By BlueRibbon Coalition
BOISE, ID - Last week the Ninth Circuit Court of Appeals announced an historic decision to abandon its so-called "federal defendant" rule. The rule categorically prohibited private parties, as well as state and local governments, from intervening of right on the merits of claims brought under the National Environmental Policy Act (NEPA).
Paul Turcke, who argued the case and has long served as lead counsel for the BlueRibbon Coalition's Legal Program, said, "The decision will positively affect all nonfederal interests who rightfully seek a meaningful role in public lands litigation affecting them. These positive effects extend, ironically, to the preservation groups who opposed our intervention here and provided the foundation and fuel for this appeal."
The decision follows an en banc hearing of the Court held on Dec. 13, 2010. The underlying case was originally brought in the U.S. District of Idaho when The Wilderness Society and Prairie Falcon Audubon, Inc. sued the Forest Service seeking greater restriction on motorized vehicle access to the Minidoka Ranger District in the Sawtooth National Forest. The BlueRibbon Coalition, the Magic Valley Trail Machine Association and the Idaho Recreation Council were denied intervention on the side of the Forest Service in that case. The district court determined, in large part, that intervention was prevented by the Federal Defendant Rule.
The recreation groups appealed the decision with initial arguments presented in March of 2010 to a three-judge Ninth Circuit panel by Turcke and the Western Environmental Law Center. Rather than issuing a decision, the three-judge panel asked for further briefing on the question of whether the Court should convene en banc to consider abandoning the Federal Defendant Rule. In September, the Court issued an order to hear the appeal en banc.
In addition to the recreation groups, 37 other parties filed "friend of the court" briefs on the issue-including conservation, recreation, commercial groups, state and local governments, Indian tribes, regional water authorities and the federal government.
The underlying case remains pending in the District of Idaho. The decision marks the elimination of the Federal Defendant Rule, offers guidance on the proper test for intervention in NEPA cases, and remands the matter to the District Court "to consider anew" the Recreation Groups' motion.