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Southwest Ctr. for Biological Diversity v. Berg

Citation: 32 ELR 20163
No. No. 99-56627, 268 F.3d 810/53 ERC 1355/(9th Cir., 09/27/2001)

The court reverses a district court decision and holds that a group of developers may intervene as of right in a suit brought by environmental groups against a city and against local, state, and federal officials for violating a state environmental plan and the Endangered Species Act (ESA). The city was granted an ESA incidental take permit (ITP) by the U.S. Fish and Wildlife Service in conjunction with a development plan designed by the city, state, and federal governments to develop the city while protecting wildlife in the area. The environmental groups brought suit claiming that the city violated the ESA by not protecting seven vernal pool species. The groups also challenged the implementation of the development plan and the city's ITP. The developers sought and were denied intervention in the suit by the district court.

The court first holds that the developers have a legally protectable interest in the suit because they are present third-party beneficiaries of the development plan and presently rely on the city's ITP. Courts are to take all well-pleaded, nonconclusory allegations and declarations supporting the motion as true absent sham, frivolity, or other objections. Thus, the district court erred by not accepting allegations and evidence the developers submitted in support of their motion to intervene. Here, the developers stated that five ongoing projects were included in the development plan, and that with respect to each of these projects, the developers were third-party beneficiaries of the development plan. The court also holds that the relief requested by the environmental groups would affect the interests of the developers. The court further holds that the interests of the developers are not adequately represented by any existing group in the litigation. The court, therefore, reverses the district court's order denying the developers' motion for leave to intervene as of right.

Counsel for Plaintiffs
Neil Levine
University of Denver School of Law
7150 Montview Blvd., Denver CO 80220
(303) 871-6996

Counsel for Defendants
Hugh Hewitt
Hewitt & McGuire
19900 MacArthur Blvd., Ste. 1050, Irvine CA 92612
(949) 798-0500

Gould, J. Before Rymer and Hawkins, JJ.