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Oregon Judges Reject Efforts to Recreate Rule Regarding Limited Intervention, Providing Clear Path Forward for Full Intervention in Public Land Cases

August 16, 2011

Opinions from two federal court magistrate judges last week and the week prior appear to have put the federal defendant rule to rest, at least in the Oregon District Court.  Earlier this year, a panel of Ninth Circuit judges rejected the federal defendant rule—a rule that precluded grazing permit holders and timber contractors from fully participating in cases challenging federal agencies such as the Forest Service and Bureau of Land Management (BLM) from authorizing activities such as a grazing and timber sales. (Here is a link to our earlier post on this decision.) Left open was the question of how federal judges would apply that decision in the district courts, including the Oregon Federal District Court.

In the two cases at issue, the plaintiffs requested that the court continue to preclude intervenors from environmental cases involving the federal government, albeit on slightly different grounds than those used in the federal defendant rule.  In the first case, a holder of a grazing permit issued by the BLM, Lakeview District sought to intervene in a case concerning a plan adopted by the BLM to install a fence that would allow the permittee to run a more efficient rest rotation system.  In the second case, more than a dozen holders of grazing permits issued by the Forest Service for the Wallowa Whitman, Umatilla and Malheur National Forests sought to intervene in a case challenging the Forest Service’s renewal of the permittees’ term grazing permits under the categorical exclusion exception to the National Environmental Policy Act.  The plaintiffs’ argument in both cases was that the permit holders should not be allowed to intervene  because the Forest Service and BLM would fully represent them.  Both judges rejected the plaintiffs’ position, finding that the federal government did not represent the grazing permittees in either case.

Further, in his opinion, Judge Papak held that two earlier Oregon decisions that had ruled that grazing permits were not protectable interests under the intervention rule were no longer good law.  Judge Papak ruled, instead, that grazing permits are legally protectable interests.

These two opinions are a true success for public lands grazing permit holders in Oregon, and are a basis from which others can work to ensure the Ninth Circuit’s decision rejecting the federal defendant rule is appropriately applied to intervention decisions throughout the circuit.

If you have any questions, please contact me at ehoward@dunncarney.com.

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