Jаmes KLEISSLER; Susan Curry; Arthur Clark; Rodger Clarke; Eloise Glenn; Michael Kaizar; Heartwood, Inc., v. UNITED STATES FOREST SERVICE; Michael P. Dombeck, Chief Forester for the Eastern Region, United States Forest Service; Robert T. Jacobs, Forester for the Eastern Region--United States Forest Service; John Palmer, Forest Supervisor for the Allegheny National Forest--United States Forest Service; v. RIDGWAY AREA SCHOOL DISTRICT; Bradford Area School District; Kane Area School District; Johnsonburg Area School District; Smethport Area School District; Cherry Grove Township; Hamilton Township; Hamlin Township; Highland Township; Wetmore Township; Township Of Jones; Brookville Wood Products, Inc.; Northeast Hardwoods; Ridgway Lumber Company; Allegheny Hardwood Utilization Group, Inc., Appellants, Payne Forest Products, Inc.; Spilka Wood Products Company, Intervenor-Defendants.
No. 98-3137
United States Court of Appeals, Third Circuit.
Argued June 10, 1998. Decided Sept. 30, 1998.
157 F.3d 964
Second, despite MacDraw‘s arguments to the contrary, CIT‘s consolidation of all of the Laribee debt into a single note secured by the equipment was not impermissible. Under New York law, an insolvent debtor may properly assign assets to a creditor as security for an antecedent debt although the effect of the transfer will be to prefer that creditor. Ultramar Energy Ltd. v. Chase Manhattan Bank, N.A., 191 A.D.2d 86, 91, 599 N.Y.S.2d 816 (1st Dept.1993). Moreover, it is also irrelevant under New York law whether CIT knew that Laribee was insolvent or that the consolidation had the effect of preferring CIT over Laribee‘s other creditors. See id. Finally, there is no support in New York law for the proposition that, as a condition to its receipt of its security interest in the Laribee equipment, CIT had an obligation to satisfy Laribee‘s debt to MacDraw, which was after all an unsecured creditor. See id.
We need not consider MacDraw‘s contention that CIT‘s alleged oral promise and fraud rendered these fundamental legal principles inapplicable in the instant case. At the conclusion of the trial, after a full consideration of the circumstances of CIT‘s course of dealing with MacDraw, the district court found that CIT had neither promised to pay the final installment nor committed any fraud against MacDraw. Accordingly, we affirm the district court‘s dismissal of MacDraw‘s unjust enrichment claim.
III.
We have carefully considered all of MacDraw‘s arguments and have found them to be without merit. The judgment of the district court is affirmed in all respects.
William V. Luneburg (Argued), Pittsburgh, PA, for Appellees James Kleissler, Susan Curry, Arthur Clark, Rodger Clarke, Eloise Glenn, Michael Kaizar, Heartwood, Inc.
Amy R. Hay, Bonnie R. Schlueter, Office of United States Attorney, Pittsburgh, PA, for Appellees United States Forest Service, Michael P. Dombeck, Robert T. Jacobs, John Palmer.
Before: BECKER, Chief Judge, ALDISERT and WEIS, Circuit Judges.
WEIS, Circuit Judge.
The district court denied a request for intervention by local governmental bodies and business concerns in litigation brought by environmentalists to restrict logging activities in a National Forest. We conclude that the proposed intervenors established a threat to their interests from the suit and a reasonable doubt whether the government agency would adequately represent those concerns. Accordingly, we reverse the district court‘s order and remand for further proceedings.
Plaintiffs are six Pennsylvania and Ohio residents and an Indiana organization committed to environmental preservation. They filed suit against the United States Forest Service (Service) asserting that the agency had violated statutory requirements in approving two projects that permitted substantial tree cutting in the Allegheny National Forest. Plaintiffs requested аn injunction barring implementation of the proposed measures, halting all logging activity, and suspending or canceling contracts for logging in the forest. In addition, plaintiffs sought a declaration that approval of the projects was arbitrary, capricious, and not in conformity with the law.
Through the National Forest Management Act of 1976, Congress authorized the Secretary of Agriculture to develop land and resource plans that are used as a guide to all resource activities in a national forest, including timber harvesting. See
In 1997, the Service, as the Secretary‘s designee, approved the Minister Watershed Project and the South Branch Willow Creek Project, both covering areas within the Allegheny National Forest in Northwestern Pennsylvania. The projects called for substantial tree harvesting through even-aged management. This process, in general terms, contemplates clearing designated areas of all trees, rather than focusing on individual trees within the given tract, the latter being far more costly and time-consuming for timber companies. See
The plaintiffs’ complaint alleges that the projects violate the National Environmental Policy Act (NEPA),
A motion for leave to intervene was filed by a number of area school districts located near the Allegheny National Forest, including Ridgway, Bradford, Kane, Johnsonburg, and Smethрort. In addition, six townships—Cherry Grove, Hamilton, Hamlin, Highland, Wetmore, and Jones—sought intervention.
The school districts and municipalities asserted an interest in the suit because they receive funds from receipts of logging operations in the forest. By statute, the federal government disburses twenty-five percent of the gross amounts received from the forest to the Commonwealth of Pennsylvania at the end of each fiscal year.
Joining the motion for leave to intervene were Brookville Wood Products, Inc., Northeast Hardwoods, Ridgway Lumber Co., Payne Forest Products, Inc., Spilka Wood Products Co., and Allegheny Hardwood Utilization Group, Inc. Payne and Spilka have existing contracts to cut timber as part of the Minister Watershed Prоject. Ridgway was the successful bidder on a contract under the South Branch Willow Creek Project, but the Service has withheld awarding the contract pending the outcome of this litigation. Brookville Wood Products and Northeast Hardwoods are also lumber companies that generate most of their income from contracts with the Service. Allegheny Hardwood is a nonprofit corporation whose members hold existing sales contracts with the Service and expect to bid on future timber sales contracts that would be affected by this litigation.
The district court reviewed the prerequisites for intervention as set out in Federal Rule of Civil Procedure 24(a)(2) and denied the motion as to all applicants except Payne and Spilka. In those two instances, the court determined that intervention was justified because existing contract rights would be threatened if plaintiffs prevailed.
The court observed that the other applicants had interests of an economic nature based on expectation. Although those interests are very important, the court is compelled to conclude based on the case law thаt they are not the type of protectable interests that justify intervention as of right under
During the pendency of this appeal, the district court entered summary judgment for defendants on most claims asserted by plaintiffs with respect to the two projects because of the failure to exhaust administrative remedies. The district court is presently considering whether claims challenging the landscape corridor approach as a management philosophy should suffer a similar fate.
Plaintiffs have secured a certification under
II.
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action . . . (2) when 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.
We have interpreted
We will reverse a district court‘s determination on a motion to intervene as of right if the court has abused its discretion by applying an improper legal standard or reaching a conclusion we are confident is incorrect. Harris, 820 F.2d at 597. The parties to this appeal do not dispute the timeliness of the motion for leave to intervene, so we move on to consider the other elements.
To justify intervention as of right, the applicant must havе an interest relating to the property or transaction which is the subject of the action that is significantly protectable. Donaldson v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971). That observation, however, has not led to a precise and authoritative definition of the interest that satisfies
The nebulous nature of the standard is apparent from our precedents. Old Colony Trust Co. v. Penrose Industries Corp., 387 F.2d 939, 941 (3d Cir.1968), held that in a declaratory judgment action over the commercial reasonableness of the sale price of collateral, a would-be purchaser did not have an adequate interest for intervention. On the other hand, in EEOC v. AT & T, 506 F.2d 735, 741-42 (3d Cir.1974), a union was permitted to intervene to contest a proposed consent decree between the government and an employer that could have affected the terms of a collective bargaining agreement.
In Harris, the court denied intervention to a district attorney in a suit brought to alleviate overcrowding and other conditions in the local penal institution. We observed that the district attorney did not administer the pris
Brody involved a suit to enjoin religious speech. A group of students and parents sought to intervene in opposition to plaintiffs. We concluded that the proposed intervenors had no interest in litigating the merits of the school‘s policies, but to the extent a remedy fashioned in a decree might infringe on their First Amendment rights, the parents and students could be eligible for participation in the suit. 957 F.2d at 1116-17. We also commentеd on our policy preference which, as a matter of judicial economy, favors intervention over subsequent collateral attacks. Id. at 1123.
In Alpha Housing, the sole member of a nonprofit corporation sought to intervene to protect the continued viability and tax exempt status of the corporation. We accepted the plaintiffs’ concession that these interests were significant enough to support intervention. 54 F.3d at 162. Finally, in Mountain Top Condominium, we concluded that the intervenors’ interest in the disposition of a specific fund was sufficient to justify intervention even though they could not challenge the merits of another party‘s claim to the fund. 72 F.3d at 367-68.
This brief review of our jurisprudence does not yield a pattern that will easily support or defeat intervention in all circumstances. Rather, the variety of factual situations and their resolution demonstrate our adherence to the elasticity that
A leading treatise explains that pragmatism is a substantial factor that must be considered: The central purpose of the 1966 amendment was to allow intervention by those who might be practically disadvantaged by the disposition of the action and to repudiate the view, [under the former rule], that intervention must be limited to those who would be legally bound as a matter of res judicata. 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1908, at 301 (1986).
Phraseology such as mere economic interests, for example, has been used but has not proved decisive in practice,1 nor have concepts such as mere expectancies or indefiniteness been particularly helpful in identifying the nature of the interest required. We have more often relied on pragmatic considerations such as the benefits derived from consolidation of disputes into one proceeding. Those considerations, however, should not prevail if the focus of the litigation would be unduly dissipated or case management would become exceptionally complex.
Our survey of the law in other Circuits, particularly as applied in environmental litigation, provides some helpful background. In Sierra Club v. Espy, 18 F.3d 1202 (5th Cir.1994), the case upon which the district court principally relied, plaintiffs challenged certain management practices of the Service in Texas forests. The Court of Appeals for the Fifth Circuit concluded that two trade groups whose members included the major purchasers and processors of timber had an interest sufficient to satisfy
Similarly, intervention was permitted by the Court of Appeals for the First Circuit in Conservation Law Foundation, where plaintiffs and a government agency agreed on a consent decree that set timetables for the establishment of a government plan that would impair the business of commercial fisheries. As targets of a regulatory plan ultimately aimed at reducing over-fishing, the commercial fisheriеs alleged an interest that supported intervention. 966 F.2d at 43-44.
Some decisions, however, adopt a more mechanical approach when evaluating the relevant interests. In Portland Audubon Society v. Hodel, 866 F.2d 302 (9th Cir.1989), for example, the Court of Appeals for the Ninth Circuit held that an economic interest in protecting a continuous supply of timber was insufficient to warrant intervention in a NEPA case by a trade group and various timber companies. Following Wade v. Goldschmidt, 673 F.2d 182 (7th Cir.1982) (per curiam), Portland Audubon held that in a suit to compel an agency to follow NEPA, only governmental bodies may be defendants. Id. at 309; see also Forest Conservation Council v. United States Forest Serv., 66 F.3d 1489, 1499 n. 11 (9th Cir.1995) (citing Sierra Club v. EPA, 995 F.2d 1478, 1485 (9th Cir.1993)); cf. Collin County v. Homeowners Assoc. for Values Essential to Neighborhoods (HAVEN), 915 F.2d 167, 170-72 (5th Cir.1990) (plaintiffs lacked standing to sue for a judgment declaring governmental compliance with NEPA). But cf. Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232-33, 1236 (D.C. Cir.1996) (lumber company has standing to sue the Service under the National Forest Management Act and challenge its decision to limit timber harvesting).
These cases seem to suggest that NEPA suits are sui generis because only the government can comply with that statute. We are reluctant to endorse a narrow approach that makes the onus of compliance the litmus test for intervention. Such a wooden standard minimizes the flexibility and spirit of
The reality is that NEPA cases frequently pit private, state, and federal interests against each other. Rigid rules in such cases contravene a major premise of intervention—the protection of third parties affected by pending litigation. Evenhandedness is of paramount importance. See Note, Sierra Club v. U.S. Environmental Protection Agency: Intervention of Right and the Victories that Come Back to Haunt, 7 Tul. Envtl. L.J. 271, 283 (1993).
The expansion of standing by statute and case law has enabled private attorneys general and public interest groups to call governmental agencies to task in litigation. These efforts, though often well-intentioned, sometimes concentrate on narrow issues that are of significant concern to plaintiffs but have an immediate and deleterious effect on other individuals and entities. Rather than barring access to these parties,
Thus, we are reluctant to accept the holdings of the Court of Appeals for the Ninth Circuit in Portland Audubon and Sierra Club v. EPA that, in reliance on Wade, seem to adopt a categorical rule in NEPA cases barring private support for governmental agencies. Wade did not espouse such a rigid position. In that case, the Court denied intervention to various municipalities and private parties that would have benefitted from a highway project because their interests were not directly implicated by the lawsuit. The Court cautioned, however, that a different case would be presented if the suit would directly alter contractual or other legally protectable rights of the proposed intervenors. 673 F.2d at 186 n. 6.
The Ninth Circuit inched away from the doctrinaire approach in
The convergence of conservation and timber interests that has occurred in this case confirms that the categorical approach can be too inflexible. Protecting timber interests has been an express Congressional policy since the establishment of the national forest system through the Organic Administration Act of 1897.
Under these circumstances, we think that the decision of the Court of Appeals for the Fifth Circuit in Sierra Club v. Espy represents a more realistic approach in permitting intervention. Timber companies have direct and substantial interests in a lawsuit aimed at halting logging or, at a minimum, reducing the efficiency of their method of timber-cutting.
Adequacy of interest alone, however, is not enough to grant intervention. Becausе
The burden of establishing inadequacy of representation by existing parties varies with each case. A government entity charged by law with representing a national policy is presumed adequate for the task, Brody, 957 F.2d at 1123, particularly when the concerns of the proposed intervenor, e.g., a public interest group, closely parallel those of the public agency. In that circumstance, the would-be intervenor [must make] a strong showing of inadequate representation. Mausolf, 85 F.3d at 1303. But the presumption notwithstanding, when an agency‘s views are necessarily colored by its view of the public welfare rather than the more parochial views of a proposed intervenor whose interest is personal to it, the burden is comparatively light. Conservation Law Found., 966 F.2d at 44; accord Mausolf, 85 F.3d at 1303 (when the proposed intervenors’ concern is not a matter of ‘sovereign interest,’ there is no reason to think the government will represent it); see also Solid Waste Agency, 101 F.3d at 508-09 (raising concerns that workload of Solicitor General‘s Office could prevent an agency‘s appeal and thus adversely affect proposed intervenors).
This overview demonstrates that
Counseled by these appellate opinions, we assess the case before us. Thе relief sought by plaintiffs, i.e., an injunction to bar logging (at least until such time as the NEPA process is completed) would have an immediate, adverse financial effect on the school districts and municipalities. That re
The school districts and municipalities have direct interests in this litigation because state law commands the Commonwealth, through its political subdivisions, to forward to them federal grant money generated through timber harvesting each year, money that they will lose, at least temporarily and perhaps permanently, if plaintiffs are successful in this lawsuit. To suspend the flow of revenue to the school districts and municipalities for even a limited period of time would affect spending for essential school activities and public projects. We are persuaded that the interests jeopardized, which are protected by state law, are direct, substantial and of adequate public interest as to justify intervention. In these sparsely populatеd areas with limited tax bases, the impairment caused by curtailing revenue provided through logging activity would be significant.
Turning to the private-party applicants, the district court cited Sierra Club v. Espy for the proposition that only those timber companies with existing contracts had an interest that would support intervention. From our point of view, Sierra Club v. Espy states a rule of inclusion for evaluating interests under
Ridgway Lumber had more than a mere expectancy of obtaining a contract in the future. It was already a successful bidder, and from all that appears in the record, would now be a party to a remunerative contract for logging but for the institution of this litigation. Realistically, Ridgway has as strong an economic stake in the outcome of this litigation as do Spilka and Payne, which were permitted to intervene.
Brookville Wood Products and Northeast Hardwoods may not have received contracts under the projects challenged by plaintiffs, but the district court found that they are very dependent on timber contracts with the [Service] to cut timber in the Forest and their continued existence may bе jeopardized if plaintiffs prevail. Dist. Ct. Op. at 5. In addition, like the other timber companies, they have a considerable stake in ensuring that the landscape corridor approach to forest management remains in place. Congress has designated our national forests for multiple uses, but it has also emphasized that those uses are not in derogation of timber harvesting.
Allegheny Hardwood falls within the category of those trade associations representing threatened businesses granted intervention in such cases as Sierra Club v. Glickman, 82 F.3d at 108, Sierra Club v. Espy, 18 F.3d at 1203, and Conservation Law Foundation, 966 F.2d at 40. We find the rulings in those cases persuasive and applicable to Allegheny Hardwood.
Therefore, we conclude that the interests of the private-party applicants are direct, not remote. In other words, they have more than mere attenuated economic interests because, as we have outlined, their longstanding depеndence on contractual relations with the Service is unique to them.
Although plaintiffs assert that the proposed intervenors’ interests are adequately protected by the government defendant, the district court found otherwise with respect to Payne and Spilka. The court pointed out that in a companion case, Curry v. United States Forest Service, 988 F.Supp. 541 (W.D.Pa.1997), the agency chose not to appeal an adverse ruling in connection with timber sales in other projects in the Allegheny National Forest. Consequently, that litigation gave legitimate pause to the lumber companies’ confidence in adequate representation by the Service.
In addition, the government represents numerous complex and conflicting interests in matters of this nature. The straightforward business interests asserted by intervenors
Plaintiffs contend that whatever the dоubts about the vigor of the government‘s representation, Payne and Spilka‘s interests are aligned with those of the proposed intervenors. We disagree. It does not strain the imagination to conjure up situations in which Payne and Spilka may face the irresistible temptation to work out settlements that benefit themselves and not the other, competing timber companies. Compromises of that nature might also harm the school districts and municipalities, which have interests inextrica-bly intertwined with, but distinct from, those of the timber companies. See Lake Investors Dev. Group, Inc. v. Egidi Dev. Group, 715 F.2d 1256, 1261 (7th Cir.1983).
In Solid Waste Agency, the Court of Appeals for the Seventh Circuit discussed the value of a wait and see approach in which proposed intervenors would file a conditional application with the understanding that the district court would defer consideration until requested to do so. 101 F.3d at 508-09. Such a procedure may work in some cases, but on balance, intervenors and the public interest in efficient handling of litigation are better served by prompt action on a intervention motion. See Conservation Law Found., 966 F.2d at 44 (An intervenor need only show that representation may be inadequate, not that it is inadequate.). The early presence of intervenors may serve to prevent errors from creeping into the proceedings, clarify some issues, and perhaps contribute to an amicable settlement. Postponing intervention in the name of efficiency until after the original parties have forged an agreement or have litigated some issues may, in fact, encourage collateral attack and foster inefficiency. In other words, the game may already be lost by the time the intervenors get to bat in the late innings.
III.
We conclude that in the circumstances of this case, the motion for leave to intervene should have been granted. Each applicant has a significantly protectable interest in the transaction that may be jeopardized by the lawsuit. None of the existing parties will adequately represent their interests. Although there are a number of intervenors, we are confident that the very able district judge will effectively handle any case-management problems that may arise. Accordingly, we will reverse the order denying intervention and remand the case to the district court for further proсeedings consistent with this Opinion.2
BECKER, Chief Judge, Concurring.
Although I believe the question to be close as to the intervention of Brookville Wood Products, Inc. and Northeast Hardwoods, I agree with the majority that the district court should have granted the request of the appellants to intervene as of right, hence I concur in the judgment. I fear, however, that the majority‘s analytic framework departs from the doctrinal view that this Court has taken of
I.
Contemporary litigation—particularly environmental litigation—frequently affects numerous individuals, groups, communities, and business interests, including those not originally made party to the litigation. The question often arises, as in this case, whether any of these outsiders has a right to intervene and to be made a party to the case. Plaintiffs have requested an injunction halting all
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an actiоn: . . . (2) when 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.
As the majority notes, we have required proof of four elements for intervention under
One prominent source has suggested that the inquiry under
II.
The most difficult question in many intervention cases, and I believe in this one as well, is the nature of the proposed interve
In Harris, supra, we said that a would-be intervenor must demonstrate that there is a tangible threat to a legally cognizable interest. Harris, 820 F.2d at 601. In Mountain Top, supra, we held that a mere economic interest is insufficient. 72 F.3d at 366. While these cases do not give us a bright-line standard, they do flesh out the contours of the doctrine. They reduce the analysis to a two-part inquiry, i.e., we must examine (1) the reality of the interest—does the litigation pose a tangible threat to the applicant or simply a speculative one?—and (2) the nature of the interest, e.g., is it a mere economic interest? We have found an interеst insufficient when a party‘s status was simply would-be purchaser of collateral, see Old Colony Trust Co. v. Penrose Indus. Corp., 387 F.2d 939, 941 (3d Cir.1968), or when a district attorney‘s ability to prosecute cases would not be directly affected by a prison consent decree, see Harris, 820 F.2d at 599-603. In contrast, we have found a sufficient interest when a proposed consent decree directly impinged on an existing contractual right, see EEOC v. AT & T, 506 F.2d 735, 741-42 (3d Cir.1974), or on a statutory right of contribution, see United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1183-86 (3d Cir.1994). As these cases demonstrate, when the interest at issue is both real and legally cognizable (through contract, statute, or a property right), we have found it to meet the requirements of
Other courts have distinguished interests sufficient under
In similar situations, other courts have found a sufficient interest for intervention because the proposed intervenors would be directly affected by the litigation seeking changes in federal agency rulemaking. See, e.g., Sierra Club v. Glickman, 82 F.3d 106, 109 (5th Cir.1996) (farm group had sufficient interest in suit which sought to prevent government agency from expending funds to, or fulfilling contracts with, farmers); Sierra Club v. Espy, 18 F.3d 1202, 1207 (5th Cir.1994) (timber purchasing companies with existing contracts had legally cognizable interest sufficient to intervene in challenge by environmental groups to Forest Service policies regarding logging procedures); Sierra Club v. United States Envtl. Protection Agency, 995 F.2d 1478, 1482 (9th Cir.1993) [U.S. EPA] (relief sought by plaintiffs would
III.
I turn to applying the foregoing analytic framework (and case law) to the parties seeking intervention in this case. While my approach differs from the majority‘s, it leads to the same conclusion, that all potential intervenors have a sufficient interest for intervention as of right. Two proposed intervenors, Payne Forest Products, Inc. and Spilka Wood Products Company, have existing contracts with the Forest Service which could be suspended or canceled as a result of the present litigation. There can be no doubt that interference with existing contractual rights constitutes the necessary tangible threat to a legally cognizable interest that we have required for intervention as of right. Allegheny Hardwood, the trade association, also represents lumber companies with existing contracts, see Dist. Ct. Op. at 6, and therefore, as a representative of these companies, has a legally cognizable interest which will be directly affected by the present litigation. See, e.g., Espy, 18 F.3d at 1207 (existing timber contracts of member companies give trade association legally protectable property interests necessary to satisfy intervention as of right).
Ridgway Lumber Company, while without an existing lumber contract, had successfully bid on one and would have entered into a contract with the Forest Service absent the present litigation. Its successful bid is a tangible interest which could be—indeed, has been—directly affected by the present litigation, whatever its eventual outcome. See, e.g., Forest Conservation Council v. United States Forest Serv., 66 F.3d 1489, 1494 (9th Cir.1995) (when suit has direct, immediate, and harmful effects on third party‘s legally protectable interests, this satisfies the interest prong of
A more difficult case is presented with respect to proposed intervenors Brookville Wood Products, Inc. and Northeast Hardwoods. Neither of these companies has an existing contract for cutting timber in the ANF, nor have they successfully bid on a contract which would have bеen consummated but for the present litigation. However, the district court found that these companies generate the majority of their revenues from timber contracts with the [Forest Service] to cut timber in the Allegheny National Forest and that they are very dependent on[these] timber contracts. Dist. Ct. Op. at 5. I understand this finding, in light of the record, to mean that these companies have consistently been successful bidders in ANF logging contracts, that it is only an accident of timing that they do not have contracts at this juncture, and that—particularly given the remoteness of the area in which the companies operate—they are very likely to secure contracts in the near future if logging contracts are there to be bid (which will depend on the outcome of this litigation). In evaluating the interest of the companies without existing contracts, it is apparent that it is not an actual interest, but neither is it speculative. Under these circumstances, I cannot say that the majority is wrong when it finds that these companies also have the sufficient interest to meet our requirements for intervention as of right.
IV.
As noted above, the majority does not clearly draw the line between interests sufficient for intervention under
If the logging supply companies or the local diner were to petition for intervention as of right, should the district court find their interest sufficient to warrant intervention under
Unlike the logging companies and the local governmеnts, which suffer an immediate, direct harm when the logging contracts are suspended—even if they somehow can replace their canceled contracts or lost revenue from some other source—the diner and supply company suffer any loss only down the line, after the logging companies have reduced their workers’ wages or stopped ordering logging supplies. See, e.g., Montana v. United States Envtl. Protection Agency, 137 F.3d 1135, 1142 (9th Cir.1998) (potential effect on property values from promulgation of new water quality standards is a speculative and purely economic interest [which] does not create a protectable interest in litigation concerning a statute that regulates environmental, not economic, interests). Further, such losses that the diner or supply company may suffer are not grounded in a legal
In a different context—the interpretation of the nation‘s antitrust laws—the Supreme Court has distinguished between parties injured by direct actions of an antitrust violator and those injured down the line (i.e., purchasers from the directly injured parties). See Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). In Illinois Brick, the Court reasoned that allowing indirect purchasers to recover using pass-on theories . . . would transform treble-damages actions into massive multiparty litigations involving many levels of distribution and including large classes of ultimate consumers remote from the defendant. Id. at 740. Despite
V.
Once we have established that a party has a sufficient interest for intervention as of right, we must determine whether the disposition of the action may as a practical matter impair or impede the applicant‘s ability to protect that interest.
In the present case, it is clear that this litigation itself could practically impair the interests of all of the proposed intervenors if the district court were to grant the injunctive relief sought by the plaintiffs pending a decision on the underlying dispute. See Appellees’ Brief at 3 ([T]he initial result of success in the litigation below will be a pause in timber cutting with regard to the two projects and in other areas of the [ANF] . . . .). The logging companies’ interest is in contracts to cut timber, either existing or certain to be entered into in the near future (absent the litigation). An injunction that suspends, cancels, or prevents future contracting by the Forest Service will directly and immediately affect this interest.5 Similarly, the local governments would immediately lose the income to which they are entitled from these contracts.
will have a significant stare decisis effect on [applicants‘] claims, or if the applicants’ rights may be affected by a proposed remedy.
An applicant need not, however, prove that he or she would be barred from bringing a later action or that intervention constitutes the only possible avenue of relief. The possibility of a subsequent collateral attack does not preclude an applicant from demonstrating that his or her interests would be impaired should intervention be denied.
957 F.2d at 1123 (citations omitted). All of the proposed intervenors meet this requirement in the present case.6
VI.
In sum, I believe that an increasingly clear, inflexible, standard has developed in our
Linda SLOAN, Plaintiff-Appellant,
v.
John SHARP; et al., Defendants,
John Sharp, Comptroller, in his capacity as head of Comptroller of Public Accounts for the State of Texas; Texas, State of; Grundy Wiley, Individually and in his capacity as an employee with the State of Texas; Comptroller of Public Accounts, Defendant-Appellees.
No. 97-20168.
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Jan. 8, 1998.