Industry may intervene to oppose listing when environmentalists challenge decision not to list.
County of San Miguel v. MacDonald, 244 F.R.D. 36 (D.D.C., Aug 21, 2007)(business associations can have standing to intervene, even when only a remand is at stake).
ESA cases frequently involve interesting science and novel legal issues. However, as any DOJ (or in the author's case, former DOJ) litigator will attest, they also frequently address traditional matters such as federal jurisdiction. In County of San Miguel, the District Court considered the standing of a trade association seeking to intervene in an environmentalist challenge to a U.S. Fish & Wildlife decision not to list the Gunnison sage-grouse (best known for its unique mating rituals) as an endangered species. The National Audubon Society identified the bird as one of the U.S.'s top-ten most endangered species.
Photo from FWS, courtesy of Gunnison County
Visit more photos of a sage grouse mating ritual by Digital Grin
Concerned with the potential impacts of listing upon their economic interests, and especially the potential increase in regulatory restriction of member's use of their private lands, the Colorado Cattlemen's Association and others sought intervention. Applying the constitutional tests for intervention, the Court found that (1) members of the associations would indeed have a likelihood of injury and thus a right to sue in their own right, and (2) the associations intervention was fairly traceable to those injuries. In addition, applying the test for intervention as of right, pursuant to Rule 24(a)(2), F.R.C.P., the Court held that (a) the intervention was timely, (b) by satisfying the test of constitutional standing, the associations had proven legally protected interests to be at stake, (c) any judicial review of the decision not to list the sage grouse, even if it led only to a remand and reconsideration, could impair those legally protected interests by causing the associations and their members to devote further time to the ESA rulemaking procedures, and thus, detracting from their businesses, and (d) the general alignment of the FWS and associations regarding the decision not to list the species did not mean that FWS adequately represented the cattlemen and associations, because FWS represented the general public.
Accordingly, the Court granted the motion for intervention to the Colorado Cattlemen's Association.