                                                                 FILED
                                                     United States Court of Appeals
                        UNITED STATES COURT OF APPEALS       Tenth Circuit

                                 FOR THE TENTH CIRCUIT          November 8, 2013

                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
THE NEW MEXICO OFF-HIGHWAY
VEHICLE ALLIANCE, a New Mexico
nonprofit corporation,

               Petitioner-Appellee,

v.                                                      No. 13-2116
                                             (D.C. No. 1:12-CV-01272-WJ-LFG)
UNITED STATES FOREST SERVICE,                             (D. N.M.)
an agency of the United States
Department of Agriculture; THOMAS
TIDWELL, in his official capacity as
Chief of the United States Forest Service;
MARIA T. GARCIA, in her official
capacity as Santa Fe National Forest
Supervisor; GILBERT ZEPEDA, in his
official capacity as Southwestern Region
Deputy Regional Forester; UNITED
STATES DEPARTMENT OF
AGRICULTURE; TOM VILSACK, in
his official capacity as Secretary of the
United States Department of Agriculture,

               Respondents.

------------------------------

CENTER FOR BIOLOGICAL
DIVERSITY; WILDEARTH
GUARDIANS; SIERRA CLUB,

               Movants-Appellants.
                            ORDER AND JUDGMENT*


Before GORSUCH, ANDERSON, and HOLMES, Circuit Judges.


      The Center for Biological Diversity, WildEarth Guardians, and the Sierra Club

(collectively, the environmental groups) appeal from the district court’s denial of

their motion to intervene. Exercising jurisdiction under 28 U.S.C. § 1291,1 we

conclude they are entitled to intervene as a matter of right under Fed. R. Civ. P.

24(a)(2). Accordingly, we vacate the district court’s order and remand with

directions to grant the motion to intervene.

                                   BACKGROUND

      The New Mexico Off-Highway Vehicle Alliance (NMOHVA) filed a petition

for review against the United States Forest Service, the United States Department of

Agriculture, and various federal officials (collectively, the Forest Service)

challenging a final agency action implementing a Travel Management Plan (the Plan)


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
      Orders denying intervention are final and immediately appealable.
See WildEarth Guardians v. Nat’l Park Serv., 604 F.3d 1192, 1194 (10th Cir. 2010).


                                          -2-
for the Santa Fe National Forest and the Final Environmental Impact Statement for

Travel Management on the Santa Fe National Forest. The Plan, which designates

roads and trails in the Santa Fe National Forest allowing motorized vehicles,

significantly reduced the number of roads and trails previously available for

motorized vehicle use. The NMOHVA seeks reimplementation of the prior use

policy.

      The environmental groups moved to intervene as of right under Rule 24(a)(2).2

Neither the NMOHVA nor the Forest Service opposed the motion.3 But the district

court denied it, finding that although the environmental groups have legally

protectable interests that would be impaired without intervention, the Forest Service

will adequately represent their interests because the environmental groups and the

Forest Service have the same interests. The court reasoned that the Forest Service

had taken the environmental groups’ position and designed a Plan with the intent to

curb the use of off-highway vehicles in the Santa Fe National Forest.

      The environmental groups appealed the denial of their motion to intervene.4

Neither the NMOHVA nor the Forest Service filed an appellate brief.


2
      The environmental groups also requested permissive intervention under
Fed. R. Civ. P. 24(b). They do not appeal the district court’s denial of that request.
3
      Upon filing the administrative record, the Forest Service provided copies to
the NMOHVA and the environmental groups.
4
       After filing a notice of appeal, the environmental groups asked the district
court to stay proceedings pending appeal. The court granted the unopposed motion.


                                          -3-
                                      ANALYSIS

      “We review de novo the district court’s application of Rule 24.” WildEarth

Guardians, 604 F.3d at 1197. Under Rule 24(a)(2), intervention of right is required

for a movant who “claims an interest relating to the property or transaction that is the

subject of the action, and is so situated that disposing of the action may as a practical

matter impair or impede the movant’s ability to protect its interest, unless existing

parties adequately represent that interest.”5 Thus, we consider: (1) whether the

environmental groups have interests in environmental matters concerning the Santa

Fe National Forest; (2) whether, as a practical matter, the outcome of the underlying

litigation may impair or impede those interests; and (3) whether the NMOHVA or the

Forest Service will adequately represent the environmental groups’ interests.

      Applying Rule 24(a)(2) somewhat liberally, see WildEarth Guardians,

604 F.3d at 1198, we, like the district court, can easily determine that the first two

elements of the rule are met. It is indisputable that the environmental groups have

legally protectable interests in environmental concerns. See id. (citing San Juan

Cnty. v. United States, 503 F.3d 1163, 1199 (10th Cir. 2007) (en banc)). They

participated in the administrative process by submitting comments and by appealing

the Plan, at all times expressing concern about the harms to wildlife and waterways,


5
      A motion to intervene also must be timely. Rule 24(a). The environmental
groups’ motion was timely because it was filed two months after the petition for
review was filed and only a scheduling order, which was later changed, had been
entered in the case.


                                          -4-
the density of use, and the interruption of quiet enjoyment of the Santa Fe National

Forest by off-highway vehicle traffic. Also, the environmental groups’ staff,

members, and volunteers regularly enjoy the forest for recreational and aesthetic

reasons.

       The second element, the impairment element, places a minimal burden on the

environmental groups to show that impairment of their interests is possible if leave to

intervene is not granted. See id. at 1199. As is the case here, “intervention may be

based on an interest that is contingent upon the outcome of the litigation.” San Juan

Cnty., 503 F.3d at 1203 (internal quotation marks omitted); see also WildEarth

Guardians, 604 F.3d at 1199 (“Our cases recognize that the interest of a prospective

defendant-intervenor may be impaired where a decision in the plaintiff’s favor would

return the issue to the administrative decision-making process, notwithstanding the

prospective intervenor’s ability to participate in formulating any revised rule or

plan.”). The environmental groups would be impaired if the outcome of the district

court litigation is other than upholding the Plan. See Utah Ass’n of Cntys. v. Clinton,

255 F.3d 1246, 1254 (10th Cir. 2001) (“[T]he possibility of impairment is not

eliminated by the intervenors’ opportunity to participate in the formulation of a

revised land use plan that, at most, would not provide the level of protection to the

intervenors’ interests that the current plan offers.”).

       The final element, the adequate-representation element, places a minimal

burden on the environmental groups to show a possibility that neither of the parties


                                           -5-
will adequately represent their interests. See WildEarth Guardians, 604 F.3d at 1200.

Because the NMOHVA represents opposing interests to the environmental groups’

interests, the real question is whether the Forest Service would represent them, since

both support the Plan. For the following reasons, we conclude the Forest Service

would not do so.

      On repeated occasions we have recognized that it is impossible for a

government agency to protect both the public’s interests and the would-be

intervenor’s private interests. Id. Indeed, “[w]here a government agency may be

placed in the position of defending both public and private interests, the burden of

showing inadequacy of representation is satisfied.” Id. This is because

      the government’s representation of the public interest generally cannot
      be assumed to be identical to the individual parochial interest of a
      particular member of the public merely because both entities occupy the
      same posture in the litigation. In litigating on behalf of the general
      public, the government is obligated to consider a broad spectrum of
      views, many of which may conflict with the particular interest of the
      would-be intervenor.

Clinton, 255 F.3d at 1255-56. “This potential conflict exists even when the

government is called upon to defend against a claim which the would-be intervenor

also wishes to contest.” Id. at 1256.

      Although both the Forest Service and the environmental groups would defend

the Plan, we cannot assume that the environmental groups’ interests, as evidenced by

their comments during the development of the Plan and during their administrative

appeal, wholly align with those of the Forest Service. Their extensive comments


                                         -6-
directed at the Draft Environmental Impact Statement (DEIS) recommended, among

other things, that the Forest Service conduct environmental review of user-created

routes, consider a reasonable range of alternatives to protect the forest’s natural

resources, establish a plan to ensure effective motorized recreation management and

enforcement, consider the impacts of motorized dispersed camping and motorized big

game retrieval, address the fact that the route system is greater than the Forest

Service can afford, decrease route density, consider water quality impacts, further

consider noise impact, and analyze cumulative impacts. Balancing various interests,

the Forest Service issued a Final Environmental Impact Statement (FEIS).

Dissatisfied with the FEIS, the environmental groups administratively appealed,

without success.6 Based on the administrative proceedings, there is no guarantee that

the Forest Service will make all of the environmental groups’ arguments in litigation.



6
       The environmental groups conceded, however, that they requested only “minor
changes,” and if the changes were made, they would support the final decision and
assist with its implementation. Aplt. App., Vol. 2, at 354. This concession, by itself,
is insufficient to suggest that the Forest Service and the environmental groups have
identical interests or that the Forest Service will adequately represent the groups’
interests. This is especially so because the groups requested during the
administrative appeal
      that the Forest Service close all routes in the Jemez District, remove 10
      miles of routes from inventoried roadless areas on the Forest; close, or
      not designate, several user-created routes on the Forest; conduct
      additional analysis on the environmental effects of various provisions of
      the Travel Plan; demonstrate that the requirements of Executive Orders
      11989 and 11644 were applied to more than 2,000 miles of routes in the
      Travel Plan; provide additional guidance to the public related to
      motorized dispersed camping and motorized big game retrieval
                                                                            (continued)
                                          -7-
      In addition, there is no guarantee that the Forest Service’s policy will not shift

during litigation; it may decide to grant the NMOHVA’s goals in full or in part.

See WildEarth Guardians v. U.S. Forest Serv., 573 F.3d 992, 997 (10th Cir. 2009)

(recognizing that coal mine should not be required to rely on government to protect

its interests because government has multiple objectives and could shift policy to

embrace environmental objectives).

      More to the point, we do not know whether the district court will uphold or

enjoin the Plan. For both the Forest Service and the environmental groups, the

desired outcome, upholding the plan, is identical and aligned. But there is no

assurance of identical and aligned interests if the Plan is not upheld. Before making

a decision, the court must balance the various hardship claims. Throughout the

administrative proceedings, the environmental groups claimed hardships of their

own, distinct from the hardships of the Forest Service, and ones which we have no

current information suggesting the Forest Service would pursue. We simply do not

know, then, if the Forest Service’s and the environmental groups’ interests are

aligned when it comes to remedy if the Plan is enjoined, even if we do have some

information suggesting alignment on the merits. Thus, it is critical here that there is

no assurance of aligned interests if the Plan is enjoined.


      corridors; and urged the Forest Service to select . . . the alternative that
      best satisfied [its] conservation-based interests.

Aplt. Br. at 24 (citing Aplt. App., Vol. 2 at 343-56).


                                          -8-
       Finally, the Forest Service “has taken no position on the motion to intervene in

this case. Its silence on any intent to defend the [environmental groups’] special

interests is deafening.” Clinton, 255 F.3d at 1256 (internal quotation marks omitted).

Accordingly, we conclude that the environmental groups have met their minimal

burden of showing that the existing parties may not adequately represent their

interests.7


7
       The dissent comes close to suggesting that the portion of the plurality decision
in San Juan County discussing adequate representation, joined by only three of the
thirteen judges sitting en banc, controls the outcome of this case on the adequacy-of-
representation question. We respectfully disagree. The sole issue in San Juan
County was a narrow one concerning title to a road. See San Juan Cnty., 503 F.3d at
1206 (“We recognize that [the environmental groups] and the [National Park Service]
have had their differences over the years regarding Salt Creek Road. But when [the
environmental groups] filed [their] application to intervene, the Federal Defendants
had only a single litigation objective—namely, defending exclusive title to the
road—and [the environmental groups] could have had no other objective regarding
the quiet-title claim.”). The issue did not require the federal defendants to balance a
spectrum of views in furthering the public interest, as here, which might cause them
to deviate from the private concerns of the would-be intervenors. Indeed, even the
manner in which the federal defendants might exercise authority over the road was
not at issue. See id. at 1206-07. It simply was a question of ownership. Under those
unique circumstances, there was no reason to believe, as to the narrow ownership
issue, that the federal defendants’ interests were not entirely identical to the would-be
intervenors’ interests, and that they would not adequately represent those interests.
       Subsequent case law emphasizes the narrowness of the holding in San Juan
County. In Kane County v. United States, 597 F.3d 1129, 1135 (10th Cir. 2010), this
court distinguished cases involving challenges to administrative action, as here, from
quiet title actions.
       In WildEarth Guardians, 573 F.3d at 994, an environmental group sued the
federal government after it approved plans allowing a coal mine to vent methane gas
from the mine. The mine sought to intervene. Judge Hartz, who authored the
decision in WildEarth Guardians as well as the plurality decision in San Juan County
relied on by the dissent, recognized that in San Juan County there was a single
                                                                           (continued)
                                           -9-
                                    CONCLUSION

      The district court’s order denying the motion to intervene is vacated and the

matter is remanded to the district court with directions to grant the motion.


                                                  Entered for the Court


                                                  Stephen H. Anderson
                                                  Circuit Judge




litigation objective to quiet title to the road and the would-be intervenors had no
other objective. Id. at 997. In contrast, in WildEarth Guardians, the mine was
entitled to intervene as of right because the government had multiple objectives since
it represented the public interest and not just the private interests of the mine. Id.
Also, WildEarth Guardians recognized that government policy could shift to embrace
environmental goals and therefore the mine “should not be required to rely on the
[government] to represent its interests.” Id.
      Lastly, it is notable that the parties in San Juan County opposed intervention.
503 F.3d at 1167. In this case, the Forest Service does not contest intervention by the
environmental groups, and, thus, has not stated that its interests align with those of
the environmental groups or that it will represent their interests.


                                         - 10 -
13-2116, The New Mexico Off-Highway Vehicle Alliance v. United States Forest
Service et al.

GORSUCH, J., Circuit Judge, dissenting.

      Treat like cases alike: that may be the first and most prosaic duty of the

judge. Like most rules, this one may bear its exceptions. But the notion is so old

and so embedded in our sense of justice that its origins trace back almost as far as

our collective memory extends. Today that commonplace rule leads me to think

we should be in the business of affirming rather than reversing the district court’s

order in this regulatory dispute.

      In San Juan County v. United States, this court, sitting en banc, refused to

permit intervention as a matter of right under Fed. R. Civ. P. 24(a)(2). Exactly as

the district court did here. Compare San Juan, 503 F.3d 1163, 1203-07 (10th Cir.

2007), with Maj. Op. at 3.

      The en banc plurality in San Juan issued the narrowest and so controlling

ruling, see Marks v. United States, 430 U.S. 188, 193-94 (1977), and it held that

Rule 24(a)(2) doesn’t permit intervention as a matter of right if an existing party

already adequately represents that interest. Exactly as the district court did here.

Compare San Juan, 503 F.3d at 1203, with Maj. Op. at 3.

      The en banc plurality acknowledged that the government and the would-be

intervenors had locked horns before, but observed that the lawsuit brought them

together around a single, shared legal objective. Exactly as the district court did

here. Compare San Juan, 503 F.3d at 1204, with Maj. Op. at 3.
      The en banc plurality noted that the would-be intervenors were worried that

the government might not make the right arguments in pursuit of their shared

legal objective, that the government’s objective could shift during the litigation,

or that other rifts might emerge during the life of the case. But the plurality held

speculation of this sort isn’t enough to justify intervention as a matter of right

under Rule 24(a)(2). Exactly as the district court did here. Compare San Juan,

503 F.3d at 1206-07, with Maj. Op. at 7-8.

      Finally, the en banc plurality explained that if an actual, non-speculative

difference emerged between the would-be intervenors and the government during

the life of the lawsuit, that would be the proper time to consider intervention, not

before. Exactly the same holds true here. See San Juan, 503 F.3d at 1207;

Benjamin ex rel. Yock v. Dep’t of Pub. Welfare, 701 F.3d 938, 958 (3d Cir. 2012).

      Intervention confers much more than the power to argue before the court as

an amicus (a role no one’s been denied in our case). An intervenor becomes a

full-fledged party, able to conduct discovery, file motions, and add new issues

and complexity and delay to the litigation. Given the original parties’ interest in

resolving their controversy promptly — not to mention the public’s interest in

husbanding limited judicial resources — careful attention to Rule 24(a)(2) serves

important purposes. 7C Charles Alan Wright et al., Federal Practice and

Procedure §1904 (3d ed. 2007). All these considerations applied in San Juan,

and they apply no less here.

                                         -2-
      Simply put, the district court rejected intervention as a matter of right

because this case involves a single issue and there is no actual conflict between

the government and the would-be intervenors over how to approach it. In so

doing, the district court treated the motion to intervene exactly as the en banc

plurality in San Juan — and our subsequent decisions — said it should. Compare

Kane Cnty. v. United States, 597 F.3d 1129, 1135 (10th Cir. 2010) (denying

intervention by right where government and would-be intervenors agreed about

the only issue in the case), with WildEarth Guardians v. U.S. Forest Serv., 573

F.3d 992, 997 (10th Cir. 2009) (allowing intervention by right where government

had admitted its multiple objectives conflicted with would-be intervenors’

interests). Respectfully, I believe the district court’s order merits our affirmance.




                                         -3-
