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

1. Supreme Court precedent strongly indicates that Article III standing is the proper standard

In the first Supreme Court case dealing with the issue of the interest requirement for intervention, the Court held that the interest requirement stated in FRCP 24(a)(2) was a "significantly protectable interest," which the Court defined as an interest that the applicant could claim during a trial.56 Such an interest is analogous to the interest required for Article III standing.57 A few years later, in Diamond v. Charles,5s the Court held that in order to appeal a lower federal court decision, any appellant must have Article III standing.59 Because of this requirement, a physician in Diamond who sought to appeal a lower court decision regarding an Illinois abortion law as an intervenor was denied the right to appeal because he lacked Article III standing.so The implication of Diamond is that while the intervenor can have all of the rights of a party to the action at the trial level, he cannot appeal unless he has Article III standing.61

Recently, in the case of Arizonans for Official English v. Arizona,62 the Supreme Court reiterated its holding in Diamond. The Court stated, aIS]tanding to defend on appeal in the place of an original defendant, no less than standing to sue, demands that the litigant possess 'a direct stake in the outcome.' "63 However, the Court in Arizonans interpreted Diamond to mean even more. It stated that "[t]he standing Article III requirements must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance."64 The most notable segment of that statement is the reference to "persons appearing in courts of first instance," because that phrase, on its face, encompasses intervenors as well as parties to the action. The logical implication of this statement is that intervenors must have Article III standing. This indicates that the federal appellate courts that have already required Article III standing for potential intervenors have established the correct standard, while the other circuits, including the Tenth Circuit, that have established more lenient standards have interpreted Diamond too liberally, and therefore, incorrectly.65

The holding in Arizonans is particularly significant because the Supreme Court had not expressly addressed the interest requirement of FRCP 24(a)(2) since its holding in Diamond. Because the Court has now indicated that Diamond may stand for the proposition that intervenors must have Article III standing to intervene, cases that allow intervention as of right with a showing of an interest less than that prescribed by Article III may be struck down in the future. This supports the argument against the Tenth Circuit's decision in Counties for Stable Growth.ss Given the Supreme Court's holding in Arizonans, it is likely that Article III standing will be the basis for establishing that an applicant for intervention as of right has satisfied the interest requirement.