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Kleissler v. U.S. Forest Service

September 30, 1998

JAMES 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



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. No. 97-cv-02187)

Before: Becker, Chief Judge, Aldisert and Weis, Circuit Judges.

The opinion of the court was delivered by: Weis, Circuit Judge,

Argued: June 10, 1998

OPINION OF THE COURT

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 an 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 16 U.S.C. § 1604. The process is described in some depth in Ohio Forestry Association v. Sierra Club, 118 S.Ct. 1665 (1998) and need not be detailed here. The statute also imposes procedural obligations on the Secretary to ensure that environmental interests will be considered in the plan.

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 36 C.F.R. § 219.3; see also Sierra Club v. Espy, 38 F.3d 792, 795, 798-800 (5th Cir. 1994) (discussing the technique and Congressional approval at some length). In launching the projects, the Service concluded that they were consistent with the resource plan and would not create a significant environmental impact within the forest.

The plaintiffs' complaint alleges that the projects violate the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, because of the lack of an environmental impact statement and, among other things, the failure to consider more environmentally-protective alternatives. The complaint also alleges several violations of the National Forest Management Act, including an objection to even-aged management and the "landscape corridor approach," which endorses the even-aged timber-cutting philosophy.

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 Smethport. 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. 16 U.S.C. § 500. In turn, the Commonwealth forwards these sums to counties where the forest is situated, which then pass the money on to local municipalities and school districts for the benefit of public schools and roads. 72 Pa.C.S.A. §§ 3541-3543. During the ten years preceding the filing of this suit, the federal government disbursed, on average, in excess of $4 million per year to the Commonwealth.

Elimination of logging contracts would deprive the localities of this resource.

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 Project. 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 that they are not the type of protectable interests that justify intervention as of right under Rule 24(a)(2)." The court also denied permissive intervention under Rule 24(b)(2). All of the unsuccessful applicants have appealed.

I.

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 Federal Rule of Civil Procedure 54(b) and are appealing the adverse district court ruling. Because that order and any future adverse action on the remaining claim might be reversed by this Court or the Supreme Court, the applicants' ability to participate remains a viable issue. This appeal consequently is not moot. Mausolf v. Babbitt, 85 F.3d 1295, 1297 (8th Cir. 1996); United States Postal Serv. v. Brennan, 579 F.2d 188, 190 n.1 (2d Cir. 1978).

II.

Federal Rule of Civil Procedure 24 provides in pertinent part:

"(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 Rule 24(a)(2) to require proof of four elements from the applicant seeking intervention as of right: first, a timely application for leave to intervene; second, a sufficient interest in the litigation; third, a threat that the interest will be impaired or affected, as a practical matter, by the Disposition of the action; and fourth, inadequate representation of the prospective intervenor's interest by existing parties to the litigation. Mountain Top Condo. Ass'n. v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 365-66 (3d Cir. 1995); Development Fin. Corp. v. Alpha Hous. & Health Care, Inc., 54 F.3d 156, 161-62 (3d Cir. 1995); United States v. Alcan Alum., Inc., 25 F.3d 1174, 1181 (3d Cir. 1994); Brody v. Spang, 957 F.2d 1108, 1115 (3d Cir. 1992); Harris v. Pernsley, 820 F.2d 592, 596 (3d Cir. 1987).

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 have 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 (1971). That observation, however, has not led to a"precise and authoritative definition" of the interest that satisfies Rule 24(a)(2). Mountain Top Condo., 72 F.3d at 366; see also Conservation Law Found. v. Mosbacher, 966 F.2d 39, 41 (1st Cir. 1992) ("no bright line of demarcation exists"). Some courts treat the "interest" test as a pragmatic process that qualifies as many concerned parties as is compatible with efficiency. Others reject interests that are "speculative." Often the determination of whether an interest is significantly protectable is "colored to some extent" by the "practical impairment" inquiry. Conservation Law Found., 966 F.2d at 41-42.

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 prison and that a consent decree placing a ceiling on the prison population would only tangentially affect his ability to prosecute. 820 F.2d at 599-603. By contrast, Alcan Aluminum held that an adequate interest for intervention had been established where a right of contribution for ...


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