Washington Law Review


In Kootenai Tribe of Idaho v. Veneman, the United States Court of Appeals for the Ninth Circuit misapplied Rule 24 of the Federal Rules of Civil Procedure by denying intervention of right to organizations that had protectable interests in the adoption and implementation of the Roadless Rule. The court based its decision to deny intervention of right on its federal defendant rule, which bars intervention of right by parties other than the federal government to defend a challenge brought under the National Environmental Policy Act (NEPA). The Kootenai decision extended the reach of the federal defendant rule to include environmental organizations that had actively participated in the challenged NEPA administrative rulemaking process. This extension contradicts Rule 24's focus on the practical effects of litigation and the Ninth Circuit's precedent of liberally granting intervention in public law cases. This Note argues that the Ninth Circuit should abandon the federal defendant rule and instead apply Rule 24 by individually evaluating whether absentees have a protectable interest within NEPA's zone of concern for the environment or have actively participated in the process of adopting the challenged regulation.

First Page