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Forest Conservation Council v. U.S. Forest Serv.

ELR Citation: 25 ELR 21546
Nos. No. 95-15341, 66 F.3d 1489/41 ERC 2033/(9th Cir., 09/25/1995)

The court holds that Arizona and an Arizona county may intervene as of right in the injunctive relief portion of an action alleging that the U.S. Forest Service (Forest Service) violated the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) in managing northern goshawk habitat. Environmental group plaintiffs alleged that the Forest Service violated NEPA by failing to prepare an environmental impact statement that assessed, on a regionwide and forestwide basis, Forest Service guidelines for the management of the northern goshawk habitat. The groups also alleged that the Forest Service violated the NFMA by failing to amend a regional land management plan to include the recommendations and changes indicated in the guidelines. The groups sought an injunction prohibiting activities authorized by the Forest Service in northern goshawk habitat, until the Forest Service complies with NEPA and the NFMA. Arizona moved to intervene, alleging that suspension of forest management activities would increase the likelihood of catastrophic forest fires and the spread of pests and disease that could affect state trust lands. The state further alleged that the state receives $6 million to $7 million annually from forest product sales and that the state is party to an agreement with the U.S. Departments of Agriculture and the Interior requiring the state to provide fire suppression activities on state-trust and federal lands. The county alleged that the injunction would adversely affect its interest in the revenues it receives from taxes and fees it imposes on the use of federal public lands and would directly affect the Forest Service's construction of three recreational improvement projects and the county's contracts with the Forest Service for use and maintenance of roads over national forest land. The county also alleged that the injunction would affect its ongoing effort to develop a land use plan. The court first holds that the state and the county satisfied the "interest" test of Fed. R. Civ. P. 24(a)(2) because the injunction plaintiffs seek will have direct, immediate, and harmful effects on the state's and the county's legally protectable interests, which relate to the property or transaction that is the subject of the underlying action. The court holds that the disposition of the remedy portion of this action will, as a practical matter, impair the state's and the county's abilities to protect their interests. Finally, the court holds that the state and the county showed that the Forest Service may not adequately represent their interests in defending against the issuance of a broad injunction, because the Forest Service has no duty, in defending against the issuance of an injunction, to represent the interests the state and the county assert.

Counsel for Plaintiffs
Norman D. James, Jay L. Shapiro
Ryley, Carlock & Applewhite
101 N. First Ave., Ste. 2700, Phoenix AZ 85003
(602) 258-7701

Counsel for Defendant
Peggy Hennessy, Gary K. Kahn
Reeves & Kahn
610 SW Alder St., Rm. 910, Portland OR 97205
(503) 227-5144

Before D.W. Nelson, T.G. Nelson, and King,* JJ.