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Ninth Circuit Abandons the Rule Categorically Denying Intervention in NEPA Cases

January 14, 2011

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.


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