APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. NO. 08-cv-608-MSK-CBS).
The opinion of the court was delivered by: Tymkovich, Circuit Judge.
Before BRISCOE, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.
This appeal arises from WildEarth Guardians' lawsuit challenging the National Park Service's proposal to reduce the elk population in Rocky Mountain National Park. Safari Club International and Safari Club International Foundation (referred to together as Safari Club) are two organizations representing hunting and conservation interests which participated in the administrative proceedings that led to the promulgation of the National Park Service's elk population management plan. Safari Club sought to intervene as of right in WildEarth's lawsuit as a party defendant pursuant to Federal Rule of Civil Procedure 24(a)(2), or, in the alternative, to intervene permissively, under Federal Rule of Civil Procedure 24(b).
The district court denied Safari Club's motion to intervene and Safari Club appealed. Because "[a]n order denying intervention is final and subject to immediate review if it prevents the applicant from becoming a party to an action," Coal. of Ariz./N.M. Counties for Stable Econ. Growth v. DOI, 100 F.3d 837, 839 (10th Cir. 1996), we have jurisdiction under 28 U.S.C. § 1291.
We find the district court erred in ruling on Safari Club's motion to intervene. Safari Club demonstrated that it has a substantial interest in the district court proceedings and that its interest might be impaired as a result of the litigation. Further, on the record presented, we decline to determine whether any of the existing parties can adequately represent Safari Club's interest.
Accordingly, we REVERSE and REMAND with instructions to consider whether the National Park Service can adequately represent Safari Club's interest.*fn1
After a lengthy administrative proceeding, the National Park Service (sometimes referred to as the NPS) established a plan to reduce the negative effects of an oversized elk population at Rocky Mountain National Park (sometimes referred to as RMNP). In developing the Rocky Mountain National Park Elk and Vegetation Management Plan, the NPS considered five alternative action plans: (1) no action; (2) immediate lethal removal; (3) gradual lethal removal together with the use of fencing and distribution techniques; (4) fertility control combined with gradual lethal removal; and (5) lethal removal coupled with the release of predatory, sterile gray wolves.
In accordance with required administrative and environmental procedures, the NPS adopted the third alternative elk management plan- combining gradual lethal removal, fencing, and dispersal. This plan calls for "NPS Staff and authorized agents" to lethally reduce, i.e., "cull," the elk over time. Under the plan, "authorized agents" can include "qualified volunteers." The plan requires that all individuals participating in culling activities be certified in firearms training, be specially trained in wildlife culling, and pass a proficiency test.
Safari Club supports and advocates the conservation and management of wildlife, and promotes using hunting, among other things, as a conservation and management tool. The group is active nationally in efforts to conserve and manage wildlife, including the gray wolf. The organization's members enjoy recreational activities, including hunting, in areas near RMNP. While the NPS was considering the alternative action plans, Safari Club submitted written comments supportive of managing wildlife generally and at RMNP specifically, controlling the park's elk population, and using volunteers to carry out culling activities. Following the NPS's selection of the third action plan, several Safari Club members volunteered as "authorized agents" to participate in elk culling at RMNP.
After the NPS announced which elk management plan it had chosen, WildEarth Guardians, an environmental interest organization opposed to the adopted plan, filed an action contesting the plan in district court. WildEarth claimed that in formulating the plan the NPS violated the National Environmental Policy Act, 42 U.S.C. §§ 4321S4347, by not considering the introduction of predatory, fertile gray wolves as a means of managing RMNP's elk population. WildEarth also claimed that the plan violates the NPS Organic Act, 16 U.S.C. §§ 1S4, and the Rocky Mountain National Park Act, 16 U.S.C. §§ 191S195a, because "culling" is "hunting" and those laws prohibit hunting in the national park.*fn2 Finally, WildEarth claimed the plan violates the Endangered Species Act, 16 U.S.C. §§ 1531S1544, because it does not adequately address conservation of the gray wolf. In addition to seeking declaratory relief for those claims,*fn3 WildEarth requested that the district court compel the NPS to consider releasing fertile gray wolves as an elk management alternative, enjoin the NPS from hunting elk, and compel the NPS to take measures supporting gray-wolf conservation at RMNP.
Safari Club moved to intervene as a defendant in WildEarth's suit against the NPS. In its motion to intervene and supporting memorandum, Safari Club elaborated on its interest in supporting the NPS's elk management plan, including (1) its endorsement of sustainable use wildlife management and conservation techniques, (2) its members' interests in hunting and otherwise enjoying wildlife in and near RMNP, (3) its approval of the use of volunteers in culling activities, and (4) its desire to prevent gray wolves from being used to control RMNP's elk population. Safari Club also expressed an interest in supporting qualified hunters' ability to participate in wildlife management activities conducted on national park lands generally.*fn4
Safari Club asserted those interests would be impaired or impeded if WildEarth succeeded in its case. In particular, Safari Club noted that a decision in favor of WildEarth would be contrary to its interests in several ways: it would (1) cause the methods selected to manage and conserve elk at RMNP, which Safari Club supports, to be set aside or altered; (2) lead to the introduction of gray wolves as a means of managing RMNP's elk population, which Safari Club opposes; and (3) prevent, contrary to Safari Club's preferences, volunteers from participating in culling activities at RMNP and other national parks.*fn5
Finally, Safari Club contended the NPS could not adequately represent it. Safari Club argued the NPS and the public do not necessarily share some of its specific interests, such as protecting and furthering the use and enjoyment of hunting on public lands, opposing the release of gray wolves for wildlife management purposes, and supporting the participation of volunteers in culling activities.
The district court denied Safari Club's motion to intervene. In doing so, it identified and assessed two interests of Safari Club: (1) preserving the quality of the opportunities to use lands and wildlife near RMNP, and (2) maintaining the possibility that volunteers might participate in culling activities at RMNP. The district court held that the former was not at significant risk of impairment, because a decision in WildEarth's favor would only cause the elk management issue to be remanded to the National Park Service for further consideration and would not lead with certainty to a release of gray wolves. The district court found the latter too speculative, because, at that point, Safari Club's members possessed nothing more than an abstract hope of being selected to participate in culling activities at RMNP. Because ...