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Maine v. Director, U.S. Fish & Wildlife Serv.

Citation: 32 ELR 20030
No. No. 01-1770, 262 F.3d 13/(1st Cir., 08/22/2001)

The court upholds a district court decision denying environmental groups the right to intervene in a suit concerning the listing of the Atlantic Salmon as an endangered species. In 1999, the groups sued the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS), challenging their decision not to list the Atlantic Salmon as a threatened species. While that litigation was underway the NMFS and the FWS proposed to list the salmon as an endangered species. The groups and the NMFS and the FWS entered a court-ordered stipulation agreeing to stay the litigation until the NMFS and the FWS made a final decision on the listing of the salmon. Ultimately, the NMFS and the FWS decided to list the Atlantic Salmon as an endangered species, which triggered the current lawsuit brought by the state and various business people in the state. The groups now contend that they should be allowed intervention of right in the current suit because the NMFS and the FWS, formerly the groups' antagonists, cannot be trusted to defend fully the endangered species designation because they will not argue, as the groups would, that they should have protected the salmon earlier. The court first holds, however, that the district court was correct in determining that the groups should not be allowed intervention as of right. The argument they wish to advance is better thought of as a supplement to the NMFS and the FWS' argument, rather than a separate argument. Whether the NMFS and the FWS should have designated the salmon earlier may be a building block in an argument, but it is hardly a necessary one to the defense. Additionally, there is no evidence that the case requires presentation of evidence only available through the groups' participation as intervenors. Further, the former adversarial relationship of the groups and the NMFS and the FWS may raise questions about adequacy, but does not answer the questions. The NMFS and the FWS designated the salmon as endangered on their own accord, not as the result of litigation, and the NMFS and the FWS' endangered species designation goes beyond what the groups sought in earlier litigation. Moreover, in the prior litigation, the groups won a stipulation that the NMFS and the FWS would decide what to do on listing the salmon by a particular date. That bargain was kept, the decision was made, and there is no risk to that completed bargain in this litigation.

The full text of this decision is available from ELR (21 pp., ELR Order No. L-395).

Counsel for Appellees
Catherine R. Connors
Pierce Atwood
One Monument Sq., Portland ME 04101
(207) 773-6411

Counsel for Appellants
Howard M. Crystal
Meyer & Glizenstein
1601 Connecticut Ave. NW, Washington DC 20009
(202) 588-5206