Trashing the presumption: intervention on the side of the government.

• Author: Black, Kathy

1. INTRODUCTION II. INTERVENTION: RULE 24 OF THE FEDERAL RULES OF CIVIL PROCEDURE III. MINIMAL BURDEN TEST: THE TRBOVICH CASE IV. ORIGINS OF THE PARENS PATRIAE DOCTRINE V. TRASHING THE PRESUMPTION A. The Presumption Rests on Shaky Precedent B. The Presumption Is Inappropriate for the Modern Federal Administrative State 1. The Presumption Is Rendered Irrelevant when Economic Interests Are Threatened 2. The Presumption Leads to Inconsistent Judgments when Environmental Interests Are Threatened 3. Adequate Representation by the Government Is Impossible in Some Situations 4. Political Realities Impact Administrative Policies 5. Political Realities Impact Judicial Decisions 6. A Novel Approach Shows Potential but Fails to Protect Intervenors 7. Sixth Circuit Rejects Parens Patriae VI. CONCLUSION I. INTRODUCTION

   Intervention as a matter of right under Rule 24 of the Federal Rules of Civil Procedure (Rule 24) provides environmental groups a path to protect aesthetic and conservation interests threatened by existing litigation. (1) Courts typically construe Rule 24 liberally in favor of intervention, recognizing efficiency gains from single-proceeding dispute resolution and improved decision quality from optimal information availability. (2) Congress may confer statutory intervention of right, (3) but more commonly, Rule 24 offers proposed intervenors an opportunity to join existing litigation to protect interests facing possible impairment. (4) The proposed intervenor must show a "direct, substantial, and legally protectable" (5) interest that "may as a practical matter" suffer impairment from the existing litigation. (6) When the proposed intervenor establishes a sufficient interest and possible impairment to that interest, a motion to intervene will be granted if the would-be intervenor can establish that existing parties in the litigation will not adequately represent that interest. (7)

   Adequacy of representation is presumed when the interests of the intervenor and the existing parties are identical. (8) When an existing party is a governmental body, there is a further presumption that the government, operating in its sovereign capacity, represents the interests of all citizens. (9) This presumption stems from a common law doctrine known as parens patriae, or literally "parent of his or her country." (10)

   The presumption of adequate representation by the government unfairly limits intervention by environmental groups, public interest groups, and business interests alike, and should be abandoned in favor of a "minimal burden" approach. Courts must recognize the realities inherent in today's complex regulatory environment and polarized electorate. Governmental organizations represent broad interests applicable to all citizens, and cannot effectively represent narrow and possibly conflicting interests, whether environmental or economic. Governmental regulators also shift positions based on political forces, a phenomenon especially prevalent on environmental issues over the last thirty years. (11) Environmental groups attempting to intervene on behalf of the government to protect noneconomic interests such as clean air and water, endangered species, and open wilderness, face inconsistent application of the presumption. (12) With little United States Supreme Court guidance in this area, federal court decisions vary both by federal circuit and by time, with political polarization impacting the courts as well. Groups representing economic interests currently enjoy a straightforward path to rebut the presumption, but the sensitivity of intervention decisions to political trends should motivate commercial and environmental groups to work together in favor of a "minimal burden" standard. By eliminating the presumption of adequate representation, all organizations with legitimate interests facing impairment by existing litigation can intervene consistently, allowing the judicial system to reap the benefits of economies of scale and decision accuracy.

   Part II of this Comment provides an overview and brief history of Rule 24, with focus on intervention as a matter of right. Part III reviews the leading Supreme Court case dealing with the presumption of adequate representation by the government, the 1972 decision in Trbovich v. United Mine Workers of America. (13) Part IV discusses the origins of the parens patriae doctrine and its early application to intervention attempts by environmental groups. Part V argues for elimination of the presumption, based on weak legal underpinnings and unsuitability for the modern administrative state.

   Those with the motivation, means, passion, and expertise to argue for environmental causes--or yes, even for business interests that run directly counter to environmental causes--should be allowed to intervene on behalf of the government without facing an inconsistent, ineffective, and arbitrary presumption.

2. INTERVENTION: RULE 24 OF THE FEDERAL RULES OF CIVIL PROCEDURE

   The Federal Rules of Civil Procedure, as first adopted in 1938, recognized the rights of nonparties to join existing litigation to protect their interests. (14) An effective intervention rule must balance the interests of the initial parties and their right to control the litigation with the interest of the intervenor facing a threat from the outcome. The rule must also recognize the interests of the judicial system in efficiency of dispute resolution, economy in the use of judicial resources, and the accuracy of judicial decisions. (15) The goal must be maximization of all interests rather than rejection of any given one. (16)

   The 1938 version of Rule 24 recognized intervention of right in two situations: 1) the purpose of the existing litigation was to decide competing claims to property in which the nonparty held an interest; and 2) the existing litigation would extinguish the nonparty's claim under res judicata principles. (17) As no effective alternative remedy for the would-be intervenor existed in these situations, judicial fairness called for an "absolute" right to join the existing litigation. (18)

   Other situations calling for intervention of right frequently arose in practice. For example, a would-be intervenor may not meet constitutional or statutory standing requirements to bring suit separately. The intervenor and the parties may not be related in such a way that res judicata forecloses alternative remedies, but the precedential effect of a judicial decision under the doctrine of stare decisis may constructively foreclose an alternative remedy. (19) Congress recognized these practical issues and expanded intervention of right with a 1966 amendment of Rule 24: (20)

   (a) INTERVENTION OF RIGHT. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. (21)

   The 1966 version of the rule remains substantively in effect today. (22)

   Environmental groups use "intervention of right" as defined in Rule 24(a)(2) to join existing litigation, often between private commercial interests and a governmental entity. Examples include cattle ranchers challenging a decision under the Endangered Species Act (ESA), (23) development interests challenging denial of a wetlands permit by the United States Army Corps of Engineers, (24) and local governments seeking to quiet title to lands near national parks. (25) When no environmental statute specifies the right to intervene under Rule24(a)(1), environmental groups turn to the mandatory three-step process for intervention of right where the group must demonstrate a sufficient interest, that disposition of the action may as a practical matter impair, and is not adequately represented by existing parties. (26) Applicants for intervention bear the burden of proof and all three elements must be proven. (27) As a general rule, courts interpret Rule 24 liberally and resolve doubts in favor of the proposed intervenor. (28)

   The Supreme Court in Donaldson v. United States (29) held the interest in question must be "significantly protectable," (30) which is often stated as "direct, substantial, and legally protectable." (31) For instance, an interest in real estate easily qualifies, but whether interests of environmental groups such as clean air, clean water, and natural resources qualify is less deterministic. In Cascade Natural Gas Corp. v. El Paso Natural Gas Co., (32) the Supreme Court clarified that nonlegally protected interests could suffice for intervention, recognizing again the general idea that the right to intervene should be liberally interpreted. (33) The federal circuits are split over whether Article III standing to sue must be met as a prerequisite for the interest requirement. (34) For example, the District of Columbia Circuit requires standing, (35) while the Tenth Circuit recently rejected standing as a requirement in an en banc decision in San Juan County v. United States. (36) The issue remains unresolved and presents an obstacle for environmental groups and public interest groups in particular, as their interests do not fall into traditional notions of property or other legally protected interests. (37)

   Once a nonparty establishes a sufficient interest, the next question is whether the existing litigation could impair that interest. The rule defines a flexible test, and the words "may as a practical matter" cast the impairment net wide enough to include a negative stare decisis effect--a harmful judicial precedent--that could flow from resolution of the current action. (38) Once the interest requirement is established, the impairment...