                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          AUG 18 1999
                           FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    WYOMING OUTFITTERS
    ASSOCIATION, doing business as
    Wyoming Outfitters and Guides
    Association; JIM ALLEN; TIM
    TREFREN; JOHN WINTER; BOBBI                         No. 98-8088
    WADE; VINCE VAN ROEGEN; KIM                   (D.C. No. 98-CV-1027-J)
    R. CARRARA; WALTER LEE                               (D. Wyo.)
    JONES; CRAIG ARTMAN; CRAIG
    LARSEN,

              Plaintiffs-Appellees,

    v.

    WYOMING GAME AND FISH
    COMMISSION; HAL CORBELT;
    LEE HENDERSON; TRACY HUNT;
    L. GARY LUNDUALL; J. MICHAEL
    POWERS; MIKE HUNZIE; JOHN
    BAUGHMAN,

              Defendants-Appellees,

    WYOMING WILDLIFE
    FEDERATION,

              Appellant.


                           ORDER AND JUDGMENT            *




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
                                                                       (continued...)
Before TACHA , McKAY , and MURPHY , Circuit Judges.



       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.

       The Wyoming Outfitters Association and individual outfitters (Outfitters)

brought suit against the Wyoming Game and Fish Commission and its

Commissioners, alleging that the Commission’s scheme for licensing deer and elk

hunters is unconstitutional because it discriminates against out-of-state hunters.

The Wyoming Wildlife Federation (WWF) sought to intervene in the action, both

as of right and permissively,   see Fed. R. Civ. P. 24(a) and (b). The matter comes

to us on the district court’s denial of the WWF’s motion to intervene in either

posture. “An order denying intervention is final and subject to immediate review

if it prevents the applicant from becoming a party to an action.”      Coalition of

Arizona/New Mexico Counties for Stable Economic Growth v. Department of the

Interior , 100 F.3d 837, 839 (10th Cir. 1996). After      de novo review of the district



*
 (...continued)
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                            -2-
court’s denial of the WWF’s motion to intervene as of right,      see Alameda Water

& Sanitation Dist. v. Browner , 9 F.3d 88, 90 (10th Cir. 1993), we reverse.    1



              Intervention under Rule 24(a)(2) should be granted when a
       timely motion to intervene demonstrates that (1) the intervenor has
       an interest in the property or transaction that is the subject matter of
       the action, (2) the interest might be impaired absent intervention, and
       (3) the existing parties will not adequately represent the interest.

Id. The district court found that the motion was timely and that the WWF has an

interest in the licensing scheme that might be impaired, and it identified the

question of adequate representation as the “real concern.” Appellant’s App. at

97-98. In fact, in arguing the motion to intervene before the district court, the

parties did not dispute these first two requirements. On appeal, the Outfitters

argue that WWF has not shown that its interest might be impaired if it is not

allowed to intervene. Appellee’s Br. at 3. Because they did not make that

argument in opposing the intervention motion in the district court, we will not

consider it for the first time on appeal.    See Walker v. Mather (In re Walker)   , 959

F.2d 894, 896 (10th Cir. 1992).       Therefore, our determination of whether the

district court erred in denying the WWF’s motion to intervene as of right turns on

whether the Wyoming Game and Fish Commission would not adequately represent

the WWF’s interest.


1
      Because we hold that the WWF should have been allowed to intervene as a
matter of right, we do not reach the district court’s discretionary denial of WWF’s
motion for permissive intervention.

                                             -3-
      “The burden is on the applicant in intervention to show that the

representation by the existing parties may be inadequate, but this burden is

‘minimal.’” Coalition , 100 F.3d at 844 (quoting   National Farm Lines v.

Interstate Commerce Comm’n , 564 F.2d 381, 383 (10th Cir. 1977)).

      An applicant may fulfill this burden by showing collusion between
      the representative and an opposing party, that the representative has
      an interest adverse to the applicant, or that the representative failed
      in fulfilling his duty to represent the applicant’s interest. The
      possibility of divergence of interest need not be great in order to
      satisfy the burden of the applicants. However, representation is
      adequate when the objective of the applicant for intervention is
      identical to that of one of the parties.

Coalition , 100 F.3d at 844-45 (quotations and citations omitted).

      Our decisions in Coalition and National Farm Lines control this case.     2
                                                                                    In



2
       Because the interests of the WWF and the State are not identical, there is
no presumption that the State’s representation will be adequate.      See Bottoms v.
Dresser Indus., Inc. , 797 F.2d 869, 872 (10th Cir. 1986). We note, however, that
Bottoms identifies showings that would overcome the presumption of adequate
representation, see id. at 872-73, and those are the same showings identified in
Coalition as adequate to meet the minimal burden of showing inadequate
representation, see 100 F.3d at 844-45. To the extent that these cases present an
inconsistency, it is only one of form and not of substance. If an applicant in
intervention shows that he has an interest adverse to the representative’s, he
meets the minimal burden under Coalition of showing a possibility of inadequate
representation. 100 F.3d at 844-45. If he makes a similar showing in a case
where his interests are identical to the representative’s, he overcomes the
presumption of adequate representation as set forth in      Bottoms . 797 F.2d at
872-73. Therefore, in this case, even if the State’s and the WWF’s interests were
identical, the WWF has shown circumstances that could make the State’s
representation inadequate, thereby overcoming any presumption of adequate
representation.

                                         -4-
National Farm Lines , groups of registered motor carriers sought to intervene in an

action against the Interstate Commerce Commission (ICC) that challenged the

laws and regulations protecting registered motor carriers against competition from

unregistered motor carriers. We held that the ICC, which promulgated the

regulations favoring the registered carriers, might not adequately represent the

interests of the registered motor carriers and, consequently, they had a right to

intervene. National Farm Lines , 564 F.2d at 383-84. In        Coalition , an individual

sought to intervene in an action against governmental agencies brought by an

organization promoting economic growth. The suit challenged the Fish and

Wildlife Service’s protection of the Mexican Spotted Owl under the Endangered

Species Act. There we held that the intervenor had “made the minimal showing

necessary to suggest that the government’s representation may be inadequate”

based on the Department of the Interior’s obligation to represent the public

interest, which might differ from the individual’s interest.     Coalition , 100 F.3d at

845-46.

       As in those cases, we are again presented with

       “the familiar situation in which the governmental agency is seeking
       to protect not only the interest of the public but also the private
       interest of the petitioner in intervention, a task which is on its face
       impossible. The cases correctly hold that this kind of a conflict
       satisfies the minimal burden of showing inadequacy of
       representation.”

Id. at 845 (quoting National Farm Lines , 564 F.2d at 384).

                                             -5-
       At the hearing on the motion to intervene, the attorney appearing for the

State representing the Wyoming Game and Fish Commissioners, informed the

court that the State’s position was that the State could not adequately represent

the interests of the WWF because their interests were not identical. Appellant’s

App. at 89. The court questioned this position, and the State attorney explained

that “the State is in a position of regulating these animals and that’s

fundamentally a different role than the Wildlife Federation members who I would

characterize as more the consumers of the wildlife, and so our interests come

from different directions.”   Id. at 90. In the ensuing discussion, the State attorney

again emphasized the divergent interests by pointing out that “there are different

options of [hunting license] allocation that would probably meet the Game & Fish

Commission’s ultimate goals,” but that the WWF was seeking to keep the specific

allocation system that the plaintiff was challenging as unconstitutional.   Id. at 96.

The State’s own opinion that it cannot adequately represent the WWF’s interests

because those interests are fundamentally different from its own speaks to the

State’s “frame of mind” and its commitment to the WWF, and it is certainly

indicative of the possibility that the State might not adequately represent the

WWF’s interest. We hold that, under the specific circumstances of this case, the

WWF has made the minimal showing necessary to suggest the State’s




                                            -6-
representation may be inadequate.      3



       In addition to the State’s own position that it could not adequately represent

the WWF’s interests, the WWF submitted a letter written in 1995 by the Governor

of the State of Wyoming (who appoints the Game and Fish Commissioners) to the

Game and Fish Commissioners asking their support in “aggressively pursu[ing]

creative options” to the limitations on nonresident licenses imposed by the current

allocation regulations. Appellant’s App. at 58 (Ex. A to WWF’s motion to

intervene).   4
                  While we do not see these facts as establishing any sort of collusion,

we view this as further evidence of the possibility that the State will not

adequately represent the interests of the WWF.

       Our holding is also based on the fact that the Outfitters seek more in their


3
       We disagree with the Outfitters’ statement that the State attorney admitted
after questioning that the State did have the capacity to represent the WWF’s
interest. See Appellee’s Br. at 8. To the contrary, the State never changed its
position that, because of the fundamental differences in their interests, the State
could not adequately represent the WWF’s interests. The district court asked the
attorney how many lawyers worked for the State of Wyoming, to which the State
attorney replied, sixty. Appellant’s App. at 91. The district court then asked “Do
you feel you have enough legal talent to raise issues in this case?”  Id. The State
attorney responded that was not a problem. The attorney was merely stating that
the State had enough legal power to present its own case, a statement entirely
consistent with its position that it could not adequately represent the WWF’s
interests. The State’s inability to represent the WWF’s interests is not a function
of manpower, it is a function of the fundamental differences in their interests.
4
      The Outfitters state in their brief on appeal that the governor subsequently
recanted this letter, Appellee’s Br. at 6, 7, but there is nothing in the record to
support that statement.

                                             -7-
action than a declaration that the current allocation scheme is unconstitutional. In

their amended complaint, they request injunctive relief, proposing two specific

alternatives: (1) “[t]hat the Court issue an order compelling the defendants to

issue a license for all outfitted interstate hunters so long as residents have

unlimited licenses and/or don’t have to draw;” or (2) “that the Court issue a

mandatory injunction ordering defendants to issue all big game licenses equally

between residents and interstate hunters until or unless a more equitable

allocation system is devised.”   Id. at 32-33. Even to the extent that both the

State’s and the WWF’s objective is to establish the constitutionality of the current

allocation scheme, if the district court decides to the contrary, there can be little

debate that the State’s and the WWF’s interests may diverge at that point.       See

Hazardous Waste Treatment Council v. South Carolina (In re Sierra Club)          , 945

F.2d 776, 780 (4th Cir. 1991) (holding that, although the interests of Sierra Club

and state agency converge in arguing that state regulation is constitutional, the

interests may diverge if the case reaches the point of analysis of injunctive relief).

The WWF wants the current scheme upheld. The State has indicated, however,

that there are several allocation schemes that could achieve its objectives,

possibly among them the two alternatives proposed by the Outfitters in their

complaint.

       The WWF “has made the minimal showing necessary to suggest that the


                                           -8-
[State’s] representation may be inadequate.”     Coalition , 100 F.3d at 846. Because

the WWF has a direct, substantial, and legally protectable interest in the subject

of the action that may be impaired by the determination of the action, and because

no party will adequately represent its interest, we hold that the WWF has a right

to intervene in the action pursuant to Fed. R. Civ. P. 24(a)(2). Accordingly, we

REVERSE the district court’s denial of the motion to intervene, and we

REMAND this case to the district court for further proceedings.



                                                      Entered for the Court



                                                      Monroe G. McKay
                                                      Circuit Judge




                                           -9-
