Amicus Curiae Brief — Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 810 (2017) (No. 16-605)

FILED

APR 3- 2017

No. 16-605

jn The

Supreme Court of the Gnited ies

o-

TOWN OF CHESTER,

Petitioner,

v.

LAROE ESTATES, INC.,

Respondent.

~_— ¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

_ +

BRIEF AMICI CURIAE OF AMERICAN

FOREST RESOURCE COUNCIL, AMERICAN

FARM BUREAU FEDERATION, PUBLIC

LANDS COUNCIL, NATIONAL CATTLEMEN’S

BEEF ASSOCIATION, AND INTERNATIONAL

ASSOCIATION OF GEOPHYSICAL CONTRACTORS

IN SUPPORT OF RESPONDENT

= +

Scott HORNGREN

Counsel of Record

CAROLINE LOBDELL

WESTERN RESOURCES

LEGAL CENTER

9220 SW Barbur Blvd.

Suite 327

Portland, Oregon 97219

(503) 768-8500

shorngren@wrilegal.org

clobdell@wrlegal.org

Counsel for Amici Curiae

—_ —— — = —

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEFS.COM

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TABLE OF CONTENTS

The Requirement of Article III Standing

for a Plaintiff to Sue in Federal Court Does

Not Apply to a Defendant That Appears in

Federal Court to Defend the Suit..............

Courts Have Rejected Unfounded Hurdles

to Intervention as a Defendant.................

If Article III Standing Is Required for In-

tervention Under Rule 24(a)(2), Then Pru-

dential Standing Would Also Be Required

and Could Eliminate Amici’s Right to In-

tervene in Cases Involving NEPA and

Many “Environmental” Statutes ...............

Article III Standing for Intervention Un-

der Rule 24(a) Is Not Necessary for Courts

to Control the Scope of Litigation and

Manage Cases with Multiple Parties ........

The United States Is Not a Neutral Party

Regarding Whether Article III Standing

Is Required for Intervention Under Rule

EE aaldinedhchantsedcsts used cnagaplantaliscuceamaienentac

13

16

20

li

TABLE OF AUTHORITIES

Page

CASES

Arakaki v. Cayetano, 324 F.3d 1078 (9th Cir.

SI seintaighdsh alia said dsviecsal ae steatngnt sven tiesbedinianadudeubieuannes 22

Ashley Creek Phosphate Co. v. Norton, 420 F.3d

I i csapunati 18

Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d

NRE MSN NA a2 SEA 14

Cascade Nat. Gas Corp. v. El Paso Nat. Gas Co.,

Ne a spuenes 9

Cascadia Wildlands v. Bureau of Land Mgmt.,

No. 6:12-CV-00095-AA, 2012 WL 6738275 (D.

ae a a do cen dab banindmeuein 11

Cascadia Wildlands v. U.S. Forest Serv., 937

pS Bg Bi Ee.) 19

Com. of Pa. v. Rizzo, 530 F.2d 501 (3rd Cir.

RTE SERSPIE BE PLS EC UNS Pigs Snes en re oe ee 22

County of St. Louis v. Thomas, 967 F. Supp. 370

a csaeeanennendia 18

Freedom from Religion Foundation, Inc. v. Geis-

ler, 644 F.3d 836 (9th Cir. 2011)... ceee eee eee 15

Friends of the Earth, Inc. v. Laidlaw Envitl. Serv.,

es ee I anc cscs desccminsibconsnitcueese 7

Gunpowder Riverkeeper v. F-E.R.C., 807 F.3d 267

nn a asa dusiadnionaavansse 18

Kleissler v. U.S. Forest Serv., 157 F.3d 964 (3rd

EE IIIT sridudiscciedadunindeh concetieumseoiatinientékcesdassdicenckeundie 16

iil

TABLE OF AUTHORITIES ~ Continued

Page

Lower Arkansas Valley Water Conservancy Dis-

trict v. United States, 578 F.Supp.2d 1315 (D.

OO a alle ocealehesammmasebepents 18

Lujan v. Defenders of Wildlife, 504 U.S. 555

TR ERR ee Sree Sailers e a meee ieee meRr nna ee 7

Lujan v. National Wildlife Federation, 497 U.S.

ie SERRATE Ea ee = rene ei enor ee eee 14

Nat'l Credit Union Admin. v. First Nat. Bank &

OEE Ce 5 Ce Re Ge Cine cocssccevesccensconesseses 16

Nevada Land Action Ass’n v. United States For-

est Service, 8 F.3d 713 (9th Cir. 1993)..................... 18

Oregon Wild v. U.S. Forest Serv., 193 F.Supp.3d

I a aritiounaidbamioonsneis 12

Robertson v. Methow Valley Citizens Council,

a ceipmueepeenaenenmnpueneniaih 19

Sam Fox Publishing Co. v. United States, 366

a ausieenedidiebebinbianeiainciionens 22

San Juan Cty., Utah v. United States, 503 F.3d

1163 (10th Cir. 2007) (en banc)... eee 9,10

Sierra Club v. Espy, 18 F.3d 1202 (5th Cir.

STII sis taco hactel cicineaiccentisés . <igiosdpmubimeisiesemmenniaabbeapeabien 16

Stringfellow v. Concerned Neighbors in Action,

I SIE sc covinincinkinsleteiseesetnnammesmmesionstanhies 21

Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d

jit) ae ® ) ) ge SEM diaint taht a0 ee 8

Trbovich v. United Mine Workers of Am., 404 U.S.

22

Se ee eccecniissencnetascipineussessnessenbanpescommpnesccnssescanent

iv

TABLE OF AUTHORITIES — Continued

Page

Warth v. Seldin, 422 U.S. 490 (1975)..............0....0008. 16

Western Watersheds Project v. Matejko, 468 F.3d

ERE ITE rae ne 11

WildEarth Guardians v. U.S. Forest Serv., 573

Re Ee CIEE EE BI Pcecsnccevscecscesvsosicsscntocseseseutse 15

Wilderness Soc’y v. Morton, 463 F.2d 1261 (D.C.

SSAA STA ET EA ee A Se NO 16

Wilderness Society v. United States Forest Ser-

vice, 630 F.3d 1173 (9th Cir. 2011) (en bance).......... 15

STATUTES

as ctl cradles haeninaapuppidanensniai 14

I i rin erialinticcaheiitisbiebvapivuntoninivadbagn 10

I I bis iiinirniciaaemigcbs tndcaiassnenesniepiicneaimnnsinde 10

I a clas besa bc Sea INOnN 12

I a aaa dual adap epee 12

a cca tedacaheadbeamnennedneuneioogshineetndeiltl 14

I aaa ee iasicinsensiepialiiies 14

I I OE I aoe aeasnanensiensteidaichionusiosnds 11

I s ceceaaiicaniibaeibiaonenl 11

OTHER AUTHORITIES

Business as Usual? Analyzing the Development

of Environmental Standing Doctrine Since

1976, 5 Harv. L. & Pol’y Rev. 289 (2011)................. 17

Vv

TABLE OF AUTHORITIES — Continued

Page

7C Charles Alan Wright et al., Fed. Prac. & Proc.

ic sss cemssseiieantighabeemeienionennsetis 8

7C Charles Alan Wright et al., Fed. Prac. & Proc.

eR 8 8 ee emer 8

7C Charles Alan Wright et al., Fed. Prac. & Proc.

a onsaiinensinctuniiunvoticus 15

7C Charles Alan Wright et al., Fed. Prac. & Proc.

ao snes eneabinndibalabanenawiinchs 21

Miner et al., Twenty Years of Forest Service Land

Management Litigation, 112 J. Forestry 32

chk soescishde’caihcads-dandevonsndnactasiadenibersetindiensbanie 17,18

Public Natural Resource Law § 8:22 (2d ed.) ............ 17

1

INTERESTS OF AMICI CURIAE'

Amici Curiae are trade associations that represent

companies and families that help grow and produce

the nation’s food, wood products, and energy from for-

ests, farms, rangelands, and oil and gas fields. Imped-

ing the production of these resources is one of the

central objectives of environmental groups that liti-

gate under statutes such as the Endangered Species

Act, Clean Water Act, and National Environmental

Policy Act which govern production of natural re-

sources, particularly on federal land. Amici or their

members often are defendant-intervenors as of right

under Federal Rule of Civil Procedure (“Rule”) 24(a)(2)

in these lawsuits which frequently implicate amici’s

interests through specific projects or nationwide rules.

Amici are concerned that a decision by this

Court requiring Article III standing for intervention

of right under Rule 24(a)(2) will severely limit inter-

vention to defend against cases seeking to halt produc-

tion from the country’s forests, farms, rangelands,

and oil and gas fields. Amici agree with Respondent

that Article III standing is not a threshold requirement

for intervention when there is an existing case or

controversy. Amici write separately to highlight how

' The Petitioner and Respondent have consented to the filing

of this amici brief. Written consent has been obtained pursuant to

Rule 37.3(a) and is lodged with the Clerk. Pursuant to Rule 37.6,

the amici submitting this brief and their counsel hereby represent

that no party to this case nor their counsel authored this brief in

whole or in part, and that no person other than amici paid for or

made a monetary contribution toward the preparation and sub-

mission of this brief.

2

Petitioner’s theory is an illogical and unduly restrictive

interpretation of Rule 24(a)(2), particularly for

defendant-intervenors in the context of environmental

litigation over the use of natural resources involving

projects and nationwide rules. There are also pruden-

tial standing issues. Although several Courts of Ap-

peals have held that business interests have no

standing as plaintiffs within the zone of interest of

these statutes, they have found a right to intervene un-

der Rule 24(a)(2) because of “an interest relating to the

property or transaction that is the subject of the ac-

tion” that “may as a practical matter” be impaired or

impeded by the litigation.

The American Forest Resource Council (““AFRC”)

is a regional trade association whose purpose is to ad-

vocate for sustained yield timber harvests on public

timberlands throughout the West to enhance forest

health and resistance to fire, insects, and disease.

AFRC promotes active management to attain produc-

tive public forests, protect adjoining private forests,

and assure community stability. It works to improve

federal and state laws, regulations, policies and deci-

sions regarding access to and management of public

forest lands and protection of all forest lands. AFRC

represents over 50 forest product businesses and forest

landowners throughout the West. Many of AFRC’s

members have their operations in communities adja-

cent to federal lands, and the management of these

lands ultimately dictates not only the viability of their

businesses, but also the economic health of the commu-

nities themselves.

3

AFRC and its members have been defendant-in-

tervenors in nearly a hundred cases involving projects

and regulations that threatened impairment of their

interests in timber contracts, forest health, federal

timber supply, and protection of their adjoining private

forest land. An Article III standing requirement for in-

tervention of right would significantly limit AFRC’s

ability to intervene as a defendant to protect these in-

terests. AFRC’s predecessors were members of the

Northwest Forest Resource Council, the petitioner in

one of the first cases to seek this Court’s determination

of the question now presented. Northwest Forest Re-

source Council v. Portland Audubon Soc’y, Petition No.

88-1751, 1989 WL 1174212 (1989).

The American Farm Bureau Federation (“AFBF”)

is a voluntary general] farm organization with member

state Farm Bureau organizations in all 50 states and

Puerto Rico. As a grassroots organization, AFBF seeks

to enhance and strengthen the lives of rural Americans

and to build strong, prosperous agricultural communi-

ties. AFBF’s members are farm and ranch families,

who grow and raise every type of agricultural product

in the nation, on private and federal lands. Both AFBF

and its individual members have been directly affected

by the interpretation of various environmental laws, in

particular the Endangered Species Act and the Clean

Water Act. Individually, AFBF’s farm and ranch family

members have intervened as of right under Rule

24(a)(2) in cases as defendants to defend their own wa-

ter rights, federal grazing permits and use of private

land intermingled with federal lands. As an organiza-

tion, AFBF also intervenes as a defendant on behalf of

4

its members in cases challenging agency rules and

interpretation of statutes. AFBF opposes any erosion

of a defendant’s right to intervene under Rule 24(a)(2).

The Public Lands Council (“PLC”) is a national or-

ganization that represents ranchers who use public

lands and preserve the natural resources and unique

heritage of the West. PLC membership consists of state

and national cattle, sheep, and grasslands associa-

tions. PLC members hold longstanding permits to

graze on federal allotments and use roads across fed-

eral land to manage their private rangeland and

vested water rights. PLC ranching families also own

millions of acres of range and forest land. Litigation to

halt public lands grazing and range improvements has

proliferated during the last decade as have large fires

on public rangeland that spread to private land. PLC

and its members have been active as intervenors of

right to defend against litigation challenging grazing

and range management and do not support an inter-

pretation of Rule 24(a)(2) that would require Article III

standing for defendant-intervenors.

The National Cattlemen’s Beef Association

(“NCBA”) is the national trade association represent-

ing the entire cattle industry. NCBA is an advocate for

the economic, political, policy, and social interests of

the United States cattle business. Many NCBA mem-

bers own water rights, hold federal grazing permits, or

own rangeland and forests intermingled with federal

land and have intervened as of right to defend cases

challenging these interests.

5

The International Association of Geophysical

Contractors (““IAGC”) is the global trade association

representing all segments of the geophysical industry

for both land and marine operations, essential to dis-

covering and delivering the world’s energy resources

including oil and gas. [AGC strongly supports an inter-

pretation of intervention of right under Rule 24(a)(2)

that provides a right to defend a lawsuit that has the

practical effect of attacking a contract, permit, or lease

for energy production even though the contractor, per-

mittee, or lessee would not technically have Article II

standing if they were a plaintiff in the suit.

— ¢

SUMMARY OF THE ARGUMENT

Petitioner Town of Chester makes the oversimpli-

fied, narrow, and unsupported contention that the only

person that can ever appear in federal court as an in-

tervenor of right under Fed. R. Civ. P. 24(a) is a person

with Article III standing. The Town of Chester’s inter-

pretation of Rule 24 is not supported by the plain lan-

guage of the Rule which provides a right to intervene

if a person has “an interest relating to the property or

transaction that is subject of the action” that “may as

a practical matter” be impaired or impeded by the liti-

gation. Rule 24(a)(2) (emphasis added). Petitioner ig-

nores the broad range of interests that may suffice for

a party to intervene as a defendant. Its simplistic view,

if adopted, would endanger the ability of amici and

others to defend their rights against plaintiffs aiming

to extinguish those rights. The negative effects would

6

spread from amici to their employees, contractors, and

surrounding communities.

Rule 24(aX2) does not require a person to demon-

strate, as does Article III, an actual or imminent injury

from the challenged action because it is the outcome of

the litigation a person seeks to join that may or may

not impair the interest sought to be protected by inter-

vention of right. Rule 24(a)(2) applies to litigation that

has already been initiated and for which there is al-

ready a case or controversy. Neither the Constitution

nor the Rule support a holding that an intervenor to

an existing case must demonstrate Article III] stand-

ing.

Petitioner entirely ignores the basic principle that

a defendant in a lawsuit is not required to have stand-

ing to be sued. Amici are often intervenors of right as

defendants in cases under environmental statutes that

are filed against the federal government related to fed-

eral timber contracts, grazing permits, oil and gas

leases, or intermingled private land in which amici

have an interest. Amici also often intervene as of right

as defendants in cases where broadly applicable envi-

ronmental rules are challenged that affect amici’s in-

terests. The narrow interpretation of Rule 24(a)(2)

urged by Petitioner would exclude a person from exer-

cising a right to become a defendant-intervenor under

Rule 24(a)(2) when a plaintiff files a suit challenging a

federal rule, contract, permit, or lease for the use of

federal natural resources. The interpretation will up-

end the commonly-held judicial interpretation of Rule

24(a)(2) that a person has a right to intervene to defend

7

a contract, permit, lease or a rulemaking affecting

amici’s regulated interests under a wide variety of

environmental statutes such as the National Environ-

mental Policy Act, even if the proposed defendant-

intervenor may not have standing if it sought to be a

plaintiff.

ARGUMENT

A. The Requirement of Article III Standing for

a Plaintiff to Sue in Federal Court Does Not

Apply to a Defendant That Appears in Fed-

eral Court to Defend the Suit.’

For Article III standing a plaintiff must demon-

strate an (1) “injury in fact,” that is (2) “fairly tracea-

ble” to defendant’s actions, and (3) the injury will likely

be redressed by a favorable decision. Lujan v. Defend-

ers of Wildlife, 504 U.S. 555, 560-61 (1992). These

threshold requirements to initiate a lawsuit simply do

not apply to a defendant who becomes a party to the

case through the complaint. Although a defendant does

not have Article III standing, the defendant is entitled

* Amici are trade associations that commonly move to inter-

vene on behalf of their members who often cannot afford to engage

in litigation individually. An association has standing to sue on

behalf of its members when its members would otherwise have

standing to sue in their own right, the interests at stake are ger-

mane to the organization’s purpose, and neither the claim as-

serted nor the relief requested requires the participation of

individual members in the lawsuit. Friends of the Earth, Inc. v.

Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 181 (2000) (citing Hunt v.

Wash. State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977)).

8

to file motions, engage in discovery, and participate in

oral argument just like the plaintiff.

Litigation involving environmental statutes often

involves federal agency rules or decisions to permit

livestock grazing, harvest timber, or explore and pro-

duce oil, gas, and minerals. A private party seeking to

defend a particular lawsuit brought under environ-

mental statutes supporting agency action will never

have an “injury in fact” for Article III standing but

could have an interest relating to the property or

transaction subject to the lawsuit that may be im-

paired and which is not adequately represented

providing the right to intervene under Rule 24(a)(2).

Amici’s interests are often “interests in property” and

therefore “the most elementary type of right that Rule

24(a) is designed to protect.” 7C Charles Alan Wright

et al., Fed. Prac. & Proc. Civ., § 1908.1 (3d ed.). The cur-

rent rule poses a simple and direct question: “will the

disposition of the action impair as a practical matter

the absentee’s ability to protect an interest in the prop-

erty or transaction upon which the suit is based?” Jd.

§ 1907. Petitioner’s unduly narrow interpretation of

the Rule is not consistent with this purpose.

The issue of what qualifies as a sufficient “inter-

est” under Rule 24(a)(2) should not be governed by a

An association may intervene on behalf of its members so long as

it shows “(1) members have a legally protectable interest suffi-

cient for intervention; (2) the defense of the [decision is} germane

to the associations’ purposes; and (3) individual [members] are

not necessary participants in the suit.” Sw. Ctr. for Biological Di-

versity v. Berg, 268 F.3d 810, 822 n.3 (9th Cir. 2001).

9

bright-line Article III standing requirement. The Advi-

sory Committee for the 1966 amendments explained

that the amendments were designed in part to address

the unduly restrictive view that intervention of right

was limited to specific disposition of property such as

a fund. The Committee noted the greater flexibility

under amended Rule 24(a)(2) and that “if an absentee

would be substantially affected in a practical sense by

the determination made in an action, he should, as a

general rule be entitled to intervene and his right to do

so should not depend on whether there is a fund to be

distributed or otherwise disposed of.” Fed. R. Civ. P. 24

advisory committee’s notes (1966) (Amendment), 28

U.S.C. App. at 822. This Court cited the Advisory Com-

mittee explanation in its first case applying Rule

24(a)(2) and concluded that “some elasticity was in-

jected” by the amendment and the question was to de-

termine how much in a particular case. Cascade Nat.

Gas Corp. v. El Paso Nat. Gas Co., 386 U.S. 129, 134

(1967).

In San Juan Cty., Utah v. United States, 503 F.3d

1163 (10th Cir. 2007) (en banc), the en banc Tenth Cir-

cuit also interpreted the interest inquiry as “intended

to capture the circumstances in which the practical ef-

fect on the prospective intervenor justifies its partici-

pation in the litigation. Those factors are not rigid,

technical requirements.” Jd. at 1195. The court held

that environmental groups had a protectable interest

in the County’s quiet title action against the federal

government regarding the use of a road entitling it to

intervene as of right because if the County prevailed,

10

additional traffic might flow through Canyonlands Na-

tional Park. The en banc court noted that if the

County’s claim was rejected, then the litigation would

not injure the interests of the applicants for interven-

tion. Jd. at 1200. But the court found “this possibility

is irrelevant. Otherwise, every application to intervene

on the side of one of the parties would be rejected on

the ground that the aligned party might win (and the

applicant’s interest would hence not be injured). The

purpose of intervention is to increase the likelihood of

that victory.” Jd. Similarly, amici often seek to inter-

vene to increase the likelihood that their interests will

be protected even though they do not necessarily meet

the concrete, imminent injury requirement for Article

III standing.

Petitioner Town of Chester’s position that a right

to intervene must always be supported by Article III

standing would upend long-standing intervention law

in environmental cases. A few examples are illustra-

tive.

First, consider a farmer who has a water right

to take water from a creek on federal land that is

inhabited by fish listed as endangered under the En-

dangered Species Act (“ESA”). 16 U.S.C. §§ 1531-44.

The Forest Service is sued by an environmental group

under the ESA arguing that the Forest Service is

compelled to conduct Section 7 consultation with the

National Marine Fisheries Service over whether the

water withdrawal by the farmer will harm the endan-

gered fish, jeopardize the species, or cause destruction

or adverse modification of critical habitat. 16 U.S.C.

11

§ 1536. Although the farmer may not have an Article

III injury, the farmer has an interest in the water right

that may be impaired if plaintiffs prevail and a lengthy

ESA consultation process ensues imposing conditions

to benefit the fish. See Western Watersheds Project v.

Matejko, 468 F.3d 1099 (9th Cir. 2006) (case seeking to

compel consultation under the ESA for a water right).

Second, a case is filed against the Bureau of Land

Management challenging a timber sale under the Na-

tional Environmental Policy Act (“NEPA”), 42 U.S.C.

§§ 4321 et seq. and the Federal Land Policy and Man-

agement Act. 43 U.S.C. §§ 302 et seg. The purchaser of

the timber sale does not have Article II] standing be-

cause the company actually benefits, rather than is in-

jured, by the harvest of its timber sale contract.

However, if plaintiff prevails, the purchaser’s interest

in timber harvest will be impaired and it should have

a right to intervene to defend its interest. See Cascadia

Wildlands v. Bureau of Land Mgmt., No. 6:12-CV-

00095-AA, 2012 WL 6738275 (D. Or. Dec. 21, 2012).

Third, a rancher has a permit to run cattle on a

Forest Service grazing allotment. A suit is filed by an

environmental group arguing that the Forest Service

needs to meet specific state water quality standards

for each grazing allotment under the Clean Water Act

(“CWA”) before the cattle are allowed on the range for

the upcoming grazing season. The rancher does not

have Article III standing in the pending case because

she is not raising the claim under the CWA and will

not be injured if she can graze the number of cattle

permitted for the season. However, her interest in

12

grazing the cattle will be impaired if plaintiff prevails;

thus the rancher satisfies the interest and impairment

prongs for intervention under Rule 24(a)(2). See, e.g.,

Oregon Wild v. U.S. Forest Serv., 193 F.Supp.3d 1156,

1169-71 (D. Or. 2016). Similarly, trade associations

representing farmers and ranchers should be able

to intervene as of right in defending a suit by

environmental groups challenging an EPA amend-

ment to relax nationwide regulations under the Clean

Water Act which would affect interests in their farms

and ranches even though the associations may not be

“injured” under Article III by relaxation of the regula-

tions.

Finally, a private landowner would benefit from a

road improvement and fuel reduction project in a dying

stand of timber on adjoining national forest land. The

project would allow easier access to her land, provide a

more rapid escape route in the event of a fire, and the

removal of the dying timber on the national forest

would reduce the risk that insects or wildfire would

spread from the national forest onto her healthy,

thinned forest. A lawsuit is filed claiming that the For-

est Service did not survey for certain rare species on

the national forest as required by the National Forest

Management Act (““NFMA”). 16 U.S.C. §§ 1604-12. The

landowner has no Article III injury resulting from the

lack of species surveys under NFMA, but has an inter-

est in maintaining the health of the neighboring na-

tional forest to protect her private land which will be

impaired if plaintiff halts the fuel reduction project.

See 16 U.S.C. § 1611(b) (“Nothing in subsection (a) of

13

this section shall prohibit the Secretary from salvage

or sanitation harvesting of timber stands which are

substantially damaged by fire, windthrow, or other ca-

tastrophe, or which are in imminent danger from in-

sect or disease attack.”).

Requiring proposed defendant-intervenors to

demonstrate Article III standing to intervene as of

right under Rule 24(a)(2) is not required by the plain

language of the Rule. This is especially true for an in-

dividual or association with members with legitimate

interests relating to the subject of the lawsuit that

seeks to intervene as a defendant to prevent impair-

ment of that interest. The Court should decline to

impose a one-size-fits-all Article III standing require-

ment for all proposed intervenors under Rule 24.

B. Courts Have Rejected Unfounded Hurdles

to Intervention as a Defendant.

In resolving the issue presented about whether

Article III standing is required for intervention of

right under Rule 24(a)(2), amici urge the Court to

avoid imposing a new groundless threshold for a per-

son to intervene as a defendant. A defendant has a fun-

damentally different role in litigation and by which it

becomes a party to a lawsuit. To bring suit, a plaintiff

must have Article III standing and prudential stand-

ing under the statute that is the basis for the claim for

relief. In contrast, standing is a concept that does not

apply to a defendant unless the defendant raises a new

claim. A defendant is commonly brought into the case

14

based on federal court jurisdiction through diversity of

citizenship and the amount in controversy (28 U.S.C.

§ 1332(a)) or the presence of a federal question. Jd.

§ 1331. Federal question jurisdiction is commonly cited

by plaintiffs for suits under environmental statutes

such as NEPA, the ESA, and the CWA. A plaintiff-in-

tervenor must file a complaint in intervention to sup-

port its motion while a defendant-intervenor files an

answer in intervention. Rule 24(c) (“The motion must

... be accompanied by a pleading that sets out the

claim or defense for which intervention is sought.”). A

plaintiff often sues under an environmental statute

through the Administrative Procedure Act (“APA”),

where it must demonstrate that it is “adversely af-

fected or aggrieved by agency action within the mean-

ing of a relevant statute,” 5 “S.C. § 702; Lujan v.

National Wildlife Federation, 497 U.S. 871, 882-83

(1990). In contrast, the defendant-intervenor is not ag-

grieved by the agency action but has an interest bene-

fited by the action.

The issue of a jurisdictional requirement for per-

missive intervention under Rule 24(b) is instructive in

assessing whether Article III standing should be re-

quired under Rule 24(a). In the context of permissive

intervention, courts formerly held that an independent

basis for jurisdiction was required. For example, the

Ninth Circuit long held that permissive intervention

“requires (1) an independent ground for jurisdiction;

(2) a timely motion; and (3) a common question of law

and fact between the movant’s claim or defense and

the main action.” Beckman Indus., Inc. v. Int'l Ins. Co.,

15

966 F.2d 470, 473 (9th Cir. 1992). However, nearly 20

years later, the court clarified that the independent

ground for jurisdiction does not apply to proposed in-

tervenors, such as a defendant-intervenor in federal-

question cases where the proposed intervenor is not

raising new claims. Freedom from Religion Founda-

tion, Inc. v. Geisler, 644 F.3d 836, 844 (9th Cir. 2011);

see 7C Charles Alan Wright et al., § 1917 (3d ed.) (“In

federal-question cases there should be no problem of

jurisdiction with regard to an intervening defendant

nor is there any problem when one seeking to inter-

vene as a plaintiff relies on the same federal statute as

does the original plaintiff.”) (emphasis added).

Another example involving a defendant-interve-

nor formerly being subjected to an intervention re-

quirement that goes beyond the plain language of Rule

24(a)(2) was the “none but the federal defendant rule”

imposed by the Ninth Circuit. Wilderness Society v.

United States Forest Service, 630 F.3d 1173 (9th Cir.

2011) (en banc). In Wilderness Society, the court ad-

dressed whether persons seeking to intervene as de-

fendants in a NEPA case were prohibited from

intervening as of right under the theory that NEPA is

a procedural statute that only binds the federal gov-

ernment so that a private party could never have a

right to intervene in a NEPA case. Jd. at 1177. The en

banc panel rejected the argument that the federal

defendant rule precluded intervention of right in

NEPA cases. The court explained that it was joining its

sister circuits that also held private parties could be

intervenor-defendants in a NEPA case. WildEarth

16

Guardians v. U.S. Forest Serv., 573 F.3d 992 (10th Cir.

2009); Kleissler v. U.S. Forest Serv., 157 F.3d 964 (3rd

Cir. 1998); Sierra Club v. Espy, 18 F.3d 1202 (5th Cir.

1994); Wilderness Soc’y v. Morton, 463 F.2d 1261 (D.C.

Cir. 1972) (per curiam). The Third Circuit in Kleissler

explained that “(t]he reality is that NEPA cases fre-

quently pit private, state, and federal interests against

each other. Rigid rules in such cases contravene a ma-

jor premise of intervention — the protection of third

parties affected by pending litigation.” Kleissler, 157

F.3d at 971. Intervention jurisprudence has previously

recognized unsupported roadblocks to intervene as a

defendant and this Court should reject imposing Arti-

cle III standing as yet another unsupported new

threshold for intervention not found in the plain lan-

guage of Rule 24(a)(2).

C. If Article III Standing Is Required for Inter-

vention Under Rule 24(a)(2), Then Pruden-

tial Standing Would Also Be Required and

Could Eliminate Amici’s Right to Intervene

in Cases Involving NEPA and Many “Envi-

ronmental” Statutes.

The question of standing is not limited to Article

III and “involves both constitutional limitations on fed-

eral-court jurisdiction and prudential limits on its ex-

ercise.” Warth v. Seldin, 422 U.S. 490, 498 (1975)

(citation omitted). Prudential standing addresses the

“zone of interests” under the particular statutes com-

prising the claims in the complaint. See Nat'l Credit

Union Admin. v. First Nat. Bank & Trust Co., 522 U.S.

17

479, 503-04 (1998). Prudential standing is of particular

concern to amici if it also becomes a requirement to in-

tervene as of right as a defendant. See Public Natural

Resource Law § 8:22 (2d ed.) (“Economic and develop-

mental interests face perhaps the most difficulty in

meeting the zone of interest test in public natural re-

source litigation, at least when the statutes at issue

are viewed as environmental and natural resource pro-

tection measures.”).

If this Court requires Article III standing for in-

tervention, it implies that prudential standing should

also be required. A prudential standing requirement

would eliminate amici’s right to intervene in the

multitude of NEPA cases designed to halt manage-

ment of federal lands involving livestock grazing, tim-

ber sales, and oil and gas leases. See Business as

Usual? Analyzing the Development of Environmental

Standing Doctrine Since 1976, 5 Harv. L. & Pol’y Rev.

289, 291 (2011) (“business cases challenging NEPA rul-

ings to injuries to the business’ economic interests are

often dismissed under the zone-of-interest test.”).

Many of the projects being challenged involve forest

health projects to avoid the spread of insects, disease,

and wildfire which can harm the quality of water used

by the ranchers and farmers downstream of the na-

tional forests. A prudential standing requirement for

intervention of right is of great concern to amici in

cases brought under NEPA.

First, NEPA is the statute of choice for environ-

mental litigants challenging management of federal

lands including the national forests. See Miner et al.,

18

Twenty Years of Forest Service Land Management Liti-

gation, 112 J. Forestry 32 (2014). Over 70% of the cases

involving national forest management involved NEPA

claims. Id. at 37.

Second, many courts have held that economic in-

terests are not within the zone of interests of NEPA

and that “the purpose of NEPA is to protect the envi-

ronment, not the economic interests of those adversely

affected by agency decisions.” Nevada Land Action

Ass’n v. United States Forest Service, 8 F.3d 713, 716

(9th Cir. 1993) (holding that an association comprised

of ranchers that grazed livestock on Forest Service

lands did not have standing to challenge a forest plan

for failure to comp!y with NEPA); Ashley Creek Phos-

phate Co. v. Norton, 420 F.3d 934, 937 (9th Cir. 2005);

see Lower Arkansas Valley Water Conservancy District

v. United States, 578 F.Supp.2d 1315, 1338 (D. Colo.

2008) (noting that “it is well established that purely

economic injuries do not fall within the ‘zone of inter-

est’ protected by NEPA.”); see also County of St. Louis

v. Thomas, 967 F. Supp. 370, 377 (D. Minn. 1997) (deny-

ing standing to plaintiffs to raise NEPA claim for eco-

nomic losses); Gunpowder Riverkeeper v. FE.R.C., 807

F.3d 267, 274 (D.C. Cir. 2015).

* The court in Gunpowder also held that economic harm

“does not fall within the zone of interests that Congress sought to

protect in enacting the CWA [Clean Water Act}.” Gunpowder, 807

F.3d at 275 (internal quotation marks omitted) (quoting BP Explora-

tion & Oil, Inc. v. EPA, 66 F.3d 784, 803 (6th Cir. 1995)). Thus,

amici would have no right to intervene as defendants in litigation

19

Third, as explained above, NEPA cases challenge

agency actions that if halted will impair amici’s inter-

ests in permits, leases, contracts, and adjoining private

land in which courts have granted intervention of right

under Rule 24(a)(2). This Court has emphasized that

NFPA is a procedural statute that does not dictate sub-

stantive environmental results. Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 350 (1989).

However, in assessing prudential standing, courts have

incorrectly viewed NEPA as a substantive environ-

mental statute that prohibits standing for a person

with an economic interest. This leads to the unsup-

ported legal result that a person with an economic in-

terest that has exercised the right to engage in agency

NEPA procedures during the public comment period,

is precluded from later advancing in court its concern

as a plaintiff over inadequate NEPA procedures. In

contrast, environmental groups have access to both the

administrative and judicial forums. This creates an

inequitable dichotomy under NEPA and other environ-

mental laws where there is equal access to the admin-

istrative process but not equal access to the courts. So,

if this Court holds that Rule 24(a)(2) requires Article

III and prudential standing, amici may no longer have

a right to intervene as defendants in these cases even

if their contract or lease is the subject of the NEPA

claim. The outcome of NEPA cases greatly influence

the production of natural resources from public lands.

See Cascadia Wildlands v. U.S. Forest Serv., 937

challenging a CWA rule benefiting their members’ farms and for-

ests.

20

F.Supp.2d 1271 (D. Or. 2013) (halting multiple timber

sale contracts from the Willamette National Forest in

Oregon representing the entire annual timber supply

of the Forest). In the context of environmental statutes,

an Article III standing requirement could eliminate

the right to intervene of businesses which often have

the most direct stake in the outcome of litigation. To

the extent that the litigation involves injunctive relief

requiring a balance of the equities, economic interests

will be excluded from the balance of harm.

D. Article III Standing for Intervention Under

Rule 24(a) Is Not Necessary for Courts to

Control the Scope of Litigation and Manage

Cases with Multiple Parties.

There is no merit to Respondent’s argument that

without the Article IIT limits on Rule 24(a)(2) interven-

tion, the judicial system will be significantly burdened

by intervenors. Brief for Petitioner at 45-46. First, Rule

24(a) sets forth requirements of (1) timeliness, (2) an

interest relating to the property or transaction, (3) that

as a practical matter will be impaired or impeded, and

(4) is not adequately represented by existing parties.

These are sufficient threshold requirements that have

precluded, and will continue to preclude, intervention

of right.

Second, this Court has suggested that reasonable

limits may be imposed on an intervenor of right to con-

trol the litigation in the same manner as an original

21

party. See Stringfellow v. Concerned Neighbors in Ac-

tion, 480 U.S. 370, 383 (1987) (Brennan, J., concurring);

Fed. R. Civ. P. 24 advisory committee’s note (1966)

(Amendment), 28 U.S.C. App. at 823 (“An intervention

of right under the amended rule [24(a)] may be subject

to appropriate conditions or restrictions responsive

among other things to the requirements of efficient

conduct of proceedings.”); 7C Charles Alan Wright et

al., Fed. Prac. & Proc. Civ., § 1920 (3d ed.). For example,

courts often require multiple intervenors to coordinate

briefing or share the fixed oral argument time with

federal defendant.

Finally, the United States acknowledges that a

bright-line rule of Article III standing for intervention

is not appropriate. It may apply in some instances

where a proposed intervenor attempts to expand the

litigation to inject a new claim, seek additional dam-

ages, or seek injunctive relief broader than the original

plaintiff. Brief of the United States as Amicus Curiae

Supporting the Petitioner at 16. It makes no sense to

require a separate showing of Article III standing

when the proposed intervenor pursues the same claims

and relief as a party whose standing is undisputed.

E. The United States Is Not a Neutral Party

Regarding Whether Article [III Standing Is

Required for Intervention Under Rule 24(a).

There are ulterior motives to the United States’

support for an Article III intervention requirement.

The government is the most frequent defendant

22

involving environmental lawsuits under federal

question jurisdiction where private parties seek to

intervene as defendants. The United States supports a

narrow scope of intervention to further its interests in

having complete control of the defense and in advanc-

ing only its interpretation of the federal statutes. The

government is also the party that brings enforcement

actions under environmental statutes and seeks to be

the only party to a case interpreting the statutory en-

forcement provisions. Rule 24(a)(2) provides that if a

court finds that an existing party will adequately rep-

resent a proposed intervenor’s interest, there is no

right to intervene. In many cases, courts hold that if

the federal government is already a defendant, there

is a presumption of adequacy of representation. Ara-

kaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)

(the presumption of adequate representation that

arises when the government is acting on behalf of a

constituency it represents must be overcome by a “very

compelling showing”).* The existing framework of the

Rule establishes a hurdle to a proposed defendant-

intervenor to intervene as of right when the United

States is a defendant. Therefore, there is not a need to

impose an Article III standing requirement to protect

* The growth of the government presumption in the Courts

of Appeals appears to have little basis in this Court’s jurispru-

dence. Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538

n.10 (1972), held the burden is “minimal.” Ninth Circuit caselaw,

including Arakaki, developed from Com. of Pa. v. Rizzo, 530 F.2d

501, 505 (3rd Cir. 1976), which relied on dictum from Sam Fox

Publishing Co. v. United States, 366 U.S. 683, 689 (1961), decided

before the 1966 amendments to Rule 24.

23

the desire of the United States to control the defense

of the litigation.

— — -o-—

CONCLUSION

The Court should reject the Town of Chester’s in-

terpretation of Rule 24(a)(2) that requires any person

moving to intervene as of right to have Article III

standing. A more nuanced interpretation of Rule

24(a\(2) is called for, particularly when it involves a

person moving to intervene as of right as a defendant

who cannot demonstrate standing, but who satisfies

the plain language of the Rule and claims an interest

relating to the property or transaction that may as a

practical matter be impaired or impeded by the out-

come of the litigation.

Respectfully submitted,

Scott HORNGREN

Counsel of Record

CAROLINE LOBDELL

WESTERN RESOURCES

LEGAL CENTER

9220 SW Barbur Blvd.

Suite 327

Portland, Oregon 97219

(503) 768-8500

shorngren@wrlegal.org

clobdell@wrlegal.org

Counsel for Amici Curiae

April 2017