Heartwood Inc v. US Forest Service , 316 F.3d 694 ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1869
HEARTWOOD, INCORPORATED, a non-profit corporation,
REGIONAL ASSOCIATION OF CONCERNED
ENVIRONMENTALISTS, a non-profit corporation,
JIM BENSMAN, et al.,
Plaintiffs-Appellants,
v.
UNITED STATES FOREST SERVICE, ANN M. VENEMAN,
Secretary of the United States Department of
Agriculture, and DALE BOSWORTH, Chief of the United
States Forest Service,
Defendants-Appellees,
SHAWNEE TRAIL CONSERVANCY and
BLUERIBBON COALITION, INCORPORATED,
Intervening Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 C 4255—James L. Foreman, Judge.
____________
ARGUED NOVEMBER 28, 2001—DECIDED JANUARY 14, 2003
____________
Before HARLINGTON WOOD, JR., KANNE, and ROVNER,
Circuit Judges.
2 No. 01-1869
ROVNER, Circuit Judge. Plaintiffs Heartwood and
Regional Association of Concerned Environmentalists
(collectively “Heartwood”) are environmental organiza-
tions dedicated to the protection of public lands. Their law-
suit in this case was prompted by regulations issued by
the United States Forest Service limiting the notice and
appeal rights for a class of actions. The history summarized
by the district court explores the genesis of this case.
Prior to 1992, the Forest Service’s administrative ap-
peal regulations linked administrative review opportun-
ities to the documentation prepared pursuant to the Na-
tional Environmental Policy Act (NEPA), and allowed for
the appeal of agency decisions documented in a “decision
memo,” “decision notice,” or a “record of decision.” The For-
est Service explained the distinction as follows. For ac-
tions which significantly affect the environment and for
which an environmental impact statement is required
under NEPA, the Forest Service documents its decision
in a “record of decision.” Where an environmental assess-
ment is prepared and, based on that assessment, the For-
est Service makes a finding of no significant impact on
the environment, the determination is documented in a
“decision notice.” Finally, actions falling within a class
requiring no environmental documentation under NEPA
and which are “categorically excluded” under NEPA’s im-
plementing regulations are documented in a “decision
memo.”
In March of 1992, the Forest Service proposed the
elimination of appeals for all those decisions except for
appeals of forest plans, characterizing the appeals as
time-consuming, procedurally onerous, confrontational
and costly. In the face of significant public opposition to
the proposal, Congress enacted the Appeals Reform Act
of 1992 (“ARA”) which required the Forest Service to
establish a notice and comment process for proposed For-
est Service actions “concerning projects and activities
No. 01-1869 3
implementing land and resource management plans
developed under the Forest and Rangeland Renewable
Resources Planning Act of 1974” and required the For-
est Service to modify the appeals procedure for such
projects. The Forest Service proposed regulations to im-
plement the ARA, which provided notice, comment and
administrative appeals for all actions except “project
or activity decisions documented in a Decision Memo
listed in Forest Service Handbook 1909.15, section 31.2,
Categories 1 through 3 and 5 through 9.” Those categories
included construction of trails, utility lines, approval of
certain special use permits, tree regenerations, prescribed
forest burning and cutting designed to improve timber
stands, and certain “short-term” mining investigations
which allow the building of up to one mile of roads. Prior
to that proposed regulation, all projects documented in
a decision memo were subject to appeal. The Forest Ser-
vice ultimately finalized that regulation, and denied Heart-
wood’s Petition for Rulemaking, which had sought the
rescission and re-promulgation of the regulation as an
improper implementation of the ARA.
After allowing some time during which the regula-
tions were in operation in order to assess the impact,
Heartwood filed suit in November 1999 before the stat-
ute of limitations expired. Heartwood contended that the
Forest Service violated the ARA and the Administra-
tive Procedure Act (APA) by promulgating regulations
that improperly exempt many proposed Forest Service
actions from notice, comment and administrative appeal.
The complaint sought a declaration that the Forest Ser-
vice violated the ARA and the APA and a remand of the
regulations to the Forest Service for re-promulgation in
accordance with the law, as well as the enjoining of all
agency actions that should have provided the public
with notice, comment and administrative appeal under
the ARA.
4 No. 01-1869
In response to the suit, the Forest Service engaged
in extensive settlement negotiations with Heartwood. On
January 10, 2000, and thereafter on nine additional
occasions at one-month intervals, the Forest Service
moved to extend the time to file its answer to the com-
plaint in order to complete those negotiations. The nego-
tiations ultimately proved fruitful, and on September 6,
2000, the parties entered into a Consent Judgment, which
the court entered on September 15, 2000. In that Consent
Judgment, the Forest Service agreed to apply the notice,
comment and appeal procedures to a list of projects
and activities including some involving recreational uses.
Some of the numerous projects and activities encom-
passed within the consent order and subject to notice,
comment and appeal included the use of prescribed burn-
ing, the creation of wildlife openings, and the designation
of certain travel routes for off-highway vehicles and the
construction of new routes. At this point in time, the
Shawnee Trail Conservancy and the BlueRibbon Coali-
tion (“the Recreational Groups”) filed a motion to inter-
vene. The district court granted intervention and also
granted the Recreational Groups’ motion to vacate the
consent judgment pursuant to Rule 59(e). In granting the
Rule 59(e) motion, the district court held that the Recre-
ational Groups were necessary parties to the action under
Federal Rule of Civil Procedure 19.
Heartwood filed a notice of appeal from that decision
and argues before this court that the district court erred
in granting the motion to intervene as well as in vacat-
ing the consent judgment. In opposition, the Recrea-
tional Groups and the Forest Service question our appel-
late jurisdiction to hear this matter and defend the dis-
trict court’s decisions, although no party argues that the
district court properly determined that the Recreational
Groups were necessary parties.
No. 01-1869 5
We turn first to the jurisdictional issue. Heartwood
acknowledges that the order vacating the consent judg-
ment was not a final judgment and does not premise
jurisdiction on that basis. Instead, Heartwood asserts
that the decision was appealable pursuant to 28 U.S.C.
§ 1292(a)(1), which allows for the appeal of “[i]nterlocutory
orders of the district court . . . granting, continuing, modify-
ing, refusing or dissolving injunctions . . . .” The Supreme
Court in Carson v. American Brands, Inc., 450 U.S. 79(1981), applied that provision to a district court order
refusing to approve a consent decree. In that case, the
district court refused to approve a consent decree between
a tobacco producer and a class of present and former
African-American seasonal employees and applicants for
employment, in a lawsuit alleging that the tobacco pro-
ducers had discriminated against the class members in
hiring, promotion, transfer, and training opportunities.
The consent decree would have required the tobacco
producer to give hiring and seniority preferences to African-
American employees and to fill one-third of all of the
supervisory positions in the Richmond Leaf Department
with qualified African-American employees. Id. at 81. The
district court refused to approve that consent decree,
concluding that it unlawfully granted preferential treat-
ment on the basis of race in violation of Title VII absent
a showing of present or past discrimination and that the
relief must be limited to actual victims of that discrim-
ination.
The Fourth Circuit refused to review that order on
appeal, holding that it lacked subject matter jurisdic-
tion because the order was not a final judgment and
was neither a collateral order under 28 U.S.C. § 1291 nor
an interlocutory order refusing an injunction under 28
U.S.C. § 1292(a)(1). The Supreme Court, however, reversed
that decision, holding that the appellate court had sub-
ject matter jurisdiction over the decision refusing to
6 No. 01-1869
approve the consent decree because that order had
the practical effect of refusing an injunction. Because
§ 1292(a)(1) was intended to be a limited exception to the
final-judgment rule, the Court in Carson held that an
interlocutory order that has the practical effect of refus-
ing an injunction is appealable under that provision if
the order might have “ ‘serious, perhaps irreparable, con-
sequences’ and . . . can be ‘effectually challenged’ only by
immediate appeal.” Id. at 84, quoting Baltimore Contrac-
tors, Inc. v. Bodinger, 348 U.S. 176, 181 (1955). In Donovan
v. Robbins, 752 F.2d 1170, 1174 (7th Cir. 1985), we sum-
marized the holding of Carson:
Carson, we conclude, requires that irreparable harm
be shown whenever a party wants to appeal immedi-
ately either an interlocutory order deferring the entry
of a permanent injunction, whether free-standing or
contained in a proposed consent decree, or an interlocu-
tory order that while not explicitly the grant or denial
of a preliminary injunction may have consequences
(summed up in the words “irreparable harm”) similar
to those of such an order
See also 16 Wright & Miller, FEDERAL PRACTICE AND
PROCEDURE JURISDICTION 2D § 3924.1.
The Court in Carson held that irreparable harm was
demonstrated because the order in that case might have
the consequence of “denying the parties their right to
compromise their dispute on mutually agreeable terms.”
450 U.S. at 87-88. The Court noted that settlements may
be predicated on the implied condition that the parties
would thereby avoid litigation. Id. The district court’s
rejection of the consent decree, however, hinged on the
absence of evidence establishing past and present discrimi-
nation and the lack of evidence identifying the actual
victims of that alleged discrimination. In refusing to enter
the consent decree, the court “effectively ordered the par-
ties to proceed to trial,” with the corresponding “serious,
No. 01-1869 7
perhaps irreparable consequence” of denying the parties
their right to settle the case. Id. The Carson Court held that
there was a second serious, perhaps irreparable conse-
quence in that the district court’s rejection of the consent
decree would delay the restructuring of the defendant’s
transfer and promotional policies. Id. at 88-89.
We are presented here with a similar situation in which
the district court vacated a consent decree which it had
previously approved. The consent decree contains injunc-
tive relief in that it required the Forest Service to pro-
vide notice, comment and appeal procedures for a number
of categories of projects and activities. See Donovan,
752 F.2d at 1176 (noting that a consent decree virtually
by definition will contain equitable provisions). Therefore,
similar to Carson, the order by the district court had
the practical effect of refusing an injunction. Moreover,
the same irreparable consequence that was identified by
the Court in Carson is present here as well. The parties
in this case attempted to exercise their right to resolve
their dispute on mutually agreeable terms. In vacating
the consent decree, the court unraveled a compromise
that was the result of negotiations spanning nearly a
year. Moreover, the court’s concern in vacating the order
was not a technical problem that could easily be resolved
by the parties. Instead, the order was premised on the
court’s determination that a third party should be a part
of the negotiation process. Thus, the ability of the original
parties to settle the case was altered, and the presence
of yet another party with adverse interests would force
the parties to begin the entire settlement process anew.
In Carson, the Court emphasized that § 1292(a)(1) should
be available where an appeal would “further the stat-
utory purpose of ‘permitting litigants to effectually chal-
lenge interlocutory orders of serious, perhaps irreparable,
consequence.’ ” 450 U.S. at 996. The rejection of the con-
sent decree can only be effectually challenged at this time.
8 No. 01-1869
The addition of the interests of another party would
make it much more difficult for this court to review this
issue at a later time, when it would be presented either
after a trial, a dispositive motion, or a separate settle-
ment by a different set of parties than the set of parties
to this consent decree. As with the Carson order, the or-
der in this case has the serious, perhaps irreparable con-
sequence of defeating the parties’ ability to settle their
claims, and therefore jurisdiction is present. Moreover,
as in Carson, an independent irreparable consequence
exists in that the consent decree would have established
an appeals process to challenge a number of Forest Ser-
vice actions, and absent the injunctive effect of that de-
cree those actions are unchecked. Those actions include
actions—such as prescribed burnings and the construc-
tion of new routes for off-highway vehicles—that cannot
easily be undone, and the absence of an appeal option
raises the potential for serious, perhaps irreparable conse-
quences.
Therefore, we have jurisdiction to review the order
vacating the consent decree. And, because that order
was necessarily intertwined with the district court’s
conclusion that the Recreational Groups should be able
to intervene, we may review the decision granting inter-
vention as well under the doctrine of pendent jurisdic-
tion. See Greenwell v. Aztar Gaming Corp., 268 F.3d 486,
491 (7th Cir. 2001) (appropriate to exercise pendent juris-
diction where the issues are intertwined and interlocutory
appeal prevents rather than produces piecemeal appeal),
cert. denied, 122 S.Ct. 1790 (2002); Twelve John Does
et al. v. District of Columbia et al., 117 F.3d 571 (D.C. Cir.
1997) (“our pendent appellate jurisdiction encompasses
at least determinations that are inextricably intertwined
with ones over which we have direct jurisdiction”); see
also Jones v. Infocure Corp., 310 F.3d 529, 536-37 (7th
Cir. 2002).
No. 01-1869 9
We consider first the order granting the Recreational
Group’s motion to intervene. Pursuant to Federal Rule of
Civil Procedure 24, intervention may be as of right or it
may be permissive. In order to intervene as of right, the
Recreational Group had to satisfy four requirements: (1) the
application must be timely; (2) “the applicant must claim
an interest relating to the property or transaction which
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 the applicant’s ability
to protect that interest”; and (4) “existing parties must
not be adequate representatives of the applicant’s inter-
est.” Sokaogon Chippewa Community v. Babbitt, 214 F.3d
941, 945-46 (7th Cir. 2000). We also noted in Sokaogon that
“at some fundamental level the proposed intervenor
must have a stake in the litigation.” Id. at 946. A number
of these factors are potentially lacking here, particularly
evidence that the existing parties were not adequate
representatives of the applicant’s interest. See generally
Solid Waste Agency of Northern Cook County v. United
States Army Corps of Engineers, 101 F.3d 503 (7th Cir.
1996).
The parties, however, focus here on the first require-
ment—that the application must be timely. In assessing
whether the timeliness requirement was met, the dis-
trict court first stated that timeliness is not a concern
when the parties have settled their dispute and interven-
tion is for a collateral purpose. The court further declared
that the motion to intervene was filed less than two
weeks after the settlement agreement was entered and
therefore was timely. That holding, however, is erroneous
as a matter of law. First, the intervention sought by the
Recreational Groups is not for a collateral purpose, but
rather is to contest the consent decree on the merits, and
therefore even if we recognized the collateral purpose
argument (see generally Empire Blue Cross and Blue
Shield v. Janet Greeson’s A Place For Us, Inc., 62 F.3d
10 No. 01-1869
1217, 1221 (9th Cir. 1995), and cases cited therein), it
would be inapplicable here. The parties do not contend
otherwise.
Therefore, the Recreational Groups must establish that
their motion is timely. In its brief discussion of timeliness,
the district court noted that the lawsuit was filed on
November 3, 1999, was settled on September 15, 2000, after
repeated extensions of the time to file an answer for
the purpose of settlement negotiations, and the motion to
intervene was filed on September 27, 2000. The court then
stated that “[t]he motion to intervene was filed less than
two weeks after the Settlement Agreement was entered.
Accordingly, the motion to intervene is timely.” Dist. Ct.
Order at 5.
The relevant inquiry in determining timeliness, how-
ever, is not on the time between the settlement and the
motion to intervene, but instead is on the time between the
Recreational Groups’ knowledge that the suit could impact
their interests and the motion to intervene. Prompt filing
of a motion to intervene after the settlement does not
indicate timeliness, particularly where there is evidence
that the intervenor should have known the suit could
impact its interests for some time prior to that settlement.
In fact, as we noted in Sokaogon, “that the prospective
intervenor waited until settlement was imminent strong-
ly suggests that [the prospective intervenor] was not
interested in intervening in the litigation but in blocking
a settlement between the parties—or at a minimum,
this settlement.” 214 F.3d at 948 (emphasis in original).
A prospective intervenor must move promptly to inter-
vene as soon as it knows or has reason to know that its
interests might be adversely affected by the outcome of
the litigation. Id. at 949; United States v. South Bend
Community Sch. Corp., 710 F.2d 394, 396 (7th Cir. 1983). In
determining whether a motion to intervene is timely,
we consider four factors: “(1) the length of time the inter-
No. 01-1869 11
venor knew or should have known of his interest in the
case; (2) the prejudice caused to the original parties by
the delay; (3) the prejudice to the intervenor if the motion
is denied; [and] (4) any other unusual circumstances.”
214 F.3d at 949. The district court failed to apply that
inquiry to the circumstances presented here. Instead of
determining whether the filing of the complaint put the
Recreational Groups on notice that their interests might
be affected, and weighing the prejudice to all parties, the
district court merely examined the time period in which
the Recreational Groups knew that their interests were
affected. Even then, the court engaged in no examination
of the relative prejudice. Accordingly, the case must be
remanded to determine when the Recreational Groups
first knew or should have known that the suit could af-
fect their interests and to weigh the prejudice caused by
the delay against that which would result if interven-
tion were denied. Moreover, if that hurdle is met by the
motion to intervene, the court must then analyze the
remaining factors of intervention as of right. Conclusory
sentences such as “this interest is not adequately repre-
sented by either plaintiffs or defendants,” Dist. Ct. Order at
5, are insufficient for us to identify the reasoning behind
the holdings in order to review them.
The district court alternatively held that permissive
intervention was proper, but that determination is also
problematic. First, permissive intervention similarly is
proper only where the application was timely, and there-
fore the same problem is presented as with the interven-
tion as of right. Moreover, in exercising its discretion to
grant or deny permissive intervention, the court “shall
consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original
parties.” R. 24(b). Again, the district court engaged in no
such inquiry. The court merely acknowledged that the
grant of permissive intervention is discretionary, and
then stated:
12 No. 01-1869
Permissive intervention is appropriate because the
interests raised by the intervenor-applicants involves
questions of law or fact common to the issues to
be resolved in this case. Accordingly, the intervenor-
applicants are also entitled to permissive intervention.
Dist. Ct. Order at 6. Because the court failed to consider
whether intervention would cause undue delay or prej-
udice, the grant of permissive intervention was improper.
Accordingly, the intervention decision must be vacated
and remanded to the district court, and the order vacat-
ing the consent decree must be remanded as well because
it hinges on whether the Recreational Groups are prop-
erly a party to the action. No party defends on appeal the
court’s holding that the consent decree had to be vacated
because the Recreational Groups were a necessary party.
We decline to consider the numerous alternate theories
raised by the parties to support vacating the consent
decree, because the issue is speculative at this point
pending reconsideration of the intervention decision and
because those arguments should be considered by the
district court in the first instance.
The orders of the district court granting intervention and
vacating the consent judgment are vacated, and the case
is remanded for further proceedings consistent with this
opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-14-03