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Wilderness Society v. United States Forest Service

ELR Citation: 41 ELR 20062
Nos. No. 09-35200, (9th Cir., 01/19/2011)

The Ninth Circuit abandoned the "federal defendant" rule, which categorically prohibits private parties and state and local governments from intervening of right on the merits of NEPA claims. The case arose out of the U.S. Forest Service's adoption of a travel plan that designated 1,196 miles of roads and trails for use by motorized vehicles in a portion of the Sawtooth National Forest. Environmental groups filed suit challenging the plan under NEPA, and three recreation groups moved to intervene. Applying the federal defendant rule, the lower court denied the motion. But the federal defendant rule is at odds with Fed. R. Civ. P. 24(a)(2) and the standards applied in all other intervention of right cases. When construing motions to intervene of right under Rule 24(a)(2), courts no longer need to apply a categorical prohibition on the merits or liability phase of NEPA. Instead, to determine whether a putative intervenor demonstrates the "significantly protectable" interest necessary for intervention of right in a NEPA action, the operative inquiry should be, as in all cases, whether "the interest is protectable under some law" and whether "there is a relationship between the legally protected interest and the claims at issue." Accordingly, the case was reversed and remanded so that the lower court may reconsider the recreation groups' motion to intervene.