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Coalition of Ariz./N.M. Counties for Stable Economic Growth v. Department of the Interior

ELR Citation: 27 ELR 20437
Nos. 95-2189, 100 F.3d 837/(10th Cir., 11/15/1996)

The court holds that an individual may intervene as of right under Fed. R. Civ. P. 24 in a challenge to the U.S. Fish and Wildlife Service's (FWS') decision to list the Mexican spotted owl as threatened under the Endangered Species Act (ESA). The individual initiated the process to list the owl and has been directly involved with the owl as a wildlife photographer, amateur biologist, and naturalist. The court first holds that the individual's involvement with the owl in the wild and his persistent record of advocacy for its protection amounts to a direct and substantial interest in the listing of the owl for the purpose of intervention as of right. Although the individual has little economic interest in the owl, the court holds that to limit intervention to situations where the applicant can show an economic interest would impermissibly narrow the broad right of intervention enacted by Congress and recognized by the courts. Additionally, the individual's interest in the owl is legally protectable, as evidenced by his successful effort to list the owl under the ESA. The court then holds that because the individual's interest in the litigation is direct, substantial, and legally protectable, it sufficiently "relates to the property or transaction which is the subject of the action," as required by Fed. R. Civ. P. 24(a)(2). The court next holds that if the district court were to rule in favor of plaintiff in this case and to mandate that the U.S. Department of the Interior (DOI) delist the owl, the individual's interest in the protection of the owl would be impaired. Although he could submit a new petition to the FWS to protect the owl, he would be impaired by the stare decisis effect of the district court's decision, and the owl and its habitat would not be protected while the FWS considered the new petition. Last, the court holds that the individual has made the minimal showing necessary to suggest that the government's representation of his interest may be inadequate. DOI must represent the public interest, which may differ from the individual's particular interest in the protection of the owl in the habitat where he has photographed and studied the species. And DOI's ability to adequately represent the individual is made all the more suspect by its reluctance in protecting the owl, doing so only after the individual threatened and eventually brought a lawsuit to force compliance with the ESA.

Counsel for Plaintiff
Daniel B. Frank
Budd-Falen Law Offices
623 W. 20th St., Cheyenne WY 82001
(307) 632-5105

Counsel for Defendant
John J. Kelly, U.S. Attorney
U.S. Attorney's Office
625 Silver Ave. SW, Albuquerque NM 87102
(505) 766-3341

Before HENRY, LIVELY,* and MURPHY, Circuit Judges.