Northern Spotted Owl v. Hodel

No. C88-573Z (W.D. Wash. October 27, 1988)

The court holds that timber companies may not intervene as defendants in an action by environmental groups challenging the Fish and Wildlife Service's FWS's) decision not to place the northern spotted owl on the endangered species list. The court first holds that the companies may not intervene as of right pursuant to Federal Rule of Civil Procedure (FRCP) 24(a). The companies have not asserted a legally protectable interest, since their economic interest in the availability of federal timber is not a factor that the FWS can consider in its listing decisions under the Endangered Species Act, which requires that only biological criteria be considered. The court also denies the companies' motion for permissive intervention under FRCP 24(b). Although it does not appear that intervention by the applicants would unduly delay or prejudice adjudication of the case, the applicants have not shown that they will significantly contribute to the full development of the underlying issues. The government's counsel is competent to defend FWS's decision, and it is irrelevant that the applicants' economic interests will not otherwise be represented, since these interests are not cognizable.

[A subsequent decision in this litigation is published at 19 ELR 20277.]

Counsel for Plaintiff
Victor M. Sher, Todd True, Corrie Yackulic
Sierra Club Legal Defense Fund
216 First Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Counsel for Defendant
Charles W. Brooks
Land and Natural Resources Division, Department of Justice
P.O. Box 7369, Ben Franklin Station, Washington DC 20044-7369
(202) 633-4084

[19 ELR 20276]

Zilly, J.:

Order Denying Motion to Intervene

Various environmental organizations filed this action challenging the Department of Interior's decision against listing the northern spotted owl as an endangered species. Four timber companies and a coalition of 11 timber companies ("applicants"), all of whom rely wholly or substantially on federal timber sales, move to intervene by right or permission in defense of the Department of Interior's decision against listing the northern spotted owl on the endangered species list.

Under Fed. R. Civ. P. 24(a)(2) an applicant for intervention has a right to intervene when it can meet four requirements: (1) the application is timely; (2) the applicant has an interest relating to the property or transaction that is the subject of the action; (3) the disposition may as a practical matter impair or impede the applicant's ability to protect that interest; and (4) the interest is not adequately represented by existing parties. E.g., Smith v. Pangilinan, 651 F.2d 1320 (9th Cir. 1981). Courts generally give rule 24 a liberal construction in favor of applicants. Washington State Building and Construction Trades v. Spellman, 684 F.2d 627, 630 [12 ELR 21067] (9th Cir. 1982), cert denied sub nom. Don't Waste Washington Legal Defense Foundation v. Washington, 461 U.S. 913 (1983).

The ninth circuit requires that an intervenor possess a "legally protectable interest." E.g., California v. Tahoe Regional Planning Agency, 792 F.2d 779, 781 [16 ELR 20909] (9th Cir. 1986); Westlands Water District v. United States, 700 F.2d 561, 563 (9th Cir. 1983). In Westlands, a water district brought an action against the United States for injunctive and declaratory relief, asserting rights acquired by the district in contracts between it and the United States concerning delivery of water by the United States. The applicant, the Environmental Defense Fund (EDF), a not-for-profit corporation advocating its view of an environmentally and economically sound water policy, moved to intervene as a party defendant. The court denied the motion, noting:

EDF's interest is not founded on the contracts at issue but rather is based on what it regards as enlightened public policy. In this suit, however, it is the contracts and not public policy that are at issue. . . . The question before the District Court does not deal with the sort of contracts the United States ought to have made but with the contracts it has actually made.

700 F.2d at 563. EDF did not possess a legally protectable interest. The court concluded that EDF did not show that it met the second element for intervention as of right under rule 24(a)(2). Accordingly, the court denied intervention.

The seventh circuit affirmed an order denying intervention in a case similar to the present case. In Wade v. Goldschmidt, 673 F.2d 182 [12 ELR 20394] (7th Cir. 1982), cited with approval in Tahoe Regional Planning, supra at 782, property owners brought an action against the Department of Transportation and the state of Illinois challenging the proposed construction of an expressway and bridge across their properties. Plaintiffs asserted that the defendants exceeded their authority. Various organizations, individuals, counties and cities that would benefit from the construction of the expressway and bridge moved to intervene as defendants.

The court stated that rule 24(a)(2) requires a "direct, significant legally protectable interest" in the property or transaction subject to the action. 673 F.2d at 185. The Wade applicants asserted economic, personal, safety and environmental interests. The only focus of the case, however, was whether the defendant governmental agencies complied with applicable procedures in making the administrative decisions regarding the construction. The court ruled that: "In a suit such as this, brought to require compliance with federal statutes regulating governmental projects, the governmental bodies charged with compliance can be the only defendants. . . . [A]ll other entities have no right to intervene as defendants." Id. Hence the applicants' interests did not relate to the property or transaction that is the subject of the actions. Id. The court denied intervention.

In order to determine whether the timber companies possess a legally protectable interest in this case, and thus satisfying the second element of rule 24(a)(2), it is necessary to focus on the merits of the issues presented. Plaintiffs allege that the Secretary of the Interior, in direct violation of the language of the Act, the clearly expressed intent of Congress, and the interpretation of the Act by the Supreme Court, considered non-biological factors in deciding not to list the northern spotted owl as endangered. This court's review of the Department's decision will ultimately address whether the decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Administrative Procedure Act (APA), 5 U.S.C. § 706(a)(A).

The Act directs the Secretary of the Interior to determine whether any species have become endangered or threatened due to habitat destruction, overutilization, disease or predation, or other natural or manmade factors. 16 U.S.C. § 1533(a)(1). The Act also requires that the decision whether to list a species as endangered or threatened be based solely on an evaluation of the biological risks faced by the species, to the exclusion of all other factors. The Act provides: "[t]he Secretary shall make determinations required by subsection (a)(1) of this section solely on the basis of the best scientific and commercial data available. . . ." 16 U.S.C. § 1533(b)(1)(A) (emphasis added). Congress amended the Act in 1982 to ensure that listing decisions "are based solely upon biological criteria and to prevent non-biological considerations from affecting such decisions." Conf. Report 97-835, 97th Cong. 2d Sess. (Sept 16, 1982) at 19, reprinted in 1982 U.S. Code Cong. & Admin. News 2860. In an opinion construing the Act the Supreme Court declared that "[t]he plain intent of Congress in enacting [the Act] was to halt and reverse the trend toward species extinction, whatever the cost." Tennessee Valley Authority v. Hill, 437 U.S. 153, 184, 57 L. Ed. 2d 117 [8 ELR 20513] (1978) (further construction of nearly completed dam was permanently enjoined after discovery that the completed dam would eliminate the remaining habitat of an endangered species, the snail darter) (emphasis added).

With the foregoing in mind, it is apparent that the applicants' asserted economic interests in keeping the spotted owl off the endangered species list are not related to the transaction at issue. The economic interests of the applicants are evident. The timber companies rely on federal timber sales. If the northern spotted owl was listed as endangered it is possible that large tracts of federal timber would become unavailable for harvest. Nevertheless, the Endangered Species Act commands the Secretary of the Interior to disregard that impact in deciding whether to list the owl and instead to consider only biological factors. In short, the applicants' only asserted interest in this litigation is one that Congress has specifically removed from the consideration of either the federal government or this Court. Accordingly the applicants have not asserted a legally protectable interest capable of supporting their intervention by right as parties in this suit. The applicants fail to satisfy the second element for intervention. They lack a legally protectable interest related to the transaction at issue in the present case and therefore have no right to intervene under rule 24(a)(2).

The cases cited by the timber companies are not contrary. In each of them the intervenors possessed a recognized legallyprotectable interest in the action giving rise to a right to intervene. See Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525 [13 ELR 20928] (9th Cir. 1983) (in an action challenging the legality of actions by the Department of Interior creating a Birds of Prey National Conservation Area, Audubon Society had right to intervene in defense of the actions because it had actively participated in them and its interests corresponded with those of Congress and the Department in creating the area); County of Fresno v. Andrus, 622 F.2d 436 (9th Cir. 1980) (association of small farmers had right to intervene to preserve right to purchase federally irrigated land when small farmers were "precisely those Congress intended to protect with the reclamation acts and precisely those who [could] be injured" in the action).

[19 ELR 20277]

The applicants also seek permissive intervention under rule 24(b)(2).¹ The Court does not find that intervention by the applicants would unduly delay or prejudice the adjudication of this case. However, the applicants have not shown that they will significantly contribute to the full development of the underlying issues in this suit. Cf. Spangler v. Pasadena City Board of Education, 552 F.2d 1326, 1329 (9th Cir. 1977). The Department of the Interior through its counsel is fully competent to defend its decision. Further, it is immaterial that the applicants' economic interest will not be represented by other parties since their economic interest cannot be considered in this case.

Accordingly the motion of the timber companies and the coalition to intervene by right and by permission is hereby DENIED. In addition, the applicants' motion for summary judgment is stricken.

IT IS SO ORDERED.

1. Rule 24(b)(2) states:

Upon timely application anyone may be permitted to intervene in an action: . . . (2) When an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.