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Environmental Defense Fund v. Higginson

Citation: 9 ELR 20729
No. No. 79-1028, 631 F.2d 738/13 ERC 1731/(D.C. Cir., 08/30/1979) Aff'd

In a suit raising a challenge under the National Environmental Policy Act to the salinity control program for the Colorado River Basin, the court of appeals affirms, though on separate grounds, the lower court's denial of a motion to intervene by several municipal water districts, 9 ELR 20073. The lower court found that because the states in which the water districts were located had already been admitted to the case, the districts were faced with and had not satisfied a difficult burden of demonstrating that their interests were substantially distinct from the state parties.Noting that the ruling below was based largely on New Jersey v. New York, 345 U.S. 369 (1953), which arose under the Supreme Court's original jurisdiction, the court of appeals rules that the district courts have less interest in excluding non-state entities than does the Supreme Court. Nevertheless, the doctrine of parens patriae does impose a somewhat greater burden upon a prospective intervenor when its state is already a party to the litigation. The court concludes that while the standard employed [9 ELR 20730] by the district court was too harsh, the water districts nevertheless failed to make the showing of an independent interest required under the parens patriae doctrine, and thus were properly excluded. In dissent, Judge MacKinnon expressed his view that the interests of the states and the water districts were sufficiently distinct that intervention should have been permitted.

The full text of this opinion is available from ELR (8 pp. $1.00, ELR Order No. C-1196).

Counsel for Appellant Water Districts
Robert L. McCarty, Kenneth Balcom
Delaney & Balcom
P.O. Drawer 790, Glenwood Springs CO 81601
(303) 945-6546

Counsel for Appellee EDF
George W. Pring, Paula C. Phillips, William A. Butler
Environmental Defense Fund, Inc.
1657 Pennsylvania St., Denver CO 80203
(303) 831-7559

Counsel for Federal Appellees
Robert L. Klarquist; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Per curiam by Tamm and Leventhal, JJ.; dissent by MacKinnon, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]