Kleissler v. United States Forest Service , 157 F.3d 964 ( 1998 )

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit
9-30-1998
Kleissler v. US Forest Ser
Precedential or Non-Precedential:
Docket 98-3137
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Filed September 30, 1998
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 98-3137
JAMES KLEISSLER; SUSAN CURRY; ARTHUR CLARK;
RODGER CLARKE; ELOISE GLENN; MICHAEL KAIZAR;
HEARTWOOD, INC.,
v.
UNITED STATES FOREST SERVICE; MICHAEL P.
DOMBECK, Chief Forester for the Eastern Region, United
States Forest Service; ROBERT T. JACOBS, Forester for
the Eastern Region - United States Forest Service; JOHN
PALMER, Forest Supervisor for the Allegheny National
Forest - United States Forest Service;
v.
RIDGWAY AREA SCHOOL DISTRICT; BRADFORD AREA
SCHOOL DISTRICT; KANE AREA SCHOOL DISTRICT;
JOHNSONBURG AREA SCHOOL DISTRICT; SMETHPORT
AREA SCHOOL DISTRICT; CHERRY GROVE TOWNSHIP;
HAMILTON TOWNSHIP; HAMLIN TOWNSHIP; HIGHLAND
TOWNSHIP; WETMORE TOWNSHIP; TOWNSHIP OF
JONES; BROOKVILLE WOOD PRODUCTS, INC.;
NORTHEAST HARDWOODS; RIDGWAY LUMBER
COMPANY; ALLEGHENY HARDWOOD UTILIZATION
GROUP, INC.,
Appellants
PAYNE FOREST PRODUCTS, INC.; SPILKA WOOD
PRODUCTS COMPANY,
Intervenor-Defendants
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 97-cv-02187)
Argued: June 10, 1998
Before: BECKER, Chief Judge, ALDISERT and WEIS,
Circuit Judges.
Filed: September 30, 1998
James E. Scheuermann, Esquire
(ARGUED)
David L. McClenahan, Esquire
William J. Labovitz, Esquire
Daniel P. Trocchio, Esquire
KIRKPATRICK & LOCKHART
1500 Oliver Building
Pittsburgh, PA 15222-2312
Attorneys for Appellants
William V. Luneburg, Esquire
(ARGUED)
3900 Forbes Avenue
Pittsburgh, PA 15260
Attorney for Appellees James
Kleissler; Susan Curry; Arthur Clark;
Rodger Clarke; Eloise Glenn; Michael
Kaizar; Heartwood, Inc.
Amy R. Hay, Esquire
Bonnie R. Schlueter, Esquire
Office of the United States Attorney
633 U.S. Post Office & Courthouse
Pittsburgh, PA 15219
Attorneys for Appellees United States
Forest Service; Michael P. Dombeck;
Robert T. Jacobs; John Palmer
2
OPINION OF THE COURT
WEIS, Circuit Judge,
The district court denied a request for intervention by
local governmental bodies and business concerns in
litigation brought by environmentalists to restrict logging
activities in a National Forest. We conclude that the
proposed intervenors established a threat to their interests
from the suit and a reasonable doubt whether the
government agency would adequately represent those
concerns. Accordingly, we reverse the district court's order
and remand for further proceedings.
Plaintiffs are six Pennsylvania and Ohio residents and an
Indiana organization committed to environmental
preservation. They filed suit against the United States
Forest Service ("Service") asserting that the agency had
violated statutory requirements in approving two projects
that permitted substantial tree cutting in the Allegheny
National Forest. Plaintiffs requested an injunction barring
implementation of the proposed measures, halting all
logging activity, and suspending or canceling contracts for
logging in the forest. In addition, plaintiffs sought a
declaration that approval of the projects was arbitrary,
capricious, and not in conformity with the law.
Through the National Forest Management Act of 1976,
Congress authorized the Secretary of Agriculture to develop
land and resource plans that are used as a guide to all
resource activities in a national forest, including timber
harvesting. See 16 U.S.C. S 1604. The process is described
in some depth in Ohio Forestry Association v. Sierra Club,
118 S. Ct. 1665 (1998) and need not be detailed here. The
statute also imposes procedural obligations on the
Secretary to ensure that environmental interests will be
considered in the plan.
In 1997, the Service, as the Secretary's designee,
approved the Minister Watershed Project and the South
Branch Willow Creek Project, both covering areas within
the Allegheny National Forest in Northwestern
3
Pennsylvania. The projects called for substantial tree
harvesting through "even-aged management." This process,
in general terms, contemplates clearing designated areas of
all trees, rather than focusing on individual trees within the
given tract, the latter being far more costly and time-
consuming for timber companies. See 36 C.F.R. S 219.3;
see also Sierra Club v. Espy, 38 F.3d 792, 795, 798-800
(5th Cir. 1994) (discussing the technique and Congressional
approval at some length). In launching the projects, the
Service concluded that they were consistent with the
resource plan and would not create a significant
environmental impact within the forest.
The plaintiffs' complaint alleges that the projects violate
the National Environmental Policy Act (NEPA), 42 U.S.C.
S 4332, because of the lack of an environmental impact
statement and, among other things, the failure to consider
more environmentally-protective alternatives. The complaint
also alleges several violations of the National Forest
Management Act, including an objection to even-aged
management and the "landscape corridor approach," which
endorses the even-aged timber-cutting philosophy.
A motion for leave to intervene was filed by a number of
area school districts located near the Allegheny National
Forest, including Ridgway, Bradford, Kane, Johnsonburg,
and Smethport. In addition, six townships--Cherry Grove,
Hamilton, Hamlin, Highland, Wetmore, and Jones--sought
intervention.
The school districts and municipalities asserted an
interest in the suit because they receive funds from receipts
of logging operations in the forest. By statute, the federal
government disburses twenty-five percent of the gross
amounts received from the forest to the Commonwealth of
Pennsylvania at the end of each fiscal year. 16 U.S.C.
S 500. In turn, the Commonwealth forwards these sums to
counties where the forest is situated, which then pass the
money on to local municipalities and school districts for the
benefit of public schools and roads. 72 Pa.C.S.A.
SS 3541-3543. During the ten years preceding the filing of
this suit, the federal government disbursed, on average, in
excess of $4 million per year to the Commonwealth.
4
Elimination of logging contracts would deprive the localities
of this resource.
Joining the motion for leave to intervene were Brookville
Wood Products, Inc., Northeast Hardwoods, Ridgway
Lumber Co., Payne Forest Products, Inc., Spilka Wood
Products Co., and Allegheny Hardwood Utilization Group,
Inc. Payne and Spilka have existing contracts to cut timber
as part of the Minister Watershed Project. Ridgway was the
successful bidder on a contract under the South Branch
Willow Creek Project, but the Service has withheld
awarding the contract pending the outcome of this
litigation. Brookville Wood Products and Northeast
Hardwoods are also lumber companies that generate most
of their income from contracts with the Service. Allegheny
Hardwood is a nonprofit corporation whose members hold
existing sales contracts with the Service and expect to bid
on future timber sales contracts that would be affected by
this litigation.
The district court reviewed the prerequisites for
intervention as set out in Federal Rule of Civil Procedure
24(a)(2) and denied the motion as to all applicants except
Payne and Spilka. In those two instances, the court
determined that intervention was justified because existing
contract rights would be threatened if plaintiffs prevailed.
The court observed that the other applicants had
interests of "an economic nature based on expectation."
Although those "interests are very important, the court is
compelled to conclude based on the case law that they are
not the type of protectable interests that justify intervention
as of right under Rule 24(a)(2)." The court also denied
permissive intervention under Rule 24(b)(2). All of the
unsuccessful applicants have appealed.
I.
During the pendency of this appeal, the district court
entered summary judgment for defendants on most claims
asserted by plaintiffs with respect to the two projects
because of the failure to exhaust administrative remedies.
The district court is presently considering whether claims
5
challenging the landscape corridor approach as a
management philosophy should suffer a similar fate.
Plaintiffs have secured a certification under Federal Rule
of Civil Procedure 54(b) and are appealing the adverse
district court ruling. Because that order and any future
adverse action on the remaining claim might be reversed by
this Court or the Supreme Court, the applicants' ability to
participate remains a viable issue. This appeal
consequently is not moot. Mausolf v. Babbitt, 85 F.3d 1295,
1297 (8th Cir. 1996); United States Postal Serv. v. Brennan,
579 F.2d 188, 190 n.1 (2d Cir. 1978).
II.
Federal Rule of Civil Procedure 24 provides in pertinent
part:
"(a) Intervention of Right. Upon timely application
anyone shall be permitted to intervene in an action . . .
(2) when the applicant claims an interest relating to
the property or transaction which is the subject of the
action and the applicant is so situated that the
disposition of the action may as a practical matter
impair or impede the applicant's ability to protect that
interest, unless the applicant's interest is adequately
represented by existing parties."
We have interpreted Rule 24(a)(2) to require proof of four
elements from the applicant seeking intervention as of
right: first, a timely application for leave to intervene;
second, a sufficient interest in the litigation; third, a threat
that the interest will be impaired or affected, as a practical
matter, by the disposition of the action; and fourth,
inadequate representation of the prospective intervenor's
interest by existing parties to the litigation. Mountain Top
Condo. Ass'n. v. Dave Stabbert Master Builder, Inc., 72 F.3d
361, 365-66 (3d Cir. 1995); Development Fin. Corp. v. Alpha
Hous. & Health Care, Inc., 54 F.3d 156, 161-62 (3d Cir.
1995); United States v. Alcan Alum., Inc., 25 F.3d 1174,
1181 (3d Cir. 1994); Brody v. Spang, 957 F.2d 1108, 1115
(3d Cir. 1992); Harris v. Pernsley, 820 F.2d 592, 596 (3d
Cir. 1987).
6
We will reverse a district court's determination on a
motion to intervene as of right if the court has abused its
discretion by applying an improper legal standard or
reaching a conclusion we are confident is incorrect. Harris,
820 F.2d at 597. The parties to this appeal do not dispute
the timeliness of the motion for leave to intervene, so we
move on to consider the other elements.
To justify intervention as of right, the applicant must
have an interest "relating to the property or transaction
which is the subject of the action" that is "significantly
protectable." Donaldson v. United States, 400 U.S. 517, 531
(1971). That observation, however, has not led to a"precise
and authoritative definition" of the interest that satisfies
Rule 24(a)(2). Mountain Top Condo., 72 F.3d at 366; see
also Conservation Law Found. v. Mosbacher, 966 F.2d 39,
41 (1st Cir. 1992) ("no bright line of demarcation exists").
Some courts treat the "interest" test as a pragmatic process
that qualifies as many concerned parties as is compatible
with efficiency. Others reject interests that are
"speculative." Often the determination of whether an
interest is significantly protectable is "colored to some
extent" by the "practical impairment" inquiry. Conservation
Law Found., 966 F.2d at 41-42.
The nebulous nature of the standard is apparent from
our precedents. Old Colony Trust Co. v. Penrose Industries
Corp., 387 F.2d 939, 941 (3d Cir. 1968), held that in a
declaratory judgment action over the commercial
reasonableness of the sale price of collateral, a "would-be
purchaser" did not have an adequate interest for
intervention. On the other hand, in EEOC v. AT&T, 506
F.2d 735, 741-42 (3d Cir. 1974), a union was permitted to
intervene to contest a proposed consent decree between the
government and an employer that could have affected the
terms of a collective bargaining agreement.
In Harris, the court denied intervention to a district
attorney in a suit brought to alleviate overcrowding and
other conditions in the local penal institution. We observed
that the district attorney did not administer the prison and
that a consent decree placing a ceiling on the prison
population would only tangentially affect his ability to
prosecute. 820 F.2d at 599-603. By contrast, Alcan
7
Aluminum held that an adequate interest for intervention
had been established where a right of contribution for
expenses incurred in cleaning up a hazardous waste site
could have been jeopardized by a proposed consent decree.
25 F.3d at 1183-86.
Brody involved a suit to enjoin religious speech. A group
of students and parents sought to intervene in opposition
to plaintiffs. We concluded that the proposed intervenors
had no interest in litigating the merits of the school's
policies, but to the extent a remedy fashioned in a decree
might infringe on their First Amendment rights, the parents
and students could be eligible for participation in the suit.
957 F.2d at 1116-17. We also commented on "our policy
preference which, as a matter of judicial economy, favors
intervention over subsequent collateral attacks." Id. at
1123.
In Alpha Housing, the sole member of a nonprofit
corporation sought to intervene to protect the continued
viability and tax exempt status of the corporation. We
accepted the plaintiffs' concession that these interests were
significant enough to support intervention. 54 F.3d at 162.
Finally, in Mountain Top Condominium, we concluded that
the intervenors' interest in the disposition of a specific fund
was sufficient to justify intervention even though they could
not challenge the merits of another party's claim to the
fund. 72 F.3d at 367-68.
This brief review of our jurisprudence does not yield a
pattern that will easily support or defeat intervention in all
circumstances. Rather, the variety of factual situations and
their resolution demonstrate our adherence to the elasticity
that Rule 24 contemplates when compared to the rigidity of
earlier practice. See Cascade Natural Gas Corp. v. El Paso
Natural Gas Co., 386 U.S. 129, 133-34 (1967).
A leading treatise explains that pragmatism is a
substantial factor that must be considered: "The central
purpose of the 1966 amendment was to allow intervention
by those who might be practically disadvantaged by the
disposition of the action and to repudiate the view, [under
the former rule], that intervention must be limited to those
who would be legally bound as a matter of res judicata." 7C
8
Wright, Miller & Kane, Federal Practice and Procedure: Civil
2d S 1908, at 301 (1986).
Phraseology such as "mere economic interests," for
example, has been used but has not proved decisive in
practice,1 nor have concepts such as "mere expectancies" or
"indefiniteness" been particularly helpful in identifying the
nature of the interest required. We have more often relied
on pragmatic considerations such as the benefits derived
from consolidation of disputes into one proceeding. Those
considerations, however, should not prevail if the focus of
the litigation would be unduly dissipated or case
management would become exceptionally complex.
Our survey of the law in other Circuits, particularly as
applied in environmental litigation, provides some helpful
background. In Sierra Club v. Espy, 18 F.3d 1202 (5th Cir.
1994), the case upon which the district court principally
relied, plaintiffs challenged certain management practices of
the Service in Texas forests. The Court of Appeals for the
Fifth Circuit concluded that two trade groups whose
members included the "major purchasers and processors"
of timber had an interest sufficient to satisfy Rule 24(a). Id.
at 1207. In that case, some member companies had
interests in existing timber contracts. Id.
In Sierra Club v. Glickman, 82 F.3d 106 (5th Cir. 1996)
(per curiam), a trade association representing farmers
sought intervention in a suit to cut off federal subsidies to
those who pumped water from an aquifer. Plaintiffs
contended that over-pumping threatened endangered
species and public health. The court concluded that the
suit "potentially" interfered with the intervenors' contract
_________________________________________________________________
1. That phrase and others like it were mentioned in Mountain Top
Condominium, 72 F.3d at 366, and Alcan Aluminum, 25 F.3d at 1185.
The concept was explored in New Orleans Public Service, Inc. v. United
Gas Pipe Line Co., 732 F.2d 452, 464-66, 470 (5th Cir. 1984) (en banc).
The issue in NOPSI was the remoteness of the interest of the city as a
regulatory agency in a breach of contract suit brought by a public utility
against one of its gas suppliers. It was not the fact that the city's
interest
was financial in nature that disqualified it, but rather, because its
interest was too attenuated from that of the utility. Id. The city failed
to
show that it possessed any interest recognized by substantive law.
9
rights by disrupting their access to irrigation water. Id. at
109.
Similarly, intervention was permitted by the Court of
Appeals for the First Circuit in Conservation Law
Foundation, where plaintiffs and a government agency
agreed on a consent decree that set timetables for the
establishment of a government plan that would impair the
business of commercial fisheries. As targets of a regulatory
plan ultimately aimed at reducing over-fishing, the
commercial fisheries alleged an interest that supported
intervention. 966 F.2d at 43-44.
Some decisions, however, adopt a more mechanical
approach when evaluating the relevant interests. In
Portland Audubon Society v. Hodel, 866 F.2d 302 (9th Cir.
1989), for example, the Court of Appeals for the Ninth
Circuit held that an economic interest in protecting a
continuous supply of timber was insufficient to warrant
intervention in a NEPA case by a trade group and various
timber companies. Following Wade v. Goldschmidt, 673
F.2d 182 (7th Cir. 1982) (per curiam), Portland Audubon
held that in a suit to compel an agency to follow NEPA, only
governmental bodies may be defendants. Id. at 309; see
also Forest Conservation Council v. United States Forest
Serv., 66 F.3d 1489, 1499 n.11 (9th Cir. 1995) (citing Sierra
Club v. EPA, 995 F.2d 1478, 1485 (9th Cir. 1993)); cf. Collin
County v. Homeowners Assoc. for Values Essential to
Neighborhoods (HAVEN), 915 F.2d 167, 170-72 (5th Cir.
1990) (plaintiffs lacked standing to sue for a judgment
declaring governmental compliance with NEPA). But cf.
Mountain States Legal Found. v. Glickman, 92 F.3d 1228,
1232-33, 1236 (D.C. Cir. 1996) (lumber company has
standing to sue the Service under the National Forest
Management Act and challenge its decision to limit timber
harvesting).
These cases seem to suggest that NEPA suits are sui
generis because "only the government" can comply with
that statute. We are reluctant to endorse a narrow
approach that makes the onus of compliance the litmus
test for intervention. Such a wooden standard minimizes
the flexibility and spirit of Rule 24 as interpreted in
Cascade Natural Gas. See Espy, 18 F.3d at 1207
10
(permitting timber industry organization to intervene as a
defendant in a NEPA case against the Service).
The reality is that NEPA cases frequently pit private,
state, and federal interests against each other. Rigid rules
in such cases contravene a major premise of intervention--
the protection of third parties affected by pending litigation.
Evenhandedness is of paramount importance. See Note,
Sierra Club v. U.S. Environmental Protection Agency:
Intervention of Right and the Victories that Come Back to
Haunt, 7 Tul. Envtl. L.J. 271, 283 (1993).
The expansion of standing by statute and case law has
enabled "private attorneys general" and "public interest"
groups to call governmental agencies to task in litigation.
These efforts, though often well-intentioned, sometimes
concentrate on narrow issues that are of significant
concern to plaintiffs but have an immediate and deleterious
effect on other individuals and entities. Rather than barring
access to these parties, Rule 24 allows the court to give
them the opportunity to present their positions.
Thus, we are reluctant to accept the holdings of the
Court of Appeals for the Ninth Circuit in Portland Audubon
and Sierra Club v. EPA that, in reliance on Wade, seem to
adopt a categorical rule in NEPA cases barring private
support for governmental agencies. Wade did not espouse
such a rigid position. In that case, the Court denied
intervention to various municipalities and private parties
that would have benefitted from a highway project because
their interests were not directly implicated by the lawsuit.
The Court cautioned, however, that a different case would
be presented if the suit would "directly alter contractual or
other legally protectable rights of the proposed intervenors."
673 F.2d at 186 n.6.
The Ninth Circuit inched away from the doctrinaire
approach in Forest Conservation Council by allowing non-
federal parties to intervene in a NEPA case, but limited
their participation to the remedy phase. 66 F.3d at 1499 &
n.11. Some of our cases, particularly Harris and Brody,
have endorsed a bifurcated approach in some
circumstances. We explored the viability of that form of
relief with counsel at oral argument, but neither they nor
11
we have been able to arrive at a pragmatic application of
that option here without unduly attenuating the applicants'
interests.
The convergence of conservation and timber interests
that has occurred in this case confirms that the categorical
approach can be too inflexible. Protecting timber interests
has been an express Congressional policy since the
establishment of the national forest system through the
Organic Administration Act of 1897. 16 U.S.C. S 475. That
policy was affirmed in the Multiple-Use Sustained-Yield Act
of 1960, 16 U.S.C. SS 528-31, and reaffirmed in the
National Forest Management Act of 1976. 16 U.S.C.S 1604.
The National Forest Management Act also blends logging
and environmental interests by requiring land management
plans to be drafted "under the principles of the Multiple-
Use Sustained-Yield Act" and "in accordance with" NEPA.
16 U.S.C. S 1604(g)(1).
Under these circumstances, we think that the decision of
the Court of Appeals for the Fifth Circuit in Sierra Club v.
Espy represents a more realistic approach in permitting
intervention. Timber companies have direct and substantial
interests in a lawsuit aimed at halting logging or, at a
minimum, reducing the efficiency of their method of timber-
cutting.
Adequacy of interest alone, however, is not enough to
grant intervention. Because Rule 24(a) envisions a separate
inquiry into whether the government or other existing
parties will adequately advocate the applicant's interest,
courts must be careful not to blur the interest and
representation factors together. See e.g., Solid Waste
Agency v. United States Army Corps of Engineers, 101 F.3d
503, 508 (7th Cir. 1996) (in suit to compel issuance of a
permit to allow establishment of a landfill, adjacent
municipality and citizens group could intervene to defend
the Corps' denial; "stumbling block" would be"proving
inadequacy of representation" by the government).
The burden of establishing inadequacy of representation
by existing parties varies with each case. A government
entity charged by law with representing a national policy is
presumed adequate for the task, Brody, 957 F.2d at 1123,
12
particularly when the concerns of the proposed intervenor,
e.g., a "public interest" group, closely parallel those of the
public agency. In that circumstance, the "would-be
intervenor [must make] a strong showing of inadequate
representation." Mausolf, 85 F.3d at 1303. But the
presumption notwithstanding, when an agency's views are
necessarily colored by its view of the public welfare rather
than the more parochial views of a proposed intervenor
whose interest is personal to it, the burden is comparatively
light. Conservation Law Found., 966 F.2d at 44; accord
Mausolf, 85 F.3d at 1303 ("when the proposed intervenors'
concern is not a matter of ``sovereign interest,' there is no
reason to think the government will represent it"); see also
Solid Waste Agency, 101 F.3d at 508-09 (raising concerns
that workload of Solicitor General's Office could prevent an
agency's appeal and thus adversely affect proposed
intervenors).
This overview demonstrates that Rule 24 demands
flexibility when dealing with the myriad situations in which
claims for intervention arise. Nonetheless, the polestar for
evaluating a claim for intervention is always whether the
proposed intervenor's interest is direct or remote. Due
regard for efficient conduct of the litigation requires that
intervenors should have an interest that is specific to them,
is capable of definition, and will be directly affected in a
substantially concrete fashion by the relief sought. The
interest may not be remote or attenuated. The facts assume
overwhelming importance in each decision.
Counseled by these appellate opinions, we assess the
case before us. The relief sought by plaintiffs, i.e., an
injunction to bar logging (at least until such time as the
NEPA process is completed) would have an immediate,
adverse financial effect on the school districts and
municipalities. That result is not speculative, intangible or
unmeasurable, especially when, as other courts have
observed, NEPA compliance actions can take years. See,
e.g., Forest Conservation Council, 66 F.3d at 1498.
The school districts and municipalities have direct
interests in this litigation because state law commands the
Commonwealth, through its political subdivisions, to
forward to them federal grant money generated through
13
timber harvesting each year, money that they will lose, at
least temporarily and perhaps permanently, if plaintiffs are
successful in this lawsuit. To suspend the flow of revenue
to the school districts and municipalities for even a limited
period of time would affect spending for essential school
activities and public projects. We are persuaded that the
interests jeopardized, which are protected by state law, are
direct, substantial and of adequate public interest as to
justify intervention. In these sparsely populated areas with
limited tax bases, the impairment caused by curtailing
revenue provided through logging activity would be
significant.
Turning to the private-party applicants, the district court
cited Sierra Club v. Espy for the proposition that only those
timber companies with existing contracts had an interest
that would support intervention. From our point of view,
Sierra Club v. Espy states a rule of inclusion for evaluating
interests under Rule 24(a)(2), but should not be read to
exclude similar, contract-related interests of the type
implicated here.
Ridgway Lumber had more than a mere expectancy of
obtaining a contract in the future. It was already a
successful bidder, and from all that appears in the record,
would now be a party to a remunerative contract for logging
but for the institution of this litigation. Realistically,
Ridgway has as strong an economic stake in the outcome of
this litigation as do Spilka and Payne, which were
permitted to intervene.
Brookville Wood Products and Northeast Hardwoods may
not have received contracts under the projects challenged
by plaintiffs, but the district court found that they are "very
dependent on timber contracts with the [Service] to cut
timber" in the Forest and "their continued existence may be
jeopardized" if plaintiffs prevail. Dist. Ct. Op. at 5. In
addition, like the other timber companies, they have a
considerable stake in ensuring that the landscape corridor
approach to forest management remains in place. Congress
has designated our national forests for multiple uses, but it
has also emphasized that those uses are "not in derogation
of" timber harvesting. 16 U.S.C. S 528. This statement of
policy, when viewed in light of the district court's finding
14
that a victory for plaintiffs could destroy their business,
satisfies us that Brookville and Northeast Hardwoods have
a substantial interest, directly related to and threatened by
this litigation, that meets the requirements of Rule 24(a).
Allegheny Hardwood falls within the category of those
trade associations representing threatened businesses
granted intervention in such cases as Sierra Club v.
Glickman, 82 F.3d at 108, Sierra Club v. Espy, 18 F.3d at
1203, and Conservation Law Foundation, 966 F.2d at 40.
We find the rulings in those cases persuasive and
applicable to Allegheny Hardwood.
Therefore, we conclude that the interests of the private-
party applicants are direct, not remote. In other words, they
have more than mere attenuated economic interests
because, as we have outlined, their longstanding
dependence on contractual relations with the Service is
unique to them.
Although plaintiffs assert that the proposed intervenors'
interests are adequately protected by the government
defendant, the district court found otherwise with respect
to Payne and Spilka. The court pointed out that in a
companion case, Curry v. United States Forest Service, 988
F. Supp. 541 (W.D. Pa. 1997), the agency chose not to
appeal an adverse ruling in connection with timber sales in
other projects in the Allegheny National Forest.
Consequently, that litigation gave legitimate pause to the
lumber companies' confidence in adequate representation
by the Service.
In addition, the government represents numerous
complex and conflicting interests in matters of this nature.
The straightforward business interests asserted by
intervenors here may become lost in the thicket of
sometimes inconsistent governmental policies. See Sierra
Club v. Glickman, 82 F.3d at 110; Forest Conservation
Council, 66 F.3d at 1499; Sierra Club v. Espy, 18 F.3d at
1207-08; Conservation Law Found., 966 F.2d at 44-45.
Although it is unlikely that the intervenors' economic
interest will change, it is not realistic to assume that the
agency's programs will remain static or unaffected by
unanticipated policy shifts.
15
Plaintiffs contend that whatever the doubts about the
vigor of the government's representation, Payne and
Spilka's interests are aligned with those of the proposed
intervenors. We disagree. It does not strain the imagination
to conjure up situations in which Payne and Spilka may
face the irresistible temptation to work out settlements that
benefit themselves and not the other, competing timber
companies. Compromises of that nature might also harm
the school districts and municipalities, which have interests
inextricably intertwined with, but distinct from, those of the
timber companies. See Lake Investors Dev. Group, Inc. v.
Egidi Dev. Group, 715 F.2d 1256, 1261 (7th Cir. 1983).
In Solid Waste Agency, the Court of Appeals for the
Seventh Circuit discussed the value of a "wait and see"
approach in which proposed intervenors would file a
conditional application with the understanding that the
district court would defer consideration until requested to
do so. 101 F.3d at 508-09. Such a procedure may work in
some cases, but on balance, intervenors and the public
interest in efficient handling of litigation are better served
by prompt action on a intervention motion. See
Conservation Law Found., 966 F.2d at 44 ("An intervenor
need only show that representation may be inadequate, not
that it is inadequate."). The early presence of intervenors
may serve to prevent errors from creeping into the
proceedings, clarify some issues, and perhaps contribute to
an amicable settlement. Postponing intervention in the
name of efficiency until after the original parties have
forged an agreement or have litigated some issues may, in
fact, encourage collateral attack and foster inefficiency. In
other words, the game may already be lost by the time the
intervenors get to bat in the late innings.
III.
We conclude that in the circumstances of this case, the
motion for leave to intervene should have been granted.
Each applicant has a significantly protectable interest in
the transaction that may be jeopardized by the lawsuit.
None of the existing parties will adequately represent their
interests. Although there are a number of intervenors, we
are confident that the very able district judge will effectively
16
handle any case-management problems that may arise.
Accordingly, we will reverse the order denying intervention
and remand the case to the district court for further
proceedings consistent with this Opinion.2
_________________________________________________________________
2. In light of our holding that the applicants should have been granted
leave to intervene as of right under Rule 24(a), we need not decide
whether the district court should have granted permissive intervention
under Rule 24(b).
17
BECKER, Chief Judge, Concurring.
Although I believe the question to be close as to the
intervention of Brookville Wood Products, Inc. and
Northeast Hardwoods, I agree with the majority that the
district court should have granted the request of the
appellants to intervene as of right, hence I concur in the
judgment. I fear, however, that the majority's analytic
framework departs from the doctrinal view that this Court
has taken of Rule 24(a)(2), will create mischief in this area,
and will open intervention as of right to an amorphous "I
know it when I see it" approach. I therefore write separately
to set forth my view of the correct governing principles.
I.
Contemporary litigation--particularly environmental
litigation--frequently affects numerous individuals, groups,
communities, and business interests, including those not
originally made party to the litigation. The question often
arises, as in this case, whether any of these outsiders has
a right to intervene and to be made a party to the case.
Plaintiffs have requested an injunction halting all logging
activities in the Allegheny National Forest ("ANF"), canceling
all existing contracts for logging in the Forest, and
preventing the United States Forest Service from entering
into new contracts. The Forest Service is a party to
contracts with certain logging companies and, if not
prevented by the present litigation, would enter into
contracts with other companies for logging in the ANF. The
proceeds from these contracts redound not only to the
benefit of the federal government, but also, pursuant to
federal and state law, to the benefit of the local school
districts and municipalities in which the ANF is located.
Should the requested injunction issue, not only will logging
jobs be lost and municipal tax revenues from workers'
incomes and company profits be reduced, but negative
economic effects also would be felt by logging supply
companies and even by other local businesses (food
establishments, real estate developers, etc.). The issue
before us is whether the district court erred when it
concluded that, of all of these individuals and groups, only
two logging companies with existing contracts with the
18
Forest Service met the requirements for intervention as of
right pursuant to Rule 24(a)(2).1
Federal Rule of Civil Procedure 24(a)(2) provides that:
(a) Intervention of Right. Upon timely app lication
anyone shall be permitted to intervene in an action:. . .
(2) when the applicant claims an interest relating to
the property or transaction which is the subject of the
action and the applicant is so situated that the
disposition of the action may as a practical matter
impair or impede the applicant's ability to protect that
interest, unless the applicant's interest is adequately
represented by existing parties.
As the majority notes, we have required proof of four
elements for intervention under Rule 24(a)(2): (1) a timely
application; (2) sufficient interest in the liti gation; (3) which
might be impaired, as a practical matter, by disposition of
the action; and (4) inadequate representation of t he
applicant's interest by existing parties to the litigation. See
Mountain Top Condo. Ass'n v. Dave Stabbert Master Builder,
Inc., 72 F.3d 361, 365-66 (3d Cir. 1995). A district court's
denial of intervention as of right will be reversed only if the
court has abused its discretion by applying the wrong legal
standard or reaching a conclusion we are confident is
incorrect. See Harris v. Pernsley, 820 F.2d 592, 597 (3d Cir.
1987).
One prominent source has suggested that the inquiry
under Rule 24(a)(2) must be "flexible," with a"balancing
and blending" of the individual elements, and that "[t]he
criteria should be considered together rather than
discretely." 6 James Wm. Moore, Moore's Federal Practice
S 24.03[1][b] (3d ed. 1998). The majority appears to adopt
such a "flexible" and "blending" approach to Rule 24(a)(2),
endorsing what it sees as the Rule's "elasticity," Maj. Op. at
8, and calling for "pragmatic considerations" when
evaluating a petition for intervention. Maj. Op. at 9. I
_________________________________________________________________
1. Because I conclude that the appellants are entitled to intervention as
of right under Rule 24(a)(2), I agree with the majority that we need not
reach the question of whether they are entitled to permissive intervention
under Rule 24(b)(2).
19
acknowledge, with my colleagues in the majority, that
"pragmatic considerations such as the benefits derived from
consolidation of disputes into one proceeding," id., are
relevant in the Rule 24(a)(2) analysis, and that excessive
rigidity is neither desirable nor likely what the rulemakers
intended in adopting the amended Rule 24 in 1966. I fear,
however, that the majority has taken the pragmatism that
the 1966 amendments introduced to Rule 24 too far--well
past the intentions of the Rule's framers, and past any
recognizable standard to guide trial courts when faced, as
they frequently are, with petitions for intervention by
parties with varying degrees of interest in the litigation
before the court. I also am concerned that this"blending"
approach opens the intervention door to parties with a
minor interest or a small likelihood of impairment--as long
as they can make up for the shortfall in one element with
strength in another. More importantly, I do not believe that
the text of the Rule will support the majority's gloss.
II.
The most difficult question in many intervention cases,
and I believe in this one as well, is the nature of the
proposed intervenors' interest and whether this interest is
sufficient to meet the requirements of Rule 24(a)(2).2 The
starting point for this analysis must be Donaldson v. United
States, 400 U.S. 517 (1971). In Donaldson, the Supreme
Court held that the interest under Rule 24(a)(2) must be
one that is "significantly protectable." Id. at 531. Although
the Supreme Court has failed to provide further guidance
as to the meaning of this phrase, we have decided a
number of cases in which the nature of the necessary
interest has been explored. In my opinion, the majority errs
in viewing these precedents as creating a "nebulous"
standard. Maj. Op. at 7.
In Harris, supra, we said that a would-be intervenor
"must demonstrate that there is a tangible threat to a
legally cognizable interest." Harris, 820 F.2d at 601. In
_________________________________________________________________
2. Like the majority, I do not discuss the timeliness requirement, as no
party to this appeal contests the timeliness of the proposed intervenors'
petition.
20
Mountain Top, supra, we held that "a mere economic
interest" is insufficient. 72 F.3d at 366. While these cases
do not give us a bright-line standard, they do flesh out the
contours of the doctrine. They reduce the analysis to a two-
part inquiry, i.e., we must examine (1) the reality of the
interest--does the litigation pose a "tangible threat" to the
applicant or simply a speculative one?--and (2) the nature
of the interest, e.g., is it a "mere economic interest"? We
have found an interest insufficient when a party's status
was simply "would-be purchaser" of collateral, see Old
Colony Trust Co. v. Penrose Indus. Corp., 387 F.2d 939, 941
(3d Cir. 1968), or when a district attorney's ability to
prosecute cases would not be directly affected by a prison
consent decree, see Harris, 820 F.2d at 599-603. In
contrast, we have found a sufficient interest when a
proposed consent decree directly impinged on an existing
contractual right, see EEOC v. AT&T, 506 F.2d 735, 741-42
(3d Cir. 1974), or on a statutory right of contribution, see
United States v. Alcan Aluminum, Inc., 25 F.3d 1174,
1183-86 (3d Cir. 1994). As these cases demonstrate, when
the interest at issue is both real and legally cognizable
(through contract, statute, or a property right), we have
found it to meet the requirements of Rule 24(a)(2) and
Donaldson. See also Brody v. Spang, 957 F.2d 1108, 1117
(3d Cir. 1992) (finding an interest sufficient when a consent
decree altered "legal rights and responsibilities of the
applicants for intervention").
Other courts have distinguished interests sufficient
under Rule 24(a)(2) from those not sufficient for
intervention as of right in a similar manner. In Scotts Valley
Band of Pomo Indians v. United States, Indian bands
brought suit against the federal government to restore the
trust status of certain land. See 921 F.2d 924 (9th Cir.
1990). The Ninth Circuit concluded that the City of Chico
had an interest sufficient for intervention because the
litigation could result in the removal of certain property
from the city's tax rolls and from under its regulatory
purview. See id. at 927-28. In contrast, the Second Circuit
found the interest of proposed intervenors to be too
speculative in a case in which plaintiffs sought to force the
Environmental Protection Agency to promulgate new air
quality standards. See American Lung Ass'n v. Reilly, 962
21
F.2d 258 (2d Cir. 1992). There, although the proposed
intervenors, electric utilities and trade associations, had an
interest in the regulations themselves, the plaintiffs did not
seek to enjoin any activities in which the utilities had a
direct interest and therefore the utilities had no legally
cognizable interest that would be altered by the litigation
itself. See id. at 261.
In similar situations, other courts have found a sufficient
interest for intervention because the proposed intervenors
would be directly affected by the litigation seeking changes
in federal agency rulemaking. See, e.g., Sierra Club v.
Glickman, 82 F.3d 106, 109 (5th Cir. 1996) (farm group had
sufficient interest in suit which sought to prevent
government agency from expending funds to, or fulfilling
contracts with, farmers); Sierra Club v. Espy, 18 F.3d 1202,
1207 (5th Cir. 1994) (timber purchasing companies with
existing contracts had legally cognizable interest sufficient
to intervene in challenge by environmental groups to Forest
Service policies regarding logging procedures); Sierra Club v.
United States Envtl. Protection Agency, 995 F.2d 1478, 1482
(9th Cir. 1993) [U.S. EPA] (relief sought by plaintiffs would
directly impinge on intervenor-city's existing permit rights
under Clean Water Act); Conservation Law Found. v.
Mosbacher, 966 F.2d 39, 43 (1st Cir. 1992) (Weis, J.)
(consent decree requiring promulgation of new fishing plan
would directly affect intervening fishing groups because it
would require not only a new plan but specifically a plan to
reduce overfishing).3
_________________________________________________________________
3. I note that, while I agree with the majority that it would be
inappropriate to adopt a categorical rule that non-governmental bodies
cannot intervene in NEPA cases, I believe that the Ninth Circuit has
clarified its holding in Portland Audubon that "governmental bodies
charged with compliance can be the only defendants" in a NEPA action.
Portland Audubon Soc'y v. Hodel, 866 F.2d 302, 309 (9th Cir. 1989)
(internal quotations omitted). In U.S. EPA, supra, as well as in more
recent cases, the Ninth Circuit has explained its holding in Portland
Audubon as simply requiring that the intervenor have some interest
protected by statute, contract, or property rights other than the
statutory
scheme of NEPA itself, which by its terms only applies to the federal
government. U.S. EPA, 995 F.2d at 1483-84. In Portland Audubon, the
proposed intervenors' interest "appears to have been an economic
22
III.
I turn to applying the foregoing analytic framework (and
case law) to the parties seeking intervention in this case.
While my approach differs from the majority's, it leads to
the same conclusion, that all potential intervenors have a
sufficient interest for intervention as of right. Two proposed
intervenors, Payne Forest Products, Inc. and Spilka Wood
Products Company, have existing contracts with the Forest
Service which could be suspended or canceled as a result
of the present litigation. There can be no doubt that
interference with existing contractual rights constitutes the
necessary "tangible threat to a legally cognizable interest"
that we have required for intervention as of right. Allegheny
Hardwood, the trade association, also represents lumber
companies with existing contracts, see Dist. Ct. Op. at 6,
and therefore, as a representative of these companies, has
a legally cognizable interest which will be directly affected
by the present litigation. See, e.g., Espy, 18 F.3d at 1207
(existing timber contracts of member companies give trade
association "legally protectable property interests"
necessary to satisfy intervention as of right).
Ridgway Lumber Company, while without an existing
lumber contract, had successfully bid on one and would
have entered into a contract with the Forest Service absent
the present litigation. Its successful bid is a tangible
interest which could be--indeed, has been--directly affected
by the present litigation, whatever its eventual outcome.
See, e.g., Forest Conservation Council v. United States Forest
Serv., 66 F.3d 1489, 1494 (9th Cir. 1995) (when suit has
"direct, immediate, and harmful effects" on third party's
legally protectable interests, this satisfies the "interest"
prong of Rule 24(a)(2)).
A more difficult case is presented with respect to
proposed intervenors Brookville Wood Products, Inc. and
_________________________________________________________________
interest based upon a bare expectation, not anything in the nature of
real or personal property, contracts, or permits." U.S. EPA, 995 F.2d at
1482; see also id. at 1485 ("The loggers in Portland Audubon had an
interest in securing timber, but no existing legal right to it . . . ."
(emphasis added)).
23
Northeast Hardwoods. Neither of these companies has an
existing contract for cutting timber in the ANF, nor have
they successfully bid on a contract which would have been
consummated but for the present litigation. However, the
district court found that these companies "generate the
majority of their revenues from timber contracts with the
[Forest Service] to cut timber in the Allegheny National
Forest" and that they "are very dependent on[these] timber
contracts." Dist. Ct. Op. at 5. I understand thisfinding, in
light of the record, to mean that these companies have
consistently been successful bidders in ANF logging
contracts, that it is only an accident of timing that they do
not have contracts at this juncture, and that--particularly
given the remoteness of the area in which the companies
operate--they are very likely to secure contracts in the near
future if logging contracts are there to be bid (which will
depend on the outcome of this litigation). In evaluating the
interest of the companies without existing contracts, it is
apparent that it is not an "actual" interest, but neither is it
speculative. Under these circumstances, I cannot say that
the majority is wrong when it finds that these companies
also have the sufficient interest to meet our requirements
for intervention as of right.
Finally, the government intervenors have an actual,
direct interest in this litigation by virtue of their statutory
right to a portion of the proceeds from contracts between
logging companies and the Forest Service. The local
governments are effectively limited partners with the named
defendant in this case, having no control over the formation
of the logging contracts but a vested right to a portion of
the proceeds therefrom. Without this piggybacking on the
named defendants, I would question whether the
municipalities have a sufficient interest to intervene, solely
based on their loss of revenue from reduced tax receipts.
The majority is not clear about this distinction,
emphasizing the "limited tax bases," Maj. Op. at 14, of the
municipalities in question. In my view, it is only the
statutory right to logging proceeds that gives the
municipalities here a sufficient interest to intervene and to
protect that interest from interference that could arise from
this litigation.
24
IV.
As noted above, the majority does not clearly draw the
line between interests sufficient for intervention under Rule
24(a)(2) and those not sufficient. To better illustrate where
I believe this line is drawn, I consider the proposed
intervention of hypothetical parties to the present case. The
logging companies to whom we grant intervention today
purchase supplies from other companies for the products
they need to carry out their timber-cutting business. If the
logging companies' contracts with the Forest Service are
suspended or canceled, the supply companies could suffer
a loss of business as the logging companies no longer need
purchase supplies for timber-cutting. In addition, the
logging companies employ workers who use their wages to
purchase products and services in local establishments,
such as gas stations, grocery stores, etc. Assume one of
these establishments is a diner frequented by logging
company employees. When the logging companies'
contracts with the Forest Service are disrupted by this
litigation, these employees may be laid off or their wages
reduced. With less income, they might gather at the diner
with less frequency. The diner clearly will suffer an
economic harm, formally (if not directly) caused by the
present litigation. The same would be true of local
municipalities if they did not have the statutory right to a
portion of the logging contract proceeds; they too would
suffer an economic harm caused indirectly by the present
litigation.
If the logging supply companies or the local diner were to
petition for intervention as of right, should the district court
find their interest sufficient to warrant intervention under
Rule 24(a)(2)? I believe the majority's "elastic" approach at
once gives the district court little guidance in answering
this question, and gives it license to do whatever it wants.
In contrast, I think it is clear that neither the Rule nor our
prior jurisprudence in this area would permit the supply
company or the diner to intervene as of right. While both of
these businesses likely will suffer an economic harm from
the litigation, in terms of both the nature and the reality of
the interest, this harm is both too contingent and too
remote from the litigation itself to be a legally cognizable
25
interest sufficient for intervention under Rule 24(a)(2). See,
e.g., City of Stilwell v. Ozarks Rural Elec. Coop. Corp., 79
F.3d 1038, 1042 (10th Cir. 1996) (supplier of electrical
power to defendant had insufficient interest for intervention
even though it would "benefit financially if[defendant] is
allowed to continue to service its customers").
Unlike the logging companies and the local governments,
which suffer an immediate, direct harm when the logging
contracts are suspended--even if they somehow can replace
their canceled contracts or lost revenue from some other
source--the diner and supply company suffer any loss only
down the line, after the logging companies have reduced
their workers' wages or stopped ordering logging supplies.
See, e.g., Montana v. United States Envtl. Protection Agency,
137 F.3d 1135, 1142 (9th Cir. 1998) (potential effect on
property values from promulgation of new water quality
standards is "a speculative and purely economic interest
[which] does not create a protectable interest in litigation
concerning a statute that regulates environmental, not
economic, interests"). Further, such losses that the diner or
supply company may suffer are not grounded in a legal
right--contractual, property, or statutory--which is related
to the litigation at hand. See, e.g., Forest Conservation
Council v. United States Forest Serv., 66 F.3d 1489,
1495-97 (9th Cir. 1995) (only "tangible, concrete rights
protected by" statute or contract constitute a sufficient
interest under Rule 24(a)(2); purely economic injuries,
pecuniary losses, or frustrated financial expectations are
not sufficient interests).4
In a different context--the interpretation of the nation's
antitrust laws--the Supreme Court has distinguished
between parties injured by direct actions of an antitrust
violator and those injured down the line (i.e., purchasers
_________________________________________________________________
4. The same analysis holds for municipalities without a piggyback right
who may suffer losses when the citizens (lumber company employees) or
businesses (logging companies, supply companies, local establishments)
within their communities have less income and pay fewer taxes. Unlike
the actual municipalities and school districts at issue here, local
governments without a direct statutory right to a share of the proceeds
from logging contracts have neither the tangible interest nor the direct
link to the litigation necessary for intervention under Rule 24(a)(2).
26
from the directly injured parties). See Illinois Brick Co. v.
Illinois, 431 U.S. 720 (1977). In Illinois Brick, the Court
reasoned that "allowing indirect purchasers to recover
using pass-on theories . . . would transform treble-damages
actions into massive multiparty litigations involving many
levels of distribution and including large classes of ultimate
consumers remote from the defendant." Id. at 740. Despite
Rule 24's pragmatic underpinnings, the concern the Court
expressed in Illinois Brick is instructive in the present
context. Environmental litigation of the present type could
potentially involve multiple layers of plaintiffs and
defendants. The indirect effects from the alleged
wrongdoing by the federal agency, as well as the collateral
effects from the litigation itself, touch the lives of residents
of the communities near the forests, visitors to the area,
local businesses, municipalities and school districts,
logging companies and their employees and suppliers,
consumers of wood and paper products, transportation
companies which have contracts to move the timber to
mills, and so on. As in Illinois Brick, some line must be
drawn lest these environmental cases (and other public law
cases) become "massive multiparty litigations." We can--
and should--draw this line without sacrificing the
pragmatism of Rule 24.
V.
Once we have established that a party has a sufficient
interest for intervention as of right, we must determine
whether "the disposition of the action may as a practical
matter impair or impede the applicant's ability to protect
that interest." Fed. R. Civ. P. 24(a)(2). I note again that the
majority fails to treat the interest prong and the impairment
prong as separate requirements. The Rule, however,
requires both a sufficient interest and that this interest
might be impaired by disposition of the action in the party's
absence. Therefore, I believe that the analysis, while
remaining flexible and pragmatic, must be performed in
such a manner as to ensure that intervention as of right is
granted only to those parties meeting both requirements.
In the present case, it is clear that this litigation itself
could practically impair the interests of all of the proposed
27
intervenors if the district court were to grant the injunctive
relief sought by the plaintiffs pending a decision on the
underlying dispute. See Appellees' Brief at 3 ("[T]he initial
result of success in the litigation below will be a pause in
timber cutting with regard to the two projects and in other
areas of the [ANF] . . . ."). The logging companies' interest
is in contracts to cut timber, either existing or certain to be
entered into in the near future (absent the litigation). An
injunction that suspends, cancels, or prevents future
contracting by the Forest Service will directly and
immediately affect this interest.5 Similarly, the local
governments would immediately lose the income to which
they are entitled from these contracts.
The only hope of preventing impairment would be if the
proposed intervenors filed their own suit and argued that
the Forest Service has acted in compliance with the
relevant statutes and that, therefore, no injunction should
issue. However, a contrary determination in the present
case would have a stare decisis effect on this potential
future litigation, leaving the proposed intervenors without
legal recourse to protect their interests. As we said in
Brody, supra, the practical impairment prong is satisfied if
a judgment
will have a significant stare decisis effect on
[applicants'] claims, or if the applicants' rights may be
affected by a proposed remedy.
An applicant need not, however, prove that he or she
would be barred from bringing a later action or that
intervention constitutes the only possible avenue of
relief. The possibility of a subsequent collateral attack
does not preclude an applicant from demonstrating that
his or her interests would be impaired should
intervention be denied.
_________________________________________________________________
5. This is not a case like ManaSota-88, Inc. v. Tidwell, 896 F.2d 1318
(11th Cir. 1990), in which proposed intervenors could not point to any
direct effect from the relief sought by plaintiff-environmental groups--
the
promulgation of new regulations by a federal agency--as it was "purely
a matter of speculation" whether the proposed intervenors would be in
violation of any new regulations, thereby increasing their costs of
compliance. Id. at 1322.
28
957 F.2d at 1123 (citations omitted). All of the proposed
intervenors meet this requirement in the present case.6
VI.
In sum, I believe that an increasingly clear, ifflexible,
standard has developed in our Rule 24(a)(2) case law, which
we should adhere to in this case and in future intervention
situations, and which requires a searching analysis of each
of the elements required for intervention as of right. I also
believe that this jurisprudence, while not necessarily
followed in the majority opinion, leads to the same result.
I therefore concur in the judgment granting intervention to
all of the proposed intervenors.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
6. I agree with the majority that the Service's interests do not
necessarily
coincide with the logging companies and that, given the minimal
standard for finding that an applicant's interests are not adequately
represented, see Trbovich v. United Mine Workers , 404 U.S. 528, 538
n.10 (1972), all of the logging companies--and the local governments--
meet this final requirement for intervention.
29