Giving a hoot about an owl does not satisify the interest requirement for intervention: The misapplication of intervention as of right in Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. Development of the Interior

Brigham Young University Law Review, 1998 by Coffey, Rodrick J

I. INTRODUCTION

Federal Rule of Civil Procedure (FRCP) 24(a)(2) defines the interest requirement that is necessary in order for an applicant to intervene as of right in pending litigation.1 The interpretation of that interest requirement has been the subject of great dispute within the federal courts. Unfortunately, the Supreme Court has not offered much guidance in this area, and the few Supreme Court cases that are directly on point are vague and have led to the development of conflicting rules between the various federal appellate courts. Some circuits require that potential intervenors satisfy the Constitution's Article III standing requirements,2 while others have suggested that an intervenor need only satisfy a significantly lesser requirement,3 including in some cases, a mere political interest in the subject matter of the suit.4 The remaining circuits fall somewhere in between these two poles.5

Although every circuit claims to require that the proposed intervenor have a legally protected interest,6 there is a discrepancy between the circuits as to what constitutes a "legally protected interest." The case of Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. Department of the Interior7 is a prime example of a federal circuit court allowing an applicant to intervene as of right with substantially less than a true legally protected interest. Counties for Stable Growth and the conflict between the circuits illustrates why the Supreme Court should provide a clearer definition of what constitutes a protected interest under FRCP 24 (a)(2). Although the Supreme Court has not specifically defined the meaning of "protected interest," some of the Court's decisions indicate that the Tenth Circuit's standard in Counties for Stable Growth is too permissive.8

Part II of this Note discusses the background of this issue, including other circuits' rulings in intervention cases that conflict with the holding in Counties for Stable Growth and Supreme Court cases that are on point, including the Court's recent decision indicating that the Court is moving towards requiring Article III standing for intervenors. Part III examines the facts and the Tenth Circuit's reasoning in Counties for Stable Growth. Part IV analyzes this case and concludes that Article III standing is the appropriate standard for determining whether a potential intervenor has a sufficient interest in the pending litigation to intervene as of right, and that the proposed intervenor in Counties for Stable Growth did not have a sufficient legally protected interest in the case and should not have been permitted to intervene because the applicant failed to satisfy any of the three requirements9 necessary for an applicant to intervene as of right. Furthermore, the Tenth Circuit's standard for determining whether an applicant has a sufficient interest in the litigation to intervene is not the correct standard the federal courts should employ because the Tenth Circuit's liberal leniency may violate the Constitution. Finally, it allows too many applicants to intervene as of right, putting an unmanageable strain on the judicial system.

II. BACKGROUND

FRCP 24(a)(2) permits intervention as of right:

[W]hen 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.lo

Courts generally use a three part test for determining whether an applicant should be permitted to intervene as of right in federal courts.11 First, the applicant must have an interest in the litigation. This interest requirement is the subject of the current debate between the federal appellate courts because it is not specifically defined by Rule 24 or Supreme Court precedent. Second, a ruling that is adverse to the applicant must impair or impede the applicant's ability to protect the interest. Third, the applicant's interest must not be adequately represented by the existing parties. All three of these requirements are necessary in order for an applicant to intervene as of right.12

Even before intervention becomes an issue, Article III of the United States Constitution limits the jurisdiction of federal courts to "Cases" and "Controversies."13 A plaintiff wishing to bring an action in federal court must have Article III standing.14

One must satisfy three requirements in order to have Article III standing. First, the plaintiff must have suffered "an `injury in fact'-an invasion of a legally protected interest which is concrete and particularized, and `actual or imminent,' not 'conjectural' or `hypothetical.'"" Second, the injury must be "fairly traceable" to the conduct of the defendant.ls Third, it must be "likely" that the alleged injury will be redressed by a favorable adjudication.l7 Because Article III standing is the standard for determining whether a plaintiff may bring a cause of action in federal court, some courts have suggested that intervenors should have to satisfy that standard as well.18