Thanks to Jon for starting this discussion with a post on “how sue and settle really works”. Thanks to Guy for giving us the link to who can get intervenor status and why. I asked Scott Horngren, of the American Forest Resource Council, if my memory was correct that sometimes timber folks can’t get intervenor status. Based on what he says, It seems rather arbitrary (and capricious? ;)) across circuits. Especially inconsistent, I think, is the sentence I italicized. I wonder if what Scott refers to as resource users also includes anyone whose uses are opposed by another group based on environmental concerns (skiing, hiking, ATV’s etc.)? Doesn’t seem very.. errr.. just..
Many thanks to Scott for his explanation:
You are correct that resource users have been denied intervention (and the ability to bring their own challenge as plaintiff to an agency NEPA decision) in the past, and it still can be a problem in certain circumstances. The decisions vary by Circuit so the approach is not identical across the entire federal court system. I agree that it is inconsistent of agencies and environmental groups in one breath to profess to want to hear the views and encourage the participation of all parties in agency decision-making under NEPA and the National Forest Management Act yet in the next breath oppose intervention of the same people who participated in the process when the agency decision is later challenged in court.
In the Ninth Circuit, only recently has the “none but the federal defendant” rule on intervention been overturned. The rule was judicially created in Wade v. Goldschmidt, 673 F.2d 182 (7th Cir. 1982) and extended to the Ninth Circuit in Portland Audubon Society v. Hodel, 866 F.2d 302 (9th Cir. 1989). It essentially stated that in litigation challenging a NEPA decision (and later NFMA) there could be no intervention “of right” in the case because if the agency lost it was only the agency that would have to rewrite the NEPA decision or do additional analysis to comply with the law. It was not until 2012 in Wilderness Society v. United States Forest Service, 630 F.3d 1173 (9th Cir. 2012), that an en banc panel of the Ninth Circuit stepped in to reverse the judge made law that had been in place for 22 years. In that case motorized recreation users led by the Magic Valley Trail Machine Association were denied intervention in the Wilderness Society lawsuit challenging a Forest Service decision involving road and trail use by motorized vehicles. The Ninth Circuit reversed its long-standing position that only an agency can be a defendant (and thus no intervenors were allowed to defend the decision). I do not know the current status of the rule in the Seventh Circuit. In the D.C. Circuit is less clear whether resource users can intervene in cases, since unlike the Ninth Circuit, the D.C. Circuit requires a proposed intervenor to demonstrate it would have standing under the statutes in order to intervene in a case. As explained below courts often consider that resource users do not have standing to bring a NEPA case.
In addition, there is the issue of standing to bring a NEPA case. Ironically, in many courts environmental groups can challenge a NEPA decision as a plaintiff but resource users are precluded from doing so. In particular, under Ninth Circuit law someone with an economic interest does not have standing to challenge an agency NEPA decision. That would mean a rancher whose economic livelihood is dependent on a grazing lease could not challenging NEPA decision of the Forest Service to challenge that lease. The court’s reasoning is that NEPA is concerned with environmental protection and only those with an interest in protection of the environment can bring a lawsuit under NEPA. However, the Supreme Court has emphasized that NEPA is a procedural statute that does not dictate any substantive environmental result. So the correct law should be that anyone who participated in the NEPA procedures can be a plaintiff to challenge the inadequacy of the procedures. I expect that as with the “none but the federal defendant rule” on intervention under NEPA, the “only environmental interests can be plaintiffs in a NEPA case” rule will be eventually overturned. (This “standing’ aspect also becomes an issue if you want to appeal a court decision on the merits striking down agency action but the government decides not to appeal. The Ninth Circuit court takes the position that if you cannot demonstrate standing under NEPA, you can’t appeal the adverse decision if the government doesn’t, even though in the Ninth Circuit you do not have to demonstrate standing to intervene in the case in the first place).
Finally, even as an intervenor in a case, some judges preclude you from participating in settlement discussions. But if a settlement agreement is reached between the environmental group and the agency, an intervenor, whether involved in the settlement discussions or not, has a right to object to the settlement in the district court. And if the objection is denied, the intervenor can file an appeal challenging the settlement agreement. It is rare however that a court will overturn a settlement agreement between the principal parties of the case.