Alaska Forest Ass'n v. U.S. Department of Agriculture

Dissenting.

I respectfully dissent. I would dismiss this appeal. The intervenors (“the Sierra Club”) appeal from the grant of summary judgment in favor of the plaintiffs. After final judgment was entered, but before the time expired for the United States Department of Agriculture to file an appeal, the Sierra Club filed a motion to intervene as a matter of right pursuant to Rule 24(a) of the Federal Rules of Civil Procedure. The Sierra Club also requested intervention pursuant to Rule 24(b) of the Federal Rules of Civil Procedure. The motion states: “If this Court denies Applicants’ motion for intervention as of right, Applicants should be allowed to intervene permissibly.” The Sierra Club submitted a proposed order for the district court’s signature which reads as follows:

(Emphasis added). The district court signed the order submitted by the Sierra Club. In the proposed order, the Sierra Club did not refer to its alternative suggestion that it “should be allowed to intervene permissibly.” Thus, the Sierra Club appears to have abandoned its request for permissive intervention pursuant to Rule 24(b) because it failed to include language in its proposed order granting permission…

MEMORANDUM *

This is a NEPA case. The plaintiffs won their case, and the defendant (the federal government) elected not to appeal the final judgment. Before the time to appeal expired, however, the private intervenors moved in the district court to intervene as a matter of right under Federal Rule of Civil Procedure 24(a); in the alternative, if the court denied that motion, the intervenors asked for permissive intervention under Rule 24(b). The district court granted the main motion under Rule 24(a) and, therefore, did not reach the alternative request for permissive intervention. The intervenors appealed on the merits. Their appeal can proceed only if they have standing; otherwise, the appeal on the merits must be dismissed.

In Kootenai Tribe v. Venenan, 313 F.3d 1094 (9th Cir.2002), we held that private intervenors may not intervene in a NEPA action under Rule 24(a) as a matter of right. That holding applies with equal force here. Thus, the district court’s ruling under Rule 24(a) was erroneous.

We also held in Kootenai, however, that in some circumstances permissive intervention may be allowed. Id. at 1108-14. The district court did not reach this issue, but the issue was…