# United States v. 36.96 Acres of Land > Court of Appeals for the Seventh Circuit · February 22, 1985 · 754 F.2d 855 URL: https://www.frixlaw.com/law-library/cases/8927949 ## Case - **Full name:** UNITED STATES of America, and Save the Dunes Council, Inc., Proposed Intervening v. 36.96 ACRES OF LAND, MORE OR LESS, SITUATED IN the COUNTY OF LaPORTE, STATE OF INDIANA & Northern Indiana Public Service Company, & Unknown Owners - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** February 22, 1985 - **Citations:** 754 F.2d 855 - **Precedential status:** Published - **Opinion:** Dissent by Cudahy - **Judges:** Bauer, Cudahy - **Cited by:** 56 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8927949 ## How later opinions describe it (automated extraction) - stating, before the Supreme Court tightened up the requirements for Article III standing in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), that intervention as of right requires an interest greater than that required for Article III standing - holding that lobby organization attempting to foster national legislation did not have right to intervene; only government had protectable interest in condemnation action between sovereign and private party - stating that there is a “qualitative difference” between interest sufficient for standing and that required for intervention - concluding that intervention under Rule 24 requires interest greater than that of standing ## Opinion text CUDAHY, Circuit Judge, dissenting: The position of the majority seems to be that because the Council does not have the power to commence eminent domain proceedings, and does not claim a proprietary interest in the land proposed to be condemned, it cannot have any right to intervene. This is a myopic position unsupported by any authority. Indeed, the authority goes the other way. See Trbovich v. United Mine Workers, 404 U.S. 528 , 92 *861 S.Ct. 630 , 30 L.Ed.2d 686 (1972) (employees may intervene pursuant to Rule 24(a)(2) in suit brought by Secretary of Labor challenging union election results, even though 29 U.S.C. § 483 makes Secretary’s suit the exclusive remedy and prohibits the union members from initiating such a private suit); United States v. Board of School Commissioners, 446 F.2d 573 (7th Cir.1972) (requirements for intervention should be more liberal than those for standing to bring suit), cert. denied sub nom. Citizens of Indianapolis for Quality Schools v. United States, 410 U.S. 909 , 93 S.Ct. 964 , 35 L.Ed.2d 271 (1973); Avery v. Heckler, 584 F.Supp. 312 (D.Mass.1984) (intervenor need not have standing necessary to initiate lawsuit). The environmental interest is never a trivial one, and the interest by Congress in acquisition by the public of the unique Crescent Dune is, as a practical matter, supported here only by the Council. The Secretary of the Interior, after interminable delay, was content to abandon efforts at acquisition in September 1983. Congress’s interest in the acquisition of Crescent Dune, as expressed in the 1976 Amendments to the Indiana Dunes National Lakeshore Act, 16 U.S.C. § 460u-12, must be taken seriously; the only entity prepared to represent this point of view is the Council. Certainly the Department of the Interior does not represent it. In Sierra Club v. Morton, 405 U.S. 727, 735 , 92 S.Ct. 1361, 1366 , 31 L.Ed.2d 636 (1972), the Supreme Court recognized an actionable interest in “those who use [the land in question],” and further recognized, as actionable allegations, injury to “ ‘aesthetic, conservational, and recreational’ as well as economic values.” Sierra Club, 405 U.S. at 738 , 92 S.Ct. at 1368 (quoting Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 154 , 90 S.Ct. 827, 830 , 25 L.Ed.2d 184 (1970)). The Council here supported its motion to intervene with an affidavit and supporting documents establishing the use by its members of the Indiana Dunes as well as its own 30-year commitment to the establishment and preservation of the Indiana Dunes National Lakeshore. Council App. 42-71; Council Br. 8. The majority apparently concedes that the Council would have standing to maintain suit with respect to the preservation of the Dunes, but attempts to distinguish the interest required for that purpose from the interest of an intervenor in an action to condemn land for this national project. Not only is this distinction offered without any basis in authority, but it is highly formalistic. An interest in a national park surely involves an interest in acquisition of land for it and acquisition of that land may very well require condemnation. And traditional standing is sufficient interest to intervene where denial of intervention will prevent appellate review. 3B J. MOORE, MOORE’S FEDERAL PRACTICE II24.07[2], pp. 24-58-24-59 (2d ed. 1984); United States v. Imperial Irrigation District, 559 F.2d 509 (9th Cir.1977), rev’d and vacated on other grounds sub nom. Bryant v. Yellen, 447 U.S. 352, 366-68 , 100 S.Ct. 2232, 2240-41 , 65 L.Ed.2d 184 (1980) (stating court of appeals correct in deciding respondents had standing to intervene). Similarly, standing should be sufficient interest to intervene where the government has entered a stipulation that would frustrate the will of Congress and preclude judicial consideration of the merits. Accord Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129 , 87 S.Ct. 932 , 17 L.Ed.2d 814 (1967) (intervention of right allowed where government’s settlement of antitrust suit would frustrate mandate of Court). The sterility of the majority’s approach is illustrated by its statement that “the Council’s aesthetic and environmental interest in the Crescent Dune may indeed be legitimate and demonstrable, [but] we cannot say that it is direct, substantial, or legally protectable.” To say that the interest is “not legally protectable” is to beg the question, for it is only through intervention that *862 this interest can be protected. 1 On the basis of the majority’s holding, whatever the Council’s interest, it cannot be protected. It therefore goes without saying that the Council meets the second requirement for intervention of right since the proposed disposition will not only impair but destroy the Council’s ability to protect its interest. On the third criterion — the adequacy of the representation of the Council’s interest by the Department of the Interior — the record is appallingly clear. The government has been profoundly dilatory in pursuing acquisition of the land for the public benefit and has reached an agreement with NIPSCO to desist from representing the Council’s interests. Further, the Council argues rather persuasively that NIPSCO and the government have been collaborating to frustrate the will of Congress and thereby to prejudice the interests of the Council. For example, the government in the district court made no response to the Council’s Motion to Intervene but allowed NIPSCO to represent its interests in the intervention proceedings. A representative party who is collaborating with an opposing party is unlikely to be adequately representing a proposed intervenor’s interest. See Cuthill v. Ortman-Miller Machine Co., 216 F.2d 336 (7th Cir.1954). With all respect, this case may involve, though we cannot really know, a flouting of the public interest in conservation and in preservation of unique natural resources. Only by allowing participation in this proceeding by an organization of proven commitment not only to conservational values in general but to the Indiana Dunes in particular can the public interest in these national treasures be protected. As Justice Douglas said in Sierra Club : With all respect, the problem is to make certain that the inanimate objects, which are the very core of America’s beauty, have spokesmen before they are destroyed. It is, of course, true that most of them are under the control of a federal or state agency. The standards given those agencies are usually expressed in terms of the “public interest.” Yet “public interest” has so many differing shades of meaning as to be quite meaningless on the environmental front____ ... [T]he pressures on agencies one way or the other are enormous. The suggestion that Congress can stop action which is undesirable is true in theory; yet even Congress is too remote to give meaningful direction and its machinery is too ponderous to use very often. The federal agencies of which I speak are not venal or corrupt. But they are notoriously under the control of powerful interests who manipulate them through advisory committees, or friendly working relations, or who have that natural affinity with the agency which in time develops between the regulator and the regulated. 405 U.S. at 745-46 , 92 S.Ct. at 1371-72 (Douglas, J. dissenting) (footnote omitted). In the instant case we do not have the regulator and the regulated, but instead the condemnor and the condemnee. But the threat to the national treasure is the same. Here the interest of the Council in preserving the Dunes has been clear and ongoing since 1952. That interest has been a major force in saving the Dunes so far. It deserves to be a force in this case. For these reasons, I respectfully dissent. . A claim that mandamus proceedings give the Council a method to protect its interests is a concession that the interest is legally protectable. And an interest sufficient to support mandamus proceedings would certainly be "direct and substantial.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8927949. Public record. Not legal advice.