Sierra Club v. Espy , 18 F.3d 1202 ( 1994 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 93-5150
Summary Calendar
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SIERRA CLUB, et al.,
Plaintiffs-Appellees,
VERSUS
MIKE ESPY,
in His Official Capacity
as Secretary of Agriculture, et al.,
Defendants,
TEXAS FORESTRY ASSOCIATION
and
SOUTHERN TIMBER PURCHASERS COUNCIL,
Movants-Appellants.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________
March 31, 1994
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Texas Forestry Association ("TFA") and the Southern Timber
Purchasers Council ("STPC"), two trade associations representing
most of the purchasers of timber from the Texas national forests,
appeal the district court's denial of their motion to intervene in
this lawsuit between the Sierra Club and the Secretary of Agricul-
ture. Concluding that movants satisfied the requirements of FED.
R. CIV. P. 24(a) for intervention as a matter of right, we reverse.
I.
Three environmentalist groups initiated a lawsuit in 1985 to
challenge certain United States Forest Service practices for
managing the four national forests in Texas. The initial complaint
alleged that the Forest Service's program for controlling the
southern pine beetle was in violation of the Wilderness Act,
16 U.S.C. §§ 1131-1136, the Endangered Species Act ("ESA"),
16 U.S.C. §§ 1531-1543, and the National Environmental Policy Act
("NEPA"), 42 U.S.C. §§ 4321-4361. The district court denied the
requested relief but issued a preliminary injunction requiring the
Forest Service to adhere to its own prescribed policies for
controlling the pine beetle. See Sierra Club v. Block,
614 F. Supp. 134, 135, 139-41 (E.D. Tex. 1985).
In 1987, the Forest Service issued the "Texas Forest Plan"
(the "Plan") based upon an environmental impact statement ("EIS").
The plaintiffs amended their complaints to allege that the Plan
violated the ESA, NEPA, and the National Forest Management Act
("NFMA"), 16 U.S.C. § 1600 et seq., in addition to their claims
concerning the pine beetle. Because the plaintiffs' administrative
appeals of the Plan were pending, the district court dismissed the
Plan-related claims. See Sierra Club v. Lyng, 694 F. Supp. 1256,
1259 (E.D. Tex. 1988). The court entered a permanent injunction,
however, with regard to ESA violations that were not related to the
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Plan. See Sierra Club v. Lyng, 694 F. Supp. 1260 (E.D. Tex. 1988).
This court affirmed the finding of ESA violations but vacated
portions of the injunction to give the Forest Service the opportu-
nity to formulate its own plan to comply with the ESA. See Sierra
Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991).
In 1990, one plaintiff, the Texas Committee on Natural
Resources ("TCONR"), filed a third amended complaint to address
pine beetle issues. In 1992, TCONR filed its fourth amended
complaint, which included Plan-related claims, challenging the Plan
and the Plan EIS. The magistrate judge recommended that the
government's motion for summary judgment be granted and the
plaintiffs' NFMA and NEPA claims be dismissed. On January 6, 1993,
TCONR filed its objections to the magistrate judge's report and
moved for an "urgent injunction" barring the Forest Service from
proceeding with timber sales in various parts of the Texas national
forests.
On May 12, 1993, the district court granted TCONR's motion,
issuing a preliminary injunction against even-aged logging1 and
1
Even-aged management is one of two systems of forest management
defined in a Forest Service regulation, 36 C.F.R. § 219.3 (1992). Even-aged
management creates stands where trees of essentially the same age class grow
together. Id. Even-aged stands can be produced naturally (e.g., by fires or
insect infestations) or by timber harvesting methods that remove most of the
stand in one cutting (e.g., clearcut, shelterwood, or seed tree cutting
methods). Id. Although most of the tree cover is temporarily removed under
the even-aged cutting method, NFMA allows timber harvesting only when the
stand can be adequately restocked within five years after harvest. 16 U.S.C.
§ 1604(g)(3)(E)(ii); 36 C.F.R. § 219.27(c)(3).
Uneven-aged management, on the other hand, through single-tree and group
selection, results in the growth of trees through a range of diameter or age
classes, maintaining continuous high-forest cover. 36 C.F.R. § 219.3. Even-
aged management mimics natural ecosystems, whereas widespread uneven-aged
management in natural ecosystems has been called "ecologically unsound."
Resources Ltd., Inc. v. Robertson, 789 F. Supp. 1529, 1539 (D. Mont. 1991),
aff'd in part, rev'd in part, 8 F.3d 1394 (9th Cir. 1993).
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rejecting the magistrate judge's conclusion that the Forest Service
had complied with NFMA and NEPA on these timber sales. See Sierra
Club v. Espy, 822 F. Supp. 356, 370 (E.D. Tex. 1993). On June 24,
1993, the Forest Service issued a letter advising prospective
timber purchasers that, as a result of the injunction, it would
refrain from offering not only the planned timber sales challenged
by the plaintiffs but also any timber sales with even-aged
regeneration cuts. This letter triggered TFA and STPC's motion to
intervene on July 9, 1993, which was denied.
II.
Movants argue that the district court erred in refusing to
allow their intervention as a matter of right under FED. R. CIV. P.
24(a). A party seeking to intervene as of right must satisfy four
requirements: (1) The application must be timely; (2) the
applicant must have an interest relating to the property or
transaction that is the subject of the action; (3) the applicant
must be so situated that the disposition of the action may, as a
practical matter, impair or impede its ability to protect its
interest; and (4) the applicant's interest must be inadequately
represented by the existing parties to the suit. New Orleans Pub.
Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th
Cir.) (en banc) (quoting International Tank Terminals, Ltd. v. M/V
Acadia Forest, 579 F.2d 964, 967 (5th Cir. 1978)), cert. denied,
469 U.S. 1019 (1984). If a party seeking to intervene fails to
meet any one of those requirements, it cannot intervene as a matter
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of right. Kneeland v. National Collegiate Athletic Ass'n, 806 F.2d
1285, 1287 (5th Cir.), cert. denied, 484 U.S. 817 (1987). TFA and
STPC's right to intervene is a legal issue that we review de novo.
Ceres Gulf v. Cooper, 957 F.2d 1199, 1202 (5th Cir. 1992).2
A.
Movants argue that their motion to intervene was timely.
Determining the timeliness of a motion to intervene entails
consideration of four factors: (1) The length of time during which
the would-be intervenor actually knew or reasonably should have
known of its interest in the case before it petitioned for leave to
intervene; (2) the extent of the prejudice that the existing
parties to the litigation may suffer as a result of the would-be
intervenor's failure to apply for intervention as soon as it knew
or reasonably should have known of its interest in the case;
(3) the extent of the prejudice that the would-be intervenor may
suffer if intervention is denied; and (4) the existence of unusual
circumstances militating either for or against a determination that
the application is timely. Stallworth v. Monsanto Co., 558 F.2d
257, 264-66 (5th Cir. 1977) (citations omitted).
The analysis is contextual; absolute measures of timeliness
should be ignored. Id. at 266 (citation omitted). The requirement
2
Although the timeliness of intervention is generally reviewed for
abuse of discretion, Jones v. Caddo Parish Sch. Bd., 735 F.2d 923, 926 (5th
Cir. 1984) (en banc), where the district court makes no finding regarding
timeliness, we review this factor de novo. Ceres Gulf, 957 F.2d at 1202 n.8.
We agree with the movants that League of United Latin Am. Citizens v.
Clements, 999 F.2d 831 (5th Cir. 1993) (en banc), cert. denied, 114 S. Ct. 878(1994), is inapposite. There the court denied intervention where the lack of
timeliness was obvious.
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of timeliness is not a tool of retribution to punish the tardy
would-be intervenor, but rather a guard against prejudicing the
original parties by the failure to apply sooner. McDonald v. E.J.
Lavino Co., 430 F.2d 1065, 1074 (5th Cir. 1970) (citation omitted).
Federal courts should allow intervention "where no one would be
hurt and greater justice could be attained." Id. (citation
omitted).
1.
The movants argue that the first factor supports intervention
because they promptly moved for intervention once their interest in
the case became apparent, i.e., after the preliminary injunction
was issued on May 12, 1993. The lawsuit, although pending for
eight years, did not raise the NFMA and NEPA claims with regard to
the Plan until the fourth amended complaint was filed in May 1992.
Even in 1992, movants argue, the TFA and STPC believed that their
interests would not be adversely affected, given the magistrate
judge's report recommending that the NFMA and NEPA claims be
dismissed.
Not until the district court granted the preliminary
injunction did the movants become aware that their interests in
timber sales were affected. TFA and STPC moved to intervene within
two months of the issuance of the preliminary injunction.
The plaintiffs contend that the movants should have become
aware in 1987 of any interest they had concerning timber sales
because the NFMA and NEPA claims were first raised in the second
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amended complaint. The district court indicated that it would
carry the NFMA and NEPA claims in January 1988, pending exhaustion
of administrative remedies. Furthermore, TFA participated as
amicus curiae in the 1989 appeal of the decision concerning even-
aged management under the ESA. Plaintiffs conclude that the NFMA
and NEPA claims have been present for six years and that the
movants' interest in these issues has remained unchanged during
that time.
Having reviewed the January 1988 district court opinion, we
conclude that the status of the NFMA and NEPA claims changed
dramatically over the course of the lawsuit. In its January 1988
opinion, the district court dismissed TCONR's claim relating to the
land and resource management plan. See Sierra Club v. Lyng,
694 F. Supp. 1256, 1259 (E.D. Tex. 1988). Furthermore, the
district court denied Sierra Club's motion to amend its complaint
to allege noncompliance with NFMA, pending exhaustion of
administrative remedies. Id. at 1260. Therefore, TFA and STPC had
reason to believe that their interests were not adversely affected
at that stage.
In Stallworth, 558 F.2d at 264, we rejected the notion that
the date on which the would-be intervenor became aware of the
pendency of the action should be used to determine whether it acted
promptly. Courts should discourage premature intervention that
wastes judicial resources. Id. at 265. A better gauge of
promptness is the speed with which the would-be intervenor acted
when it became aware that its interests would no longer be
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protected by the original parties. Id. at 264.
In this case, the movants legitimately believed that the
Forest Service would defend its timber sales and planning. When
the agency announced on June 24, 1993, that it would apply the
preliminary injunction to all timber sales (not merely the nine
sales challenged by the plaintiffs), movants became aware that the
Forest Service would not protect their interests. Therefore, we
conclude that the first factor )) the length of time during which
the would-be intervenor actually knew or reasonably should have
known of its interest in the case before it petitioned for leave to
intervene )) weighs in favor of the movants.
2.
The second factor )) the extent of prejudice to the existing
parties as a result of the applicant's delay in seeking
intervention )) also weighs in favor of TFA and STPC. Plaintiffs
argue that TFA and STPC's participation in the proceedings would
"severely protract the litigation." But prejudice must be measured
by the delay in seeking intervention, not the inconvenience to the
existing parties of allowing the intervenor to participate in the
litigation. Id. at 265. The movants sought intervention less than
three weeks after the Forest Service issued its June 24, 1993,
letter. We therefore conclude that no prejudice to the existing
parties resulted from the delay in seeking intervention.3
3
Moreover, as movants admit, no prejudice can come from renewed
discovery or pretrial proceedings, because an intervenor "must accept the
(continued...)
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3.
The third factor is the extent of the prejudice the would-be
intervenor would suffer if its petition for leave to intervene were
denied. Movants argue that the preliminary injunction
substantially reduced the acreage available for timber production
and foreclosed the agency from offering any more timber sales with
even-aged management regeneration cuts in the Texas national
forests. The movants' member companies purchase and process timber
offered from these forests and have property interests in existing
sales contracts.
Plaintiffs claim that TFA and STPC are not prejudiced by
denial of intervention because they already have intervened in the
Forest Service's appeal of the preliminary injunction, and through
that appeal movants could argue for their interpretation of NFMA
and NEPA. Furthermore, since the movants participated in the
development of the Forest Service's land management plan, they can
continue to influence the timber industry. Finally, plaintiffs
assert that no sales contracts are affected, and movants have
failed to show how reduction of acreage adversely affects their
interest.
The intervention in the appeal of the district court's
preliminary injunction cannot adequately substitute for
intervention at the district court level, as many more issues are
at stake in the district court than the single issue now on appeal.
(...continued)
proceedings as he finds them." In re Geisser, 554 F.2d 698, 705 n.6 (5th Cir.
1977). The intervenor has no right to relitigate issues already decided. Id.9
The claim that the movants' interests are adequately represented by
their participation in the development of the Forest Service's land
management ignores the legal rights associated with formal
intervention, namely the briefing of issues, presentation of
evidence, and ability to appeal.
Finally, it is obvious that the economic interests of the
movants are at stake. The movants have a financial interest in the
ability to use the less expensive even-aged harvesting methods, and
they have prospect of injury if the Forest Service cannot deliver
constant volumes of timber. Furthermore, the district court's
holding that NFMA bars even-aged management could injure movants'
member companies in other venues.
4.
The final factor in determining timeliness of the intervention
is the existence of unusual circumstances militating either for or
against a determination that the application is timely. We are
aware of no such specific circumstances pertinent to this case. In
summary, based upon the brief time that had elapsed between the
Forest Service's June 24, 1993, letter and the motion for
intervention, the remoteness of prejudice to the existing parties
resulting from this delay, and the likelihood of prejudice to the
movants if intervention were denied, we conclude that the motion to
intervene was timely.
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B.
The second requirement for intervention as a matter of right
under rule 24(a) is that the applicant have an "interest" in the
subject matter of the action. This interest must be "direct,
substantial, [and] legally protectable." Piambino v. Bailey,
610 F.2d 1306, 1321 (5th Cir.) (citations omitted), cert. denied,
449 U.S. 1011 (1980). Plaintiffs claim that the movants' interest
is too speculative and generalized to satisfy rule 24. We
disagree.
Movants represent the forest products industry, including the
major purchasers and processors of Texas national forest timber.
These member companies have legally protectable property interests
in existing timber contracts that are threatened by the potential
bar on even-aged management. Since "the `interest' test is
primarily a practical guide to disposing of lawsuits by involving
as many apparently concerned persons as is compatible with
efficiency and due process," Ceres Gulf, 957 F.2d at 1203 n.10
(citation omitted), we conclude that movants had an interest
sufficient to satisfy rule 24.
C.
The third requirement of rule 24(a) is that the applicant must
be so situated that the disposition of the action may, as a
practical matter, impair or impede his ability to protect his
interest. Plaintiffs argue that adverse stare decisis effects will
not supply the requisite disadvantage to satisfy this test. As we
11
have stated in Ceres Gulf, id. at 1204, however, an intervenor's
interest "is impaired by the stare decisis effect of the district
court's judgment." The issue of whether the NFMA bars even-aged
logging affects the movants and, because of the precedential effect
of the district court's decision, an adverse resolution of the
action would impair their ability to protect their interest.
D.
The final requirement for intervention as a matter of right is
that the applicant's interest must be inadequately represented by
the existing parties to the suit. The applicant has the burden of
demonstrating inadequate representation, but this burden is
"minimal." Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10
(1972). The applicant need only show that representation "may be"
inadequate. Id.Plaintiffs contend that the government adequately represents
the movants' interest because the interests are essentially
identical. We cannot agree with this position. The movants have
demonstrated, through the June 24, 1993, letter applying the
district court's preliminary injunction to all future timber sales,
that the government's representation of their interest is
inadequate. The government must represent the broad public
interest, not just the economic concerns of the timber industry.
Given the minimal burden on the movants to satisfy this
requirement, we conclude that the government's representation of
the intervenors' interest is inadequate.
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E.
Applying the four requirements of rule 24(a), we must conclude
that the movants were entitled to intervene as a matter of right.
Their motion was timely and indicated a legitimate interest in the
subject matter. Moreover, failure to allow intervention would
impair TFA and STPC's ability to protect their interest because of
the precedential effect of the district court's decisions. We also
agree with the movants that the government's representation of
their interest is inadequate.
III.
Because we conclude that the district court, in spite of its
diligent and evenhanded effort to manage this difficult and complex
case, erred in denying rule 24(a)(2) intervention, we need not
reach the issue of permissive intervention. The order denying
intervention is REVERSED.
Judge Garwood notes his dissent.
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