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Ninth Circuit Expands Intervention Rights in NEPA Lawsuits

January 26, 2011

Earlier this month, the Ninth Circuit abandoned the “federal defendant” rule, and opened the door for private parties, local and state governments, tribes, and environmental NGOs to intervene in NEPA litigation in nine Western states.The Wilderness Society v. United States, --F.3d--, 2011 WL 117672 (9th Cir. Jan. 14, 2011) (en banc). The decision could substantially alter the dynamics of NEPA litigation in the West, where challenges to energy and natural resource projects are common.

NEPA’s procedural requirements have generated tremendous amounts of litigation – notably over the issue of whether a project’s impacts are “significant” and require evaluation in a detailed environmental impact statement. This is particularly true in Western states.  The federal government manages over 16 million acres of land in the nine states comprising the Ninth Circuit, and land management decisions pertaining to timber, grazing, mining, and renewable energy development are frequently litigated under NEPA.[1]

Prior to its Wilderness Society opinion, the Ninth Circuit was one of only two federal circuit courts that limited intervention as a matter of right in NEPA challenges. All other parties, including the project proponent, could only intervene with leave of court. While the Wilderness Society decision will likely open the door to greater intervention in NEPA cases, a putative intervenor will still need to demonstrate that “it will suffer a practical impairment of its interests as a result of the pending litigation” before it will be permitted to intervene.[2]

Legal Background

NEPA requires federal agencies to evaluate and disclose the environmental consequences of their actions. Federal agencies are required to prepare an environmental impact statement (EIS) for major federal actions significantly affecting the quality of the human environment.[3] To determine whether an EIS is necessary, an agency must prepare an environmental assessment (EA) to evaluate the project’s potential impacts.[4]If the EA demonstrates that the proposed project will not have significant environmental effects, the agency will issue a finding of no significance (FONSI), and a full EIS is not required.

Until its Wilderness Society opinion, the Ninth Circuit’s “federal defendant” rule significantly curtailed the ability of non-parties to intervene in NEPA litigation. Federal Rule of Civil Procedure 24(a) describes the circumstances under which a court must allow a non-party to intervene in litigation. The Ninth Circuit generally applies a four-part test when determining whether a party may intervene as a matter of right. Intervention of right is appropriate when:

  1. the applicant’s motion is timely;
  2. the applicant has asserted an interest relating to the property or transaction which is the subject of the action;
  3. the applicant is so situated that without intervention the disposition may, as a practical matter, impair or impede its ability to protect that interest; and
  4. the applicant’s interest is not adequately represented by the existing parties.[5]

While the Rule 24(a) intervention of right standard has allowed for intervention in a broad range of environmental litigation, the Ninth Circuit developed its bright-line “federal defendant” rule that categorically precluded intervention as a matter of right on the merits of NEPA claims. In 1989, the Ninth Circuit first applied the “federal defendant” rule in Portland Audubon Society v. Hodel, in which conservation groups sought to enjoin a BLM decision allowing increased logging of old-growth timber.[6] A number of logging groups and municipalities sought to intervene, arguing that they had a significant economic stake in the outcome of the lawsuit. The Ninth Circuit denied intervention on grounds that purely economic interests are not protected by NEPA, and that the parties’ economic concerns were not a “protectable interest” that would warrant intervention.

Since its Portland Audubon Society v. Hodel decision, the Ninth Circuit has consistently applied the “federal defendant” rule to deny intervention of right on the merits of NEPA challenges. The court, however, has permitted limited intervention of right during the remedial phase of NEPA cases, which has allowed intervenors to participate in the fashioning of injunctive relief.[7]

Factual Background

The federal agency action in Wilderness Society involved the Forest Service’s 2008 decision to designate 1,196 miles of roads and trails in the Idaho/Utah Sawtooth National Forest for motorized use, and to ban “cross-country” motorized use (i.e. off-road motorized use). The Forest Service’s decision was supported by a Decision Notice and FONSI.

The Forest Service’s decision to not prepare an EIS was challenged by environmental groups in the U.S. District Court of Oregon. The Plaintiffs sought specific injunctive relief pending compliance with NEPA and other environmental statutes.  Specifically, the Plaintiffs sought to require the Forest Service to: (1) continue the prohibition on cross-country motorized travel imposed by the 2008 Decision Notice; and (2) restrict motorized-travel routes to those authorized for motorized use prior to the Decision Notice (which were less-extensive). In all, the proposed injunctive relief would limit motorizeduses more than both the Decision Notice and motorized uses allowed prior to the Decision Notice.

Three groups representing recreational interests moved to intervene in the District Court to rebut the plaintiffs’ argument that the Forest Service’s plan permitted too much motorized use. The District Court applied the “federal defendant” rule and denied the recreational groups’ motions to intervene.


On appeal, the recreation groups and 37 amici (including conservation, recreation, business groups, state and local governments, Indian tribes, and the federal government) argued that the Ninth Circuit should abandon its “federal defendant” rule, and apply its traditional Rule 24(a) test for determining whether a party may intervene as a matter of right in NEPA cases. The court agreed. The Ninth Circuit first held that the “federal defendant” rule ran counter to the general standards it applied in all other intervention of right cases:

In applying a technical prohibition on intervention of right on the merits of all NEPA cases, it eschews practical and equitable considerations and ignores our traditionally liberal policy in favor of intervention. It also 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. Courts should be permitted to conduct this inquiry on a case-by-case basis, rather than automatically prohibiting intervention of right on the merits in all NEPA cases.[8]

The court went on to observe that the “federal defendant” rule conflicted with its liberal intervention of right policy in suits arising under other federal environmental laws. For example, the Ninth Circuit has permitted intervention of right on the merits of disputes arising under the Federal Land Policy and Management Act of 1976, the Endangered Species Act, and the Clean Water Act. The court explained: “[w]e no longer see any principled reason to categorically prohibit intervention of right on the merits of NEPA actions while approving of it in cases challenging the federal government’s compliance with other environmental and administrative statutes.”[9]

Finally, the Ninth Circuit observed that the “federal defendant” rule was inconsistent with all but one other federal circuit court. Only the Seventh Circuit restricted intervention of right in NEPA cases, but the Wilderness Society court noted that the Seventh Circuit’s prohibition was not limited to NEPA and applied broadly to all actions “brought to require compliance with federal statutes regulating government projects.”[10] In further support of its decision to abandon the “federal defendant” rule, the court observed that the “reality is that NEPA cases frequently pit private, state, and federal interests against each other. Rigid rules in such cases contravene a major premise of intervention-the protection of third parties affected by pending litigation.”[11] Summing up its rationale for abandoning the federal defendant rule, the court stated: “In applying a … prohibition on intervention of right on the merits of all NEPA cases, [the “federal defendant” rule] eschews practical and equitable considerations and ignores our traditionally liberal policy in favor of intervention.”[12]


The Wilderness Society decision marks a notable change in Ninth Circuit NEPA jurisprudence. Rather than categorically prohibiting intervention of right on the issue of whether the federal government complied with its obligations under NEPA, courts within the circuit will now make a “contextual, fact-specific inquiry” to determine whether a putative intervenor has demonstrated that “it will suffer a practical impairment of its interests as a result of the pending litigation.”

For more information, please contact any other member of Marten Law’s Permitting and Environmental Review practice group.

[1] U.S. General Services Administration, FY 2009 Federal Real Property Statistics.

[2] Wilderness Society, --F.3d--, 2011 WL 117672 at *5 (quoting California ex rel. Lockyer v. United States, 450 F.3d 436, 441 (9th Cir.2006)).

[3] 42 U.S.C. § 4332(C).

[4] 40 C.F.R. § 1504.1 & 1508.9.

[5] Portland Audubon Soc’y v. Hodel, 866 F.2d 302, 308 (9th Cir. 1989).

[6] Id.

[7] E.g., Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1493-99 (9th Cir. 1995).

[8] Wilderness Society, --F.3d--, 2011 WL 117672 at *4.

[9] Id.

[10] Id. at *4 (quoting Wade v. Goldschmidt, 673 F.2d 182, 185 (7th Cir. 1982 (per curiam)).

[11] Id. at *4 (quoting Kleissler v. U.S. Forest Serv., 157 F.3d 964, 971 (3d Cir.1998)).

[12] Id. at *3.

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