Law and the Environment
10/8/2009 11:45:06 AM EST
The 10th Circuit finds that intervention will nearly always be permitted when the underlying lawsuit has the potential to impair the intervenor's legal or financial interests
Partner, Ropers Majeski Kohn & Bentley
A variety of parties often seek to intervene in “high profile” cases in order to argue for or promote their agenda on the issue; it is not uncommon for such petitions to be denied. However, the rules are different when the intervenor has a financial or other direct stake in the results.
In WildEarth Guardians v. U.S. Forest Service, et al, 573 F.3d 992 (10th Cir. 2009), this general principle was demonstrated. The Forest Service approved plans for venting methane gas from a coal mine. The mine owner began constructing methane-drainage wells and mining the coal seam. In a lawsuit, plaintiffs alleged that defendants had violated NEPA by, among other allegations, failing to analyze reasonable alternatives to methane venting.
The Court of Appeals noted that it follows a somewhat liberal line in allowing intervention. The central concern in deciding whether intervention is proper is the practical effect of the litigation on the applicant for intervention. The Court noted that although FRCP 24(a)(2) describes an intervention "of right," it is not a mechanical rule but requires courts to exercise judgment based on the specific circumstances of the case. To satisfy the “impairment” element of the intervention test, a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied. This burden is minimal, according to the Court. If an absent party would be substantially affected in a practical sense by the determination made in an action, he/she/it should, as a general rule, be entitled to intervene.
The Court of Appeals therefore determined that the mine owner was entitled to intervene as of right under FRCP 24 because (1) the mine owner showed the potential for impairment of its interests since it had a direct economic stake in the subject of the litigation and a declaratory judgment in favor of the organization could have severe consequences for future mining, and (2) the mine owner established a possibility of inadequate representation since the government had multiple objectives and could well decide to embrace some of the environmental goals of the plaintiff. Create an account or login to post comments.