Wolfsen Land & Cattle Co v. Pacific Coast Federation of Fishermen's Associations , 695 F.3d 1310 ( 2012 )

United States Court of Appeals
for the Federal Circuit
__________________________
WOLFSEN LAND & CATTLE COMPANY,
TURNER ISLAND FARMS, INC., WEST TURNER
ISLAND RANCH, LONE WILLOW RANCH,
DONALD C. SKINNER, LYNN W. SKINNER,
LAWRENCE SCOTT SKINNER, THOMAS CLAY
SKINNER, LAUREL LYNN SKINNER, STACIE L.
SKINNER-HANSON, LAWRENCE JOHN WOLFSEN,
MEW VENTURES, ROBERT MUELLER, AND
JOANNE MUELLER,
Plaintiffs-Appellees,
v.
PACIFIC COAST FEDERATION OF FISHERMEN’S
ASSOCIATIONS,
Movant-Appellant,
AND
NATURAL RESOURCES DEFENSE COUNCIL,
Movant-Appellant,
v.
UNITED STATES,
Defendant.
__________________________
2011-5113
__________________________
WOLFSEN LAND & CATTLE CO v. US 2
Appeal from the United States Court of Federal
Claims in case no. 10-CV-580, Chief Judge Emily C.
Hewitt.
__________________________
Decided: September 21, 2012
__________________________
ROGER J. MARZULLA, Marzulla Law, LLC, of Washing-
ton, DC, argued for plaintiff-appellee. With him on the
brief was NANCIE G. MARZULLA.
MICHAEL E. WALL, Natural Resources Defense Coun-
cil, of San Francisco, California, argued for movant-
appellant. On the brief were JENNIFER A. SORENSON. Of
counsel on the brief was PHILIP F. ATKINS-PATTENSON,
Sheppard Mullin Richter & Hampton LLP, of San Fran-
cisco, California. Of counsel were JOHN D. ECHEVERRIA, of
South Royalton, Vermont, and KATHERINE S. POOLE,
Natural Resources Defense Council, of San Francisco,
California.
__________________________
Before DYK, CLEVENGER, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge CLEVENGER.
Concurring opinion filed by Circuit Judge REYNA.
CLEVENGER, Circuit Judge.
This is a takings case arising from the government’s
releases of water from a dam in central California.
Downstream property owners sued in the Court of Fed-
eral Claims, alleging that the releases unlawfully im-
paired their property rights in the water and inundated
their land.
3 WOLFSEN LAND & CATTLE CO v. US
The government had released the water in accordance
with a consent order entered by a district court and
expressly approved by Congress. The consent order was
the result of environmental litigation pursued over a
number of years by certain groups interested in the
ecological fate of the river. After the present lawsuit was
filed, two of these groups moved to intervene as of right,
arguing that this case implicated their interests. The
Court of Federal Claims denied their motion, finding that
the groups’ interests were sufficiently aligned with the
government’s as to create no foundation for intervention.
Wolfsen Land & Cattle Co. v. United States, 98 Fed. Cl.
507 (May 24, 2011) (“Fed. Cl. Op.”). We affirm.
I
A
This case’s story started in 1942, when the U.S. Bu-
reau of Reclamation dammed the upper San Joaquin
River near Friant, California. Friant Dam, which still
operates today, generates electricity and collects water for
agriculture. But it also caused portions of the river below
to dry up, leading to the extermination of Chinook salmon
and other species from areas they had previously occu-
pied, as well as other ecological consequences.
In 1988, a group of plaintiffs sued the federal govern-
ment over the dam’s operation. The Pacific Coast Federa-
tion of Fishermen’s Associations and the Natural
Resources Defense Council (collectively, “PCFFA”) were
among them. They claimed that the dam’s operation
contravened various state and federal environmental
protection laws. For the next eighteen years, the parties
litigated in the district court for the Eastern District of
California.
WOLFSEN LAND & CATTLE CO v. US 4
In 2006, they finally reached a settlement. The
agreement obliged the government to release water from
the dam for the purpose of restoring and maintaining fish
populations downstream, while continuing to support the
surrounding landowners who had come to depend on the
water the dam collected. See Stipulation of Settlement,
Natural Res. Def. Council v. Rodgers, No. CIV SS-88-1658
(E.D. Cal. Sept. 16, 2006), ECF No. 1341 (“Litigation
Settlement”). The Litigation Settlement also bound the
signatories to request implementing legislation from
Congress, as some contemplated actions could not be
taken without legislative authority. Id. ¶ 8. This was
done, and Congress subsequently passed the San Joaquin
River Restoration Settlement Act, Pub. L. No. 111-11,
§§ 10001–10011, 123 Stat. 1349 (2009) (“Settlement Act”),
which authorized and directed the Secretary of the Inte-
rior to implement the Litigation Settlement.
All this having been done, in October 2009 the Bureau
of Reclamation initiated the first release of water from the
dam. Releases have continued since, in accordance with
the Litigation Settlement and the Settlement Act.
B
Those releases gave rise to the present case. In Au-
gust of 2010, Wolfsen Land & Cattle Co., along with other
owners of land downstream of Friant Dam (collectively,
“Wolfsen”), sued the government for taking of property.
Wolfsen argued that the releases impaired its protectable
interest in the released water. It also contended that its
land had been damaged as a result of inundation by the
released water. Wolfsen sought compensation and legal
expenses.
PCFFA moved to intervene as of right under Court of
Federal Claims Rule 24(a)(2). It argued that the case
implicated its interest in full performance of the Litiga-
5 WOLFSEN LAND & CATTLE CO v. US
tion Settlement and under the Settlement Act. PCFFA
presented several lines of reasoning to justify its motion,
but chief was this: judgment for Wolfsen could involve a
ruling that Wolfsen and others in its position had a pro-
tectable property interest in the water released past
Friant Dam. Such an outcome, said PCFFA, would sub-
stantially threaten the government’s ability to make the
water releases contemplated by the Litigation Settlement
and the Settlement Act. As a beneficiary of those instru-
ments, PCFFA claimed a right to participate in proceed-
ings before the Court of Federal Claims.
Wolfsen opposed PCFFA’s motion; the government
neither supported nor opposed. The Court of Federal
Claims denied the motion. Fed. Cl. Op.
PCFFA appealed to this court. Denial of a motion to
intervene is a final judgment and immediately appeal-
able. Stringfellow v. Concerned Neighbors in Action, 480
U.S. 370, 377 (1987). This court has jurisdiction over
final judgments of the Court of Federal Claims. 28 U.S.C.
§ 1295(a)(3).
II
This court has not previously identified the standard
to be applied when reviewing a trial court’s denial of a
motion to intervene as of right. PCFFA argues for de
novo review, while Wolfsen urges review for abuse of
discretion. Both sides cite authority from the regional
circuits, which are split on the question, though slightly
more courts favor de novo review. Compare, e.g., United
States v. Aerojet Gen. Corp., 606 F.3d 1142, 1148 (9th Cir.
2010) (applying de novo review), United States v. Albert
Inv. Co., 585 F.3d 1386, 1390 (10th Cir. 2009) (same), S.
Dakota v. Ubbelohde, 330 F.3d 1014, 1024 (8th Cir. 2003)
(same), Grutter v. Bollinger, 188 F.3d 394, 398 (6th Cir.
1999) (same), Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th
WOLFSEN LAND & CATTLE CO v. US 6
Cir. 1994) (same), and Nissei Sangyo Am., Ltd. v. United
States, 31 F.3d 435, 438 (7th Cir. 1994) (same), with
Geiger v. Foley Hoag LLP Ret. Plan, 521 F.3d 60, 64 (1st
Cir. 2008) (applying abuse of discretion review), Person v.
N.Y. State Bd. of Elections, 467 F.3d 141, 144 (2d Cir.
2006) (same), Brody v. Spang, 957 F.2d 1108, 1115 (3d
Cir. 1992) (same), and In re Sierra Club, 945 F.2d 776,
779 (4th Cir. 1991) (same).
We find it unnecessary to reach this question, as we
see no error in the Court of Federal Claims’ judgment. Cf.
Am. Mar. Transp., Inc. v. United States, 870 F.2d 1559,
1561 (Fed. Cir. 1989) (finding no need to reach this issue
in similar circumstances). We would affirm under both
proposed standards of review. Because the question of
the standard to apply is non-dispositive, we need not
address it.
III
A
The Court of Federal Claims’ rule concerning inter-
vention as of right states:
(a) Intervention of Right. On timely motion, the
court must permit anyone to intervene who:
...
(2) claims an interest relating to the property
or transaction that is the subject of the action,
and is so situated that disposing of the action
may as a practical matter impair or impede
the movant’s ability to protect its interest,
unless existing parties adequately represent
that interest.
Fed. Cl. R. 24(a).
7 WOLFSEN LAND & CATTLE CO v. US
These requirements are construed in favor of inter-
vention. Am. Mar. Transp., 870 F.2d at 1561. The rule
sets out a four-part test. First, the motion must be
timely. Second, the movant must claim some interest in
the property affected by the case. This interest must be
“legally protectable”—merely economic interests will not
suffice. Id. at 1562. Third, that interest’s relationship to
the litigation must be “of such a direct and immediate
character that the intervenor will either gain or lose by
the direct legal operation and effect of the judgment.” Id.
at 1561. Fourth, and most importantly for this case, the
movant must demonstrate that said interest is not ade-
quately addressed by the government’s participation. Id.
at 1560.
B
In this appeal, timeliness is not disputed. But in de-
nying PCFFA’s motion the Court of Federal Claims held
that PCFFA could not satisfy Rule 24(a)(2)’s other three
requirements.
First, the court held that PCFFA had failed to show a
direct, non-contingent interest in this case. Fed. Cl. Op.,
98 Fed. Cl. at 512–15. It reasoned that the only direct
result of judgment for Wolfsen in this case would be the
government paying money damages. Any collateral
rulings (i.e., a determination that Wolfsen had a protect-
able interest in the released water) would implicate
PCFFA only secondarily, and thus were not the kind of
interests protected by the rule. Because we resolve this
appeal on other grounds, we need not reach this aspect of
the Court of Federal Claims’ reasoning.
Second, the court held that even if PCFFA had alleged
a protectable interest, the interest did not relate to this
case in such a way that failure to permit intervention
would impede PCFFA’s ability to protect itself. The court
WOLFSEN LAND & CATTLE CO v. US 8
pointed out that if, in the aftermath of judgment in this
case, the government failed to meet its obligations to
PCFFA, PCFFA could seek relief in district court. Id. at
515. Again, because we resolve this appeal on other
grounds we need not take up this argument.
Third, the court held that even if PCFFA had a pro-
tectable interest, and even if that interest related to this
case in the manner contemplated by the rule, PCFFA’s
interests were adequately protected by the government’s
participation in this case. Id. at 516. As set forth below,
we agree, and on that basis affirm.
C
The burden of showing inadequacy of representation
is “minimal,” requiring only a showing that an existing
party’s representation of PCFFA’s interests “may be”
inadequate as to some aspect of the case at bar. Trbovich
v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)
(permitting intervention by a union member notwith-
standing participation of the Secretary of Labor because
the Secretary’s twin duties to represent both the ag-
grieved member and the public generally might engender
an adversity of interest). This court has not frequently
considered the law surrounding intervention as of right,
nor has it assessed the showing required for a prospective
intervenor to carry his “minimal” burden of proving
inadequate representation by any existing party. In such
circumstances, the decisions of regional circuits, while not
binding, are nevertheless “persuasive authority and
instructive.” Bank of Guam v. United States, 578 F.3d
1318, 1326 n.4 (Fed. Cir. 2009).
The Ninth Circuit recently considered how to analyze
adequacy of representation:
9 WOLFSEN LAND & CATTLE CO v. US
In evaluating adequacy of representation, we ex-
amine three factors: (1) whether the interest of a
present party is such that it will undoubtedly
make all of a proposed intervenor’s arguments; (2)
whether the present party is capable and willing
to make such arguments; and (3) whether a pro-
posed intervenor would offer any necessary ele-
ments to the proceeding that other parties would
neglect. Arakaki v. Cayetano, 324 F.3d 1078, 1086
(9th Cir. 2003). The most important factor in as-
sessing the adequacy of representation is how the
interest compares with the interests of existing
parties. If an applicant for intervention and an
existing party share the same ultimate objective,
a presumption of adequacy of representation
arises. League of United Latin Am. Citizens v.
Wilson, 131 F.3d 1297, 1305 (9th Cir. 1997). To
rebut the presumption, an applicant must make a
“compelling showing” of inadequacy of representa-
tion. Arakaki, 324 F.3d at 1086.
Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647
F.3d 893, 898 (9th Cir. 2011) (internal quotation marks
omitted and citations edited). Other regional circuits
have embraced similar approaches. E.g., San Juan Cnty.
v. United States, 503 F.3d 1163, 1187 (10th Cir. 2007);
Jones v. Prince George’s Cnty., 348 F.3d 1014, 1019 (D.C.
Cir. 2003); Maine v. U.S. Fish & Wildlife Serv., 262 F.3d
13, 19–20 (1st Cir. 2001); Jenksin ex rel. Jenkins v. Mis-
souri, 78 F.3d 1270, 1275 (8th Cir. 1996); Meyer Goldberg,
Inc. of Lorain v. Goldberg, 717 F.2d 290, 292 (6th Cir.
1983). We therefore join those courts in adopting such a
framework for this case. To merit intervention as of right,
PCFFA has the burden to make a compelling showing
that its interests may not be adequately protected by the
government insofar as there are aspects of the case that
WOLFSEN LAND & CATTLE CO v. US 10
the government might not—or might not be able to—
pursue to their fullest. In addition, PCFFA must over-
come the presumption that the government as sovereign
adequately represents the interest of citizens concerning
matters that invoke “sovereign interests.” See Standard
Heating & Air Conditioning Co. v. City of Minneapolis,
137 F.3d 567, 572 (8th Cir. 1998).
In its briefing and argument, PCFFA alleges two
categories of interests implicated by Wolfsen’s claim.
1
First, PCFFA argues that the Court of Federal
Claims, in adjudicating Wolfsen’s claim, might render
some ruling making robust implementation of the Litiga-
tion Settlement either practically or totally impossible. In
this case Wolfsen alleges, inter alia, a legal right to some
of the water the government released. We perceive no
dispute that a judicial order to that effect, if made, would
complicate the government’s plans to release water past
Friant Dam. If Wolfsen has a protectable interest in the
released water, PCFFA reasons that so might other
nearby landowners. The government could find itself
unable to release water in the quantities necessary to
effectuate the goals of the Litigation Settlement (e.g.,
ecological restoration) without rights from these unnamed
persons, some of whom might be unwilling to sell at a
reasonable price. PCFFA further points out that both the
Litigation Settlement and the Settlement Act bar the
government from using eminent domain to acquire water
rights for the releases. See Litigation Settlement ¶ 13
(stating that the government shall acquire water rights
from willing sellers); Settlement Act § 10004(a)(3) (au-
thorizing acquisition of water rights provided that “such
acquisitions shall only be made from willing sellers and
not through eminent domain”). PCFFA expresses concern
11 WOLFSEN LAND & CATTLE CO v. US
that the government might conduct itself in such a way as
to technically comply with the Litigation Settlement,
while undermining its substance and frustrating its goals.
These concerns do not demonstrate any cognizable
reason why PCFFA’s participation in this case is, or even
may be, necessary. As to this case, the government and
PCFFA have precisely the same motivation, which is to
see Wolfsen’s claim fail, for as many reasons as possible.
It is, after all, the government who would be liable for
money damages if Wolfsen’s claim succeeds. And even if
PCFFA’s fears are realized, and Wolfsen’s claim is con-
firmed, it is the government that would be caught be-
tween the rights of landowners and the terms of the
settlement. We cannot see—and PCFFA has not shown—
any reason why the government would not defend against
Wolfsen’s claim to the utmost, just as PCFFA would do
were it a party.
PCFFA’s arguments to the contrary are unavailing.
While acknowledging that it and the government share a
litigation goal—defeat of Wolfsen’s claim—PCFFA argues
that any presumption of adequate representation is
rebutted by its history of litigation against the govern-
ment concerning Friant Dam. PCFFA argues that the
government was “recalcitrant” during that litigation and
refused to accept the validity of PCFFA’s arguments.
“But for [PCFFA’s] litigation,” it argues, “the United
States would never have commenced the water releases
over which the Wolfsen Plaintiff’s now sue.” Id. at 39.
PCFFA also urges that the government departs from
PCFFA’s interests in two respects: first, the government
wants to avoid financial liabilities that PCFFA does not
face, and second, the government as sovereign must
implement the Settlement Act “in a way that is respon-
sive to an array of competing concerns,” while PCFFA
does not share that duty.
WOLFSEN LAND & CATTLE CO v. US 12
But even if we accept all these assertions, they do not
convey any reason to expect that this litigation would
proceed differently with PCFFA as a party than without.
Neither its past litigation history, its financial stake in
this case, nor its obligations as sovereign make the gov-
ernment any less motivated to contest Wolfsen’s claim
than PCFFA is. PCFFA has shown no argument that the
government would leave aside but PCFFA would not, or
any reason to believe the government would be unwilling
to pursue some theory that PCFFA would pursue in order
to defeat Wolfsen’s claim. Because it can show no diver-
gence in either motivations or approaches between itself
and the government as to this case, PCFFA has also failed
to overcome the presumption that the government as
sovereign can adequately represent its interests. It cites
cases in which the government’s preferred outcome for a
case differed (or might differ) from that of the intervenor.
See generally South Dakota v. Ubbelohde, 330 F.3d 1014,
1025 (8th Cir. 2003); Sierra Club v. Espy, 19 F.3d 1202,
1208 (5th Cir. 1994). As already discussed, that is not the
case here. We cannot see how the government would
prefer Wolfsen to prevail (and to take money damages) in
whole or in part. The government’s goal matches
PCFFA’s goal identically.
This case illustrates why entry into a case is pre-
sumptively barred for an intervenor whose specific litiga-
tion goals identically match those of an existing party.
PCFFA has not demonstrated that its participation could
add some material aspect to the case beyond what is
already present. In such circumstances, denial of inter-
vention will conserve scarce judicial resources with no
danger to the movant’s legal rights or interests. We of
course do not suggest that the government must always
be viewed an as adequate spokesman for an interested
private litigant. Whether such is so in a given case de-
13 WOLFSEN LAND & CATTLE CO v. US
pends on the facts of the case. Here, PCFFA has not yet
shown anything that it would add in defense of the suit
beyond what the government will offer.
2
PCFFA also identifies a second danger posed by the
Wolfsen lawsuit. PCFFA worries that the case might
provoke a private settlement that affects the govern-
ment’s ability to fully meet the requirements of the Liti-
gation Settlement and Settlement Act. But even
assuming arguendo that a Wolfsen settlement could affect
PCFFA’s rights or interests in the water releases contem-
plated by its own settlement, such a concern does not
support PCFFA’s argument for intervention at this time.
PCFFA’s specific concern is that in order to achieve
settlement the government might bind itself to either not
release further water from Friant Dam or to reclassify
released water in such a way as to frustrate the goals of
the Litigation Settlement.
PCFFA acknowledges that intervention, even if
granted, would not bestow on it any authority over the
settlement negotiations, or to force the inclusion or exclu-
sion of any specific terms. PCFFA argues that it should
be allowed to intervene so that in the event Wolfsen or the
government moved for express judicial approval of their
settlement (e.g., as a consent decree), PCFFA could review
the motion and voice any concerns to the court. 1 PCFFA
acknowledges that it would have no right to veto such a
1 At oral argument, Wolfsen asked whether that the
Court of Federal Claims, as a tribunal of limited jurisdic-
tion and authority, would even possess the power to enter
a consent order purporting to retain jurisdiction over the
settling parties’ future conduct. This question, while
thought-provoking, is speculative as to this appeal, and
we decline to opine on it.
WOLFSEN LAND & CATTLE CO v. US 14
settlement, only to raise objections. Local No. 93, Inter-
national Association of Firefighters v. City of Cleveland,
478 U.S. 501, 528–29 (1986). PCFFA also argues that, if
it were allowed to intervene, it could argue that the court
should disapprove the settlement and refuse to dismiss.
See Fed. Cl. R. 41(a) (stating that if dismissal is not
stipulated to by “all parties who have appeared,” “an
action may be dismissed . . . only by court order, on terms
that the court considers proper”). But these concerns are
at this point speculative and cannot justify intervention
unless and until there is such a settlement.
PCFFA also argues that it should be permitted to in-
tervene now so that it would receive early warning of
what it might consider a bad settlement in this case. But,
like the Court of Federal Claims, we conclude that this
desire is insufficient to create a right of intervention
under Rule 24(a).
We also note that by this appeal Wolfsen, the gov-
ernment, the Court of Federal Claims, and this court have
all been apprised that any settlement seeming to impair
full performance of the Litigation Settlement is likely to
engender further litigation. In that light, we assume the
parties will apprise PCFFA of any pending settlement
implicating future releases of water past Friant Dam or
the ecological goals that were at stake in the district court
litigation.
Finally, we read the Court of Federal Claims’ denial of
intervention as entered without prejudice to a possible
future motion. Should a proposed settlement reveal some
basis for arguing that the government may not ade-
quately represent some PCFFA interest, PCFFA can seek
to intervene at that time, and the Court of Federal Claims
can then determine whether PCFFA meets the tests for
15 WOLFSEN LAND & CATTLE CO v. US
intervention as of right. We express no view on the
merits of any such later motion to intervene as of right.
IV
For the reasons stated above, the judgment of the
Court of Federal Claims is affirmed.
AFFIRMED
United States Court of Appeals
for the Federal Circuit
__________________________
WOLFSEN LAND & CATTLE COMPANY,
TURNER ISLAND FARMS, INC., WEST TURNER
ISLAND RANCH, LONE WILLOW RANCH,
DONALD C. SKINNER, LYNN W. SKINNER,
LAWRENCE SCOTT SKINNER, THOMAS CLAY
SKINNER,LAUREL LYNN SKINNER, STACIE L.
SKINNER-HANSON, LAWRENCE JOHN WOLFSEN,
MEW VENTURES, ROBERT MUELLER, AND
JOANNE MUELLER,
Plaintiffs-Appellees,
v.
PACIFIC COAST FEDERATION OF FISHERMEN’S
ASSOCIATIONS,
Movant-Appellant,
AND
NATURAL RESOURCES DEFENSE COUNCIL,
Movant-Appellant,
v.
UNITED STATES,
Defendant.
__________________________
2011-5113
__________________________
WOLFSEN LAND & CATTLE CO v. US 2
Appeal from the United States Court of Federal
Claims in case no. 10-CV-580, Chief Judge Emily C.
Hewitt.
__________________________
REYNA, Circuit Judge, concurring.
I concur that the district court did not err in denying
PCFFA’s motion to intervene as a matter of right. I write
separately because I do not agree that the United
States—which opposed PCFFA for years in related litiga-
tion—can be presumed to adequately represent PCFFA in
this case.
I. The Majority Creates an Artificial Bar for
Intervention
The majority correctly starts from the principles that
we construe Rule 24 in favor of intervention and that the
burden of showing inadequacy of representation is mini-
mal. Majority Op. at 7. However, the opinion steadily
distances itself from these principles, and fails to return
to them in the final analysis. Instead, the opinion adopts
a presumption that representation is adequate when an
existing party “shares the same ultimate objective,” and
that this presumption can only be overcome by “a ‘compel-
ling showing’ of inadequacy of representation.” Majority
Op. at 9. Ultimately, the majority concludes that “entry
into a case is presumptively barred for an intervenor
whose specific litigation goals identically match those of
an existing party.” Majority Op. at 12.
I agree that the Ninth Circuit did employ a “compel-
ling showing” standard in Citizens for Balanced Use v.
Montana Wilderness Association. 647 F.3d 893, 898 (9th
Cir. 2011). But, our opinion today relies on a belief that
the burden imposed by that standard is quite high. It is
3 WOLFSEN LAND & CATTLE CO v. US
not. Indeed, a high burden would be contrary to Supreme
Court precedent, as well as the general principle that
intervention is favored. See Trbovich v. United Mine
Workers, 404 U.S. 528, 538 n.10 (1972) (“[Rule 24] is
satisfied if an applicant shows that representation of his
interest ‘may be’ inadequate; and the burden of making
that showing should be treated as minimal.”); American
Mar. Transp., Inc. v. United States, 870 F.2d 1559, 1561
(Fed. Cir. 1989) (noting that “the requirements [of Rule
24] are to be construed in favor of intervention” but
concluding that Rule 24 could not be satisfied by indirect
and contingent interests).
Consistent with Trbovich’s statement that the burden
of showing inadequacy of representation is “minimal,” the
circuit courts that have applied this presumption have
not—despite the “compelling showing” language—held
prospective intervenors to a very high burden. For exam-
ple, although the intervenor in Citizens for Balanced Use
was able to overcome the presumption of adequate repre-
sentation by showing that the U.S. Forest Service was
actively opposing the intervenor on the same interests in
a separate appeal, the court gave examples of several
cases where it had “concluded that the ‘inadequacy of
representation’ prong was met in analogous factual cir-
cumstances on substantially weaker showings.” 647 F.3d
at 899 (emphasis added). These showings were quite
similar to the facts of the instant case. Similarly, in
Maine v. U.S. Fish & Wildlife Service, the court recog-
nized that “there is danger in a mechanistic application”
of the presumption, and that “‘[p]resumption’ means no
more in this context than calling for an adequate explana-
tion as to why what is assumed—here, adequate repre-
sentation—is not so.” 262 F.3d 13, 19 (1st Cir. 2001).
The compelling showing standard adopted by the ma-
jority makes it more difficult for parties to intervene and
WOLFSEN LAND & CATTLE CO v. US 4
presents an effective bar to intervention in many cases.
However, the opinion does not mention or discuss how the
cases from which this compelling showing requirement
was drawn have tempered that language. And although
the majority begins with the more deferential standard
from Trbovich, it ends with the exclusionary language—
not previously used by any court, and more demanding
than the cases the opinion relies upon—that intervenors
are “presumptively barred” when an existing party shares
identical “litigation goals.” I disagree with this result,
which will lock out litigants who deserve their day in
court.
Additionally, the majority employs a presumption
that the government adequately represents the interests
of citizens concerning matters that invoke sovereign
interests to summarily dismiss PCFFA’s argument that
the government must balance multiple competing inter-
ests. Majority Op. at 12. But the majority does not
identify what government interest is the sovereign inter-
est in this case, nor does it identify PCFFA’s interests.
Instead, it concentrates on whether Wolfsen will prevail
in its suit to obtain a money judgment. At best, the
majority has confused litigation goals with legal interests;
at worst, it has unnecessarily introduced a new presump-
tion into our cases, raising an additional bar against
intervention in cases in which the government is a party.
II. Litigation Goals Versus Legal Interests
Rule 24(a)(2) allows parties to intervene if they have
an interest in the subject of the action. The majority has
confused the distinction between a party’s legal interests
in the subject of an action (which the majority also refers
to as “motivations”) and a party’s litigation goals in the
prosecution or defense of an action. But the distinction is
critical. As Citizens for Balanced Use recognized, the
5 WOLFSEN LAND & CATTLE CO v. US
most important factor in assessing adequacy of represen-
tation is the parties’ interests. 647 F.3d at 898. In Trbo-
vich, the interests were enforcing union member rights
and protecting the public’s interest in assuring free and
democratic union elections. In Citizens for Balanced Use,
the intervenor’s interest was in preserving the wildlife
character of a forest. Here, PCFFA’s interest is in ecologi-
cal conservation, as well as any legal interest it obtained
in the water by virtue of the settlement.
Litigation goals are an entirely separate concept.
PCFFA’s litigation goal, as well as that of the United
States, is to defeat Wolfsen and win the lawsuit. In other
contexts, litigations goals are tactical, i.e., advancing
certain arguments or winning specific motions. The cases
have generally observed that differing litigation goals do
not rise to the level of inadequate representation. See,
e.g., Citizens for Balanced Use, 647 F.3d at 899 (distin-
guishing parties’ ultimate objectives from their litigation
goals); Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir.
2003) (same).
Given that differing interests render representation
inadequate but differing litigation goals may not, it is
important to analyze these two related concepts with care.
The majority opinion fails to accomplish this. The major-
ity finds that two categories of interests are implicated.
Majority Op. at 10. The first of these is PCFFA’s interest
in enforcing the settlement. In rejecting PCFFA’s conten-
tion that the Untied States will not adequately represent
its interests with respect to the settlement, the majority
asserts that “the government and PCFFA have precisely
the same motivation, which is to see Wolfsen’s claim fail,
for as many reasons as possible.” Majority Op. at 11.
This does not describe a legal interest as contemplated by
Rule 24, but rather a litigation goal as determined in the
parties’ tactical room. In fact, the majority devotes sig-
WOLFSEN LAND & CATTLE CO v. US 6
nificant effort to setting forth in detail how PCFFA’s
interests differ from those of the government. But the
majority opinion dismisses those differences because they
do not “make the government any less motivated to
contest Wolfsen’s claim than PCFFA is.” Majority Op. at
12. This analysis demonstrates the majority’s confusion
of a litigation goal—defeating Wolfsen—with the interests
of the parties.
The second interest identified by the majority is
PCFFA’s concern that the parties might reach a settle-
ment that adversely affects its interests. To the extent
that this interest implicates adequacy of representation,
there is no escaping that in the previous eighteen years of
litigation, the government and PCFFA have had different
interests, even if they now share a goal to comply and to
enforce compliance with the settlement. The majority,
however, ignores the years of contentious litigation be-
tween PCFFA and the government, apparently under the
presumption that the interests evaporated when the
settlement was reached. It is unreasonable to believe
that any settlement between Wolfsen and the government
would necessarily safeguard or advance PCFFA’s interest.
Although PCFFA could not as a party in this case prevent
the government from settling with Wolfsen, and although
PCFFA’s remedy to any breach of the settlement might
best be obtained in another suit, limited intervention
would allow PCFFA to alert the court to any aspects of a
proposed settlement that are inconsistent with the Set-
tlement Agreement or Settlement Act and its interests.
The majority recognizes that the settlement agree-
ment requires the government to balance competing
goals, but reasons that the government will adequately
represent PCFFA because both parties desire Wolfsen’s
defeat. It therefore concludes that “[s]hould a proposed
settlement reveal some basis for arguing that the gov-
7 WOLFSEN LAND & CATTLE CO v. US
ernment may not adequately represent some PCFFA
interest, PCFFA can seek to intervene at that time . . . .”
Majority Op. at 14. By its own terms, this statement
recognizes that the association’s interests may not be
adequately represented by the government. That is all
that Rule 24 requires.
III. Immediacy of Interest and Impairment
The nature of PCFFA’s interests, as well as any im-
pairment to those interests, is addressed by the second
and third prongs of Rule 24(a), which collectively provide
a more appropriate way to resolve this case. Approaching
the prongs in the order presented by Rule 24 is more
analytically clear and I believe it to be the only correct
way to proceed with a right to intervene analysis.
The second prong of Rule 24(a) requires the court to
identify PCFFA’s interests in this case. 1 An examination
of PCFFA’s interests in upholding the settlement reveals
two separate and potentially conflicting goals: restoring
and maintaining fish populations (the “restoration goal”)
and reducing or avoiding adverse water supply impacts
that may result from releases of water dictated by the
settlement (the “water management goal”). Identifying
the nature of PCFFA’s legal interests under Rule 24(a)
places the discussion under prongs three and four of
whether PCFFA’s interests are speculative and whether
the government’s representation is adequate in its proper
context.
The third prong requires the court to determine
whether the interests identified in prong two will be
directly and immediately impaired by the outcome of the
case. PCFFA’s interests would have been directly impli-
1 There is no dispute that the first prong, time-
liness of the motion, is satisfied.
WOLFSEN LAND & CATTLE CO v. US 8
cated had Wolfsen filed suit to enjoin the government
from releasing water. But it is less clear that PCFFA’s
interests in either the restoration goal or the water man-
agement goal will be directly impaired if the government
is exposed only to a money judgment. Given that Con-
gress has required the government to implement the
settlement agreement, a conclusion that the prospects of a
money judgment would make the government less likely
to release water according to the terms of the agreement
would be speculation. Similarly, the argument that a
money judgment would cause other parties to file similar
suits in the future, thus increasing the likelihood that the
government would decide not to release water in order to
avoid payouts, is hypothetical. Because I believe that any
impairment to PCFFA’s interests is simply too speculative
to support intervention, see Am. Mar. Transp., 870 F.2d at
1561, I agree that the correct result is to affirm the Court
of Federal Claims.