized Users nevertheless have failed to show that intervention is appropriate

in this case even in a limited fashion.

To intervene as of right, even for the limited purpose of participating in the

remedy phase of an action, an intervenor-applicant must meet a four-prong test:

(1) the motion must be timely; (2) the applicant must claim a “significantly protectable” interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant's interest must be inadequately represented by the parties to the action.

Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1113 (9th

Cir. 2000). Although this Circuit has allowed intervention as of right for purposes

of addressing remedy only despite the Federal Defendant rule, such allowance has



been made only in cases where the intervenor-applicant has established a

significant legally protectable interest, and the injunction sought “will have direct,

immediate, and harmful effects upon a third party's legally protectable interests.”

Forest Conservation Council v. U.S. Forest Service, 66 F.3d 1489, 1494, 1497 (9th

Cir. 1995). Here, Motorized Users have not shown first, that they possess a

“significantly protectable interest,” or second, that an injunction will have “direct,

immediate, and harmful effects” upon such an interest.

First, Motorized Users do not satisfy the Ninth Circuit’s two-part test for a

“significantly protectable interest” sufficient to justify intervention as a matter of

right: the applicant-intervenor must identify an interest that is “protectable under

some law;” and the applicant-intervenor must show that “there is a relationship

between the legally protected interest and the claims at issue.” Sierra Club v. U.S.

Envt’l Prot. Agency, 995 F.2d 1478, 1484 (9th Cir. 1993); see also Forest

Conservation Council, 66 F.3d at 1494.

This case involves a localized management decision designating motorized

recreation routes on the Minidoka Ranger District of the Sawtooth National Forest.

Plaintiffs seek to protect the Sawtooth National Forest’s conservation values by

ensuring that the Forest Service complies with federal law and thereby designates a

responsible motorized route network, or Travel Plan. The Travel Management

Rule at the heart of this litigation provides a “national framework” implemented at



the “local level.” 70 Fed. Reg. 68264, 68265 (November 9, 2005). Motorized

Users therefore must demonstrate that they possess a legally protectable interest in

Plaintiffs’ efforts to ensure that the Forest Service complies with federal law before

designating a Travel Plan, and that there is some relationship between their interest

and Plaintiffs’ claims. See Sierra Club, 995 F.2d at 1484. Motorized Users have

completely failed to make this showing.

In their briefing, Motorized Users gloss over the need for a protectable

interest in these proceedings, stating only that “[p]roper resolution of the interest

prong largely resolves the other elements of the four prong test.” Opening Brief,

31. Whether that contention is true does not resolve the issue of whether

Motorized Users have a legally protectable interest related to the proceedings, a

subject which Motorized Users completely ignore. See id., 31-32.

In the District Court proceedings, Motorized Users similarly addressed their

interest only vaguely. Motorized Users concluded, without explanation, that “if

the travel plan is nullified, or if motorized use . . . is enjoined, the Motorized

Users’ ability to access the Minidoka Ranger District . . . via their chosen mode

will be severely impaired.” Memo. in Support of Mtn. to Intervene, CR 15,

Attach. 3 at 6. However, Motorized Users do not explain how this “interest” is

protected by law, such that it constitutes the legally protectable interest required for

intervention as of right. Motorized Users also asserted generally that resolution of



this case “could influence the manner in which other Forests conduct their travel

management duties.” Id. Again, however, Motorized Users failed to explain how

this possibility affects Motorized Users’ interests. With those unsubstantiated

reasons, the Motorized Users summarily concluded that they “demonstrated the

requisite interest to attain intervention as of right.” Id.

To make a showing sufficient to satisfy Fed. R. Civ. P. 24(a), however,

Motorized Users must do more than proffer conclusory statements about their

interest. Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th

Cir. 2001) (noting importance of “nonconclusory allegations” and supporting

evidence). In particular, Motorized Users must demonstrate that their interest is

one “protected under some law.” Sierra Club, 995 F.2d at 1484. Indeed,

Motorized Users fail to make even conclusory assertions on that point. Because

Motorized Users do not assert an interest in the first instance, they are unable to

show, and indeed do not show, that “there is a relationship between the legally

protected interest and the claims at issue.” Id.

Second, because Motorized Users have not shown any legally protectable

interest in the proceedings, it is not surprising that they have not been able to

establish that the injunctive relief requested by Conservation Groups will have the

“direct, immediate, and harmful effects” upon Motorized Users’ interest such that

intervention as of right at the remedy stage would be appropriate. Forest



Conservation Council, 66 F.3d at 1494. Furthermore, although Motorized Users

assert “that practical impairment is obvious,” Opening Brief, 31, because

Motorized Users have not identified a legally protectable interest, impairment of an

interest is anything but obvious.

Even assuming a legally protectable interest, Motorized Users make no

effort to explain how Conservation Groups’ efforts to ensure that the Forest

Service comply with the law before designating a Travel Plan will impair their

interest. Conservation Groups assert violations of the law committed by the Forest

Service, Complaint, CR 1 at 21-30; ER 208-217; thus, any injunctive relief by the

District Court would involve requiring the Forest Service to comply with the law

before designating a Travel Plan. Unless Motorized Users are asserting that they

have an interest in the Forest Service’s failure to comply with the law, it is difficult

to understand how such relief could impair any legally protectable interest. See

Kootenai, 313 F.3d at 1108; Churchill County v. Babbitt, 150 F.3d 1072, 1083, as

amended by 158 F.3d 491 (9th Cir. 1998) (“Appellant does not have a ‘significantly

protectable’ interest in federal government compliance or noncompliance with

NEPA.”); Forest Conservation Council, 66 F.3d at 1499, n.11 (“Appellants cannot

claim any interest that relates to the issue of the Forest Service’s liability under

NEPA and NFMA . . . .” (emphasis added)).



In sum, Motorized Users’ eleventh hour attempt to disguise the

shortcomings in their district court briefing as the District Court’s error cannot

stand. As discussed above, this Court will not consider arguments raised for the

first time on appeal. See, e.g., Whittaker, 953 F.2d at 515. Furthermore, even if

this Court decides to consider whether intervention as of right was appropriate at

the remedy stage, Motorized Users have not demonstrated that they have a legally

protectable interest in the litigation, or that the relief requested in the underlying

litigation would have “direct, immediate, and harmful effects” upon any alleged

interest. See Sierra Club, 995 F.2d at 1484. Therefore, Motorized Users do not

meet the threshold requirements to satisfy Fed. R. Civ. P. 24(a). Motorized Users’

argument that they should be granted intervention at the remedy stage of this

litigation therefore must fail.

II. THE MOTORIZED USERS HAVE NOT SHOWN THAT THE DISTRICT COURT ABUSED ITS BROAD DISCRETION IN DENYING PERMISSIVE INTERVENTION

Motorized Users next assert that the District Court erred by denying them

permissive intervention. A district court has broad discretion to grant or deny a

motion for permissive intervention. Fed. R. Civ. P. 24(b)(1). Indeed, such is the

appellate court’s recognition of a district court’s wide discretion in this regard that

one circuit court noted that “a denial of permissive intervention has virtually never

been reversed.” New York News, Inc. v. Kheel, 972 F.2d 482, 487 (2d Cir. 1992).



When considering whether to grant intervention permissively, Rule 24(b)

states that a court “may permit anyone to intervene who . . . has a claim or defense

that shares with the main action a common question of law or fact.” Fed. R. Civ.

P. 24(b)(1). “In exercising its discretion, the court must consider whether the

intervention will unduly delay or prejudice the adjudication of the original parties'

rights.” Fed. R. Civ. P. 24(b)(3); Kootenai, 313 F.3d at 1111 n. 10. However,

even where the “literal requirements of Rule 24(b)” are met, it is within district

court’s discretion to decide if intervenors can participate. Id. at 1110-11; Donnelly

v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998). The District Court is “then entitled

to consider other factors in making its discretionary decision on the issue of

permissive intervention.” Spangler v. Pasadena City Bd. of Ed., 552 F.2d 1326,

1329 (9th Cir. 1977). Among such relevant factors are:

the nature and extent of the intervenors' interest, their standing to raise relevant legal issues, the legal position they seek to advance, and its probable relation to the merits of the case. The court may also consider whether changes have occurred in the litigation so that intervention that was once denied should be reexamined, whether the intervenors' interests are adequately represented by other parties, whether intervention will prolong or unduly delay the litigation, and whether parties seeking intervention will significantly contribute to full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions presented.



Id. (internal citations omitted). Thus, although the District Court determined that

Motorized Users met the threshold requirements for permissive intervention,3 the

District Court, in an exercise of its discretion, considered other relevant factors to

decide that permissive intervention was not appropriate in this case.

First, the Court considered whether intervention by Motorized Users would

“significantly contribute to full development of the underlying factual issues . . . or

just and equitable adjudication of the legal issues.” Spangler, 552 F.2d at 1329.

On this point, the District Court found that “Motorized Users would not add any

further clarity or insight into the claims in this action,” Order Denying Mtn. to

Intervene, CR 23 at 7; ER at 8. Additionally, the Court determined that Motorized

Users’ participation was not necessary “since the duties required by the laws in

question here are imposed upon the Federal Defendants, the defense of this action

is for the Federal Defendants to undertake,” id., thus considering “the legal

position [intervenors] seek to advance, and its probable relation to the merits of the

case.” See Spangler, 552 F.2d at 1329. Finally, the Court considered “the nature

and extent of the intervenors’ interest.” See id. The District Court found that

3 The District Court found that Motorized Users had an interest in the outcome of the litigation, and that delay or prejudice was unlikely. Of note, finding an interest for purposes of permissive intervention pursuant to Rule 24(b) is distinct from finding a “significant protectable interest,” as required for intervention pursuant to Rule 24(a). Kootenai, 313 F.3d at 1108 (“unlike Rule 24(a), a “significant protectable interest” is not required by Rule 24(b) for intervention.”).



Motorized Users’ failure to participate in the administrative process and failure to

exhaust their administrative remedies weighed heavily against allowing them leave

to intervene at district court; if it allowed intervention, the Court found, “the

administrative process could largely be ignored by third-party defendants.”4 Order

Denying Mtn. to Intervene, CR 23 at 7; ER at 8. The District Court thus relied

upon a consideration of relevant factors to find that the Motorized Users should not

be permitted to intervene.

Rather than attempting to refute the District Court’s legal analysis of the

Motorized Users’ Motion to Intervene, Motorized Users instead focus primarily on

one part of the District Court’s ruling—that Motorized Users’ failed to participate

during the administrative proceedings. The Motorized then simply repeat an

essentially irrelevant complaint that they “participated extensively in the

[administrative] process.” Opening Brief, 33. The Record, however, does not

4 Tellingly, in their original Motion to Intervene, Motorized Users’ also attempted to assert a cross claim, apparently to avoid application of the Federal Defendant rule. Memo in Support of Mtn. to Intervene, CR 15, Attach. 3 at 6. However, because Motorized Users did not exhaust their administrative remedies, in particular the requirement that they file an administrative appeal, they were not eligible to bring a lawsuit on their own behalf. 7 U.S.C. § 6192(e); 36 C.F.R. § 215.21; see also Order Denying Mtn. for Reconsid., CR 49 at 6. Motorized Users thus attempted to intervene in litigation which they would not have been able to bring themselves, so as to assert claims that they had not properly preserved during the administrative proceedings.



support Motorized Users’ claims5 and the District Court therefore denied their

motion to intervene, not once, but twice. Order Denying Mtn. to Intervene, CR 23

at 7-8; ER at 8-9; Order Denying Mtn. for Reconsid., CR 49 at 8-9; Husain v.

Olympic Airways, 316 F.3d 829, 835 (9th Cir. 2002), aff’d, 540 U.S. 644 (2004) (a

factual finding by the district court may only be set aside upon a finding of clear

error; standard also applies to the district court’s application of law to facts where

5 As explained by Conservation Groups and the District Court below, and contrary to Motorized Users’ assertions, Motorized Users themselves did not participate in any meaningful way in the administrative process underlying this litigation. Motorized Users did not submit comments, other than four pages of comments submitted by Magic Valley Trail Machine Association, during the Forest Service’s formal 30-day notice and comment period provided for the Proposed Action between October 4, 2006 and November 4, 2006. Motorized Users also failed to submit comments during the Forest Service’s 29-day “courtesy review” period between November 2, 2007 and November 30, 2007. Most importantly, Motorized Users did not submit any administrative appeals. Order Denying Mtn. for Reconsid., CR 49 at 6-7. Motorized Users nevertheless attempt to use the participation of one of their members, Mel Quayle, as a proxy for their own participation. Mr. Quayle, however, participated in his individual capacity in the proceedings, and never represented that he was acting on behalf of Motorized Users. Id. The Forest Service has rejected the “stealth applicant” process that Motorized Users again attempt to assert, in determining that only “individuals and organizations who submit substantive written or oral comments during the 30-day comment period for an environmental assessment . . . may file an appeal.” 36 C.F.R. § 215.13(a). Forest Service requirements thus specifically preclude Motorized Users’ attempts to use Mr. Quayle as a surrogate for their own lack of participation. Motorized Users attempts to point to other comments submitted likewise do not show that Motorized Users themselves participated in the proceedings. Motorized Users’ thus fail to contradict the District Court’s determination that allowing permissive intervention would allow latecomers an undeserved “key to the courthouse.” Order Denying Mtn. for Reconsid., CR 49 at 7.



it requires an “essentially factual” review). Furthermore, Motorized Users

assertions do little to show an abuse of discretion on the part of the District Court.

As discussed above, Motorized Users’ failure to exhaust was only one part of the

District Court’s denial of intervention. See Order Denying Mtn. to Intervene, CR

23 at 7; ER at 8.

Motorized Users also claim that the District Court erred in finding that “the

Motorized Users would not add any further clarity or insight into the claims in this

action.” However, Motorized Users again fail to show that the District Court acted

outside of the bounds of its broad discretion, reiterating instead their argument for

intervention for purposes of remedy only. Opening Brief, 38-39. As discussed

above, supra at section I(A), Motorized Users never requested intervention for

purposes of remedy only at the District Court. Thus, it can hardly be argued now

that the District Court abused its discretion by unilaterally failing to grant such

limited intervention.

In addition, “the fact that the district court has substantively-and

substantially-engaged the issues in [a] case weighs heavily against allowing

intervention.” League of United Latin American Citizens, 131 F3d at 1303.

Motorized Users did not appeal the District Court’s denial of a stay of the

proceedings, and thus did not seek to preserve the status quo before this Court. As

a result, the parties in the underlying litigation have completed summary judgment



briefing on the merits, and a decision could be issued any day. See CR 25, 26, 29-

31, 35, 43, 44, 50-52. Motorized Users have thus created a scenario where, were

this Court to issue a judgment in favor of Motorized Users, the proceedings below

would have to be reopened, and relitigated. Motorized Users’ allowance for such a

situation to occur further illustrates their lack of interest in the proceedings below

as compared to their interest in litigating the Federal Defendant rule.

The District Court exercised its discretion in considering Motorized Users’

Motion to Intervene, including a consideration of the “nature and extent of the

intervenors' interest,” “the legal position they seek to advance, and its probable

relation to the merits of the case,” and whether the Motorized Users would

“significantly contribute to full development of the underlying factual issues in the

suit and to the just and equitable adjudication of the legal questions presented.”

Spangler, 552 F.2d at 1329; Order Denying Mtn. to Intervene, CR 23 at 7; ER at 8.

In so doing, the District Court determined that Motorized Users should not be

allowed permissive intervention. Because this determination was supported by a

careful analysis of the issues, this Court should not overturn the District Court’s

exercise of discretion.6

6 To the extent that this Court may not agree with the District Court’s analysis, the District Court’s decision still may be affirmed on any ground supported by the record, even if not relied upon by the District Court. Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097 (9th Cir. 2003); see also Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003) (affirming on different ground



III. THE DISTRICT COURT PROPERLY APPLIED THE “FEDERAL DEFENDANT” RULE, AS ARTICULATED BY THE NINTH CIRCUIT

As noted above, Motorized Users appear to be tailoring their entire appeal to

this Court as a means by which to seek en banc review of the Federal Defendant

Rule. Specifically, in contrast to their argument that the Federal Defendant rule

allows intervention as of right for purposes of remedy only, see supra section I, in

their third issue presented for review, Motorized Users argue that the Federal

Defendant rule “should no longer be good law in this Circuit.” Opening Brief, 40.

Conservation Groups take no position on the propriety of the Federal

Defendant rule. However, unless and until there is an en banc decision of this

Circuit overturning this Circuit’s prior cases establishing the Federal Defendant

rule, this panel is bound to follow its precedent. See, e.g., U.S. v. Hayes, 231 F.3d

1132, 1139-40 (9th Cir. 2000) (“It is well established that one panel cannot reverse

a decision by a previous panel.” “Only the court sitting en banc can reverse the

decision of a panel of this circuit.”); U.S. v. Belgarde, 300 F.3d 1177, 1181 (9th Cir.

2002) (“a panel not sitting en banc has no authority to overturn Ninth Circuit

precedent”). Because this panel cannot independently reconsider the merits of the

than that relied upon by district court). Accordingly, the decision may be affirmed, “even if the district court relied on the wrong grounds or wrong reasoning.” Cigna Property and Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412, 418 (9th Cir. 1998) (citation omitted).



Federal Defendant Rule, review is limited to a determination of whether the district

court properly applied the Federal Defendant rule in the proceedings below.

Motorized Users do not specifically challenge the District Court’s

application of the Federal Defendant rule and indeed conceded the District Court

was required to follow the rule. Memo. in Support of Mtn. to Intervene, CR 15,

Attach. 3 at 10. However, because application of the rule is the only issue that

Motorized Users could properly bring before this panel, Conservation Groups

address briefly the District Court’s application of the Federal Defendant rule to

deny Motorized Users’ Motion to Intervene.

As discussed above, the Federal Defendant rule establishes that private

parties cannot intervene as a matter of right in NEPA compliance actions because

they cannot establish a “significantly protectable interest” in the litigation.

Kootenai, 313 F.3d at 1108. Despite this rule, Motorized Users sought to intervene

in a NEPA compliance case with full rights as a party. Furthermore, in an apparent

attempt to circumvent the rule, Motorized Users also included a cross claim in their

motion, despite their failure to exhaust their administrative remedies below.

Memo. in Support of Mtn to Intervene, CR 15, Attach. 3 at 6, 11; supra at 14, fnt.

4.

The premise behind the Federal Defendant rule is that because NEPA

imposes duties upon federal agencies, not private parties, only federal agencies can



violate NEPA, and thus federal agencies are the only appropriate defendants in a

NEPA suit. Consequently, “private intervenors may not intervene as of right

pursuant to Rule 24(a).” Kootenai, 313 F.3d at 1108; Wetlands, 222 F.3d at 1114

(upholding district court’s denial of a permittee’s application to intervene as of

right in a NEPA case); Churchhill County, 150 F.3d at 1082-1083 (upholding

district court’s denial of a public utility’s application to intervene as of right in a

NEPA case); Portland Audubon Soc’y v. Hodel, 866 F.2d 302, 309 (9th Cir. 1989)

(timber industry denied intervention as of right in [a] NEPA case challenging

logging).7

None of Conservation Groups’ claims targets private parties, let alone the

Motorized Users.8 Accordingly, the District Court was correct in holding that the

7 Although it is not at issue in this appeal, the premise behind the Federal Defendant rule applies equally to other claims at issue in this case, Clean Water Act (“CWA”), National Forest Management Act (“NFMA”), and Executive Order 11644 claims, all of which similarly allege violations of duties imposed on federal agencies, not on private parties. Kootenai, 313 F.3d at 1108; see Complaint, CR 1 at 27-30; ER 214-217(detailing Plaintiffs’ NFMA, CWA, and Executive Order 11644 claims); Forest Conservation Council, 66 F.3d at 1499 n.11 (NFMA); see also Center for Biological Diversity v. U.S. Forest Service, 82 F.Supp.2d 1070, 1073-74 (D. Ariz. 2000) (denying intervention as of right in the merits phase of an Endangered Species Act claim, applying “none but a federal defendant” rule). 8 While the CWA can impose duties on private parties, the CWA claim presented in this case is based on 33 U.S.C. § 1323(a) (entitled “Federal Facilities Pollution Control”), a statutory provision which imposes duties only on federal agencies, not private parties.



Federal Defendant rule applies to Conservation Groups’ claims. Wetlands Action

Network, 222 F.3d at 1114.

This case thus presents a textbook application of the Federal Defendant

Rule. Motorized Users sought to intervene as of right in a NEPA compliance

action and the District Court followed the Federal Defendant Rule to exclude them.

Although Motorized Users attempt to set up a case for en banc review, a panel of

this Court may not overturn Circuit precedent. As such, this panel must apply the

Federal Defendant rule and accordingly should affirm the District Court’s ruling.

CONCLUSION

For the foregoing reasons, the District Court’s decision denying Motorized

Users’ Motion to Intervene should be affirmed.

Respectfully submitted this 5th day of October, 2009 /s Megan Anderson O’Reilly Megan Anderson O’Reilly (NM Bar # 126305) Erik Schlenker-Goodrich (NM Bar #17875) Western Environmental Law Center P.O. Box 1507 Taos, New Mexico 87571 (p) 575.751.0351 (f) 575.751.1775 [email protected] [email protected] Dave Bahr (Oregon Bar # 90199) Western Environmental Law Center



1216 Lincoln St. Eugene, OR 97401 (p) 541.485.2471, ext. 108 (f) 541.485.2457 [email protected] Scott W. Reed (Idaho Bar # 818) P.O. Box A Coeur d’Alene, ID 83816 (p) 208.664.2161 (f) 208.765.5117 [email protected] Counsel for Plaintiffs-Appellees



CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32 (a)(7)(C) and Ninth Circuit Rule 32-1, the

above answering brief is proportionately spaced, has a typeface of 14 points or

more and contains 5,178 words.

Dated: October 5, 2009.

/s Megan Anderson O’Reilly Megan Anderson O’Reilly Counsel for Plaintiffs-Appellees

CERTIFICATE OF SERVICE

I hereby certify that on October 5, 2009, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by

the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered

CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage

prepaid, or have dispatched it to a third party commercial carrier for delivery

within 3 calendar days, to the following non-CM/ECF participants:

Jason A. Hill DOJ - U.S. DEPARTMENT OF JUSTICE Environment & Natural Resources Division



P.O. Box 663 Washington, DC 20044-0663

s/ Megan Anderson O’Reilly Megan Anderson O’Reilly


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