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http://dunncarneynaturalresourcesupdates.com/2011/01/14/ninth-circuit-abandons-the-rule-categorically-denying-intervention-in-nepa-cases/

Ninth Circuit Abandons the Rule Categorically Denying Intervention in NEPA Cases

January 14, 2011, by Elizabeth E. Howard Dunn Carney attorney

In a landmark decision, the Ninth Circuit has abandoned the “none but a federal defendant rule” or “federal defendant rule”. This rule has categorically excluded intervention by industry and recreation groups and by local governments from participating in the merits of National Environmental Policy Act (NEPA) and other environmental law cases for over 20 years. No fewer than thirty-seven amici argued in favor of the Ninth Circuit’s abandonment of the rule.

The Court found its “bright-line rule is inconsistent with the text of Rule 24(a)(2)”—the rule regarding intervention in federal cases. In a thorough review of its decisions over the past 20 years, the Court stated that “the ‘federal defendant’ rule’s limitation on intervention. . .runs counter to the standards we apply in all other intervention of right cases.” The court harkened back to its liberal policy that favors intervention and reaffirmed that the interest at issue for intervenors need only be protected by some law, not the law at issue in the case before it (i.e. NEPA); The rule “fails to recognize the very real possibility that private parties seeking to intervene in NEPA cases may, in certain circumstances, demonstrate an interest “protectable under some law,” and a relationship between that interest and the claims at issue.” The court also noted that it had not categorically denied intervention in other cases, indicating that its decision, while based on a NEPA case, extends to all environmental cases where federal agencies are defendants. This decision re-opens the court house door to grazing, farming, and recreational groups, and local governments that have been excluded from active participation in key decisions that affect their interests for many years.

If you have any questions about this development, please contact me at EHoward@dunncarney.com

http://drovers.com/news_editorial.asp?pgID=675&ed_id=8422

Groups applaud ruling on environmental lawsuits
Drovers news source, January 14, 2011

The Ninth Circuit Court of Appeals today, Jan. 14, 2011, abandoned the ‘None but a Federal Defendant’ rule that for more than 20 years has prevented anyone but a federal agency from defending cases brought under the Administrative Procedures Act that allege violations of the National Environmental Protection Act and other environmental laws. Public Lands Council Executive Director and National Cattlemen’s Beef Association Director of Federal Lands Dustin Van Liew said the decision is a major victory for livestock ranchers and other public lands users.

“Well-funded environmental activist organizations have made a hobby out of claiming violations of NEPA and other environmental laws. Unfortunately, under the ‘None but a Federal Defendant’ rule, ranchers and public lands users have been excluded from defending themselves and actively participating in cases regarding critical decisions that affect their livelihoods,” Van Liew said. “Ranchers and other public lands users should be allowed to intervene in court decisions that affect their operations and this landmark decision will finally restore that right.”

PLC, NCBA and other organizations representing public-lands users filed an amicus brief on Oct. 21, 2010, asking the Ninth Circuit Court to abandon the ‘None but a Federal Defendant’ rule. The Court’s unanimous decision today supported PLC and NCBA’s request stating that the “federal defendant’ rule’s limitation on intervention…runs counter to the standards we apply in all other intervention of right cases.” The decision went on to say that the rule “fails to recognize the very real possibility that private parties seeking to intervene in NEPA cases may, in certain circumstances, demonstrate an interest protectable under some law, and a relationship between that interest and the claims at issue.”

According to Dunn Carney attorney, Elizabeth Howard, “The decision brings the Ninth Circuit back in line with other courts in the country. And, the briefs filed by the ranching community played an important role in this decision.”

Howard represented PLC, NCBA and other ranching interests who filed the only amicus brief asking the Ninth Circuit review the case, and later filed an amicus brief supporting abandonment of the federal defendant rule. She said ranchers will finally have the ability to truly protect their interests in these critical environmental cases.

“Livestock ranchers rely on healthy and abundant natural resources to sustain their livestock. They take pride in responsibly utilizing those resources,” Van Liew said. “Now they will once again have a seat at the table when unfounded lawsuits are brought before the courts alleging violations under NEPA and other environmental laws. PLC and NCBA support the Ninth Circuit Court’s decision in abandoning a rule that has crippled ranchers and other public lands users for far too long.”

Source: Public Lands Council