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California v. Bergland

Citation: 9 ELR 20795
No. No. S-79-523-LKK, 13 ERC 1795/(E.D. Cal., 09/27/1979) Motion to intervene granted

The court grants several motions to intervene in a suit challenging the legal sufficiency of the environmental impact statement (EIS) prepared as part of the Forest Service's Roadless Area Review and Evaluation (RARE II). RARE II is designed to inventory all of the approximately 62 million acres of roadless lands in the National Forest System and to designate them as either wilderness (which would require congressional approval) or developable non-wilderness. Plaintiff challenged the designation of 41 areas as non-wilderness in California, claiming that the relevant portion of the EIS violated the National Environmental Policy Act because it is not site specific, is biased towards non-wilderness options, and includes insufficient data. Plaintiff also charges that there was no opportunity to comment on the final proposal. In order to intervene of right, the court determines that a party must show a significant protectable interest in the matter, practical impairment of this interest if intervention is not granted, and inadequate representation by the existing parties. FED. R. CIV. P. 24(a)(2). At its discretion, the court may allow permissive intervention under FED. R. CIV. P. 24(b) if the potential intervenor's claim or defense and the main action have common issues of law or fact, and the intervention will not unduly delay the action or prejudice the rights of the parties. The court denies the motions of lumber companies to intervene because of time considerations but grants them amicus curiae status because of their clear interest in the future status of the lands. California's Siskiyou and Shasta Counties, in which a number of areas in controversy are located, are denied intervention of right, but the court grants them permissive intervention, limited to the issues raised by other parties and their economic interest if relevant. Although the requisite interest for intervention is present and the impairment requirement has been met, they have not demonstrated inadequate representation. On the other hand, Trinity and Del Norte Counties are allowed to intervene by right. These counties seek to prove thatthe EIS was factually incorrect with regard to areas within their boundaries, an issue not raised by plaintiff. Thus, the interest, practical impairment (by stare decisis or res judicata), and inadequate representation requirements are met. A group of associations of lumber companies is granted permissive intervention because although they have failed to show that the federal government will not represent their concerns, their interest in the subject matter is strong. The Natural Resources Defense Council, Inc. is granted intervention of right because it is a national environmental group that participated heavily in the RARE II process, and the State of California cannot adequately represent its interest. Finally, a group of local environmental organizations and individuals is allowed to intervene of right because it seeks to raise issues regarding the validity of the EIS not raised by plaintiff.

For a digest of the complaint and memorandum supporting summary judgment filed by plaintiff in this case, see ELR PEND. LIT. 65653.

The full text of this opinion is available from ELR (15 pp. $2.00, ELR Order No. C-1204).

Counsel for Plaintiffs
George Deukmejian, Attorney General; Robert H. Counett, E. Clement Shute, Jr., Ass't Attorneys General; Alexander Henson, E. Robert Wright, Deputy Attorneys General
555 Capitol Mall, Suite 350, Sacramento CA 95814
(916) 445-3323

Counsel for Defendants
Francis H. Goldsberry, Ass't U.S. Attorney
2058 Federal Bldg., 650 Capitol Mall, Sacramento CA 95814
(916) 440-2331

Gary Wilburn
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2847

Counsel for Defendants-Intervenors Siskiyou, Del Norte, and Shasta Counties
Robin L. Rivett
Pacific Legal Foundation
455 Capitol Mall, Suite 465, Sacramento CA 95814
(916) 444-0154

Counsel for Defendant-Intervenor Trinity County
Ronald Barbatoe, Ass't District Attorney
P.O. Box 310, Weaverville CA 96093
(916) 623-2031

Counsel for Defendants-Intervenors Nat'l Forest Products Ass'n et al.
David Beer
Shea & Gardner
1800 Massachusetts Ave. NW, Washington DC 20036
(202) 828-2000

George A. Sears
Pillsbury, Madison & Sutro
225 Bush St., San Francisco CA 94105
(415) 983-1000

Counsel for Plaintiff-Intervenor Natural Resources Defense Council, Inc.
Roger Beers
Natural Resources Defense Council, Inc.
25 Kearney St., San Francisco CA 94108
(415) 421-6561

Counsel for Plaintiffs-Intervenors Animal Protection Inst. of America et al.
Francia M. Welker
366 N. Main St., Ft. Bragg CA 95437
(707) 964-7462

Counsel for Amicus Curiae Webco Lumber, Inc. et al.
Jared Carter
Rawles, Hinkle, Finnegan & Carter
390 W. Standley St., P.O. Box 720, Ukiah CA 95482
(707) 462-6694

Gerald Grinstein
Preston, Thorgrimson, Ellis, Holman & Fletcher
2000 IBM Bldg., Seattle WA 98101
(206) 623-7580

Karlton, J.