## Facts

- Congress enacted the Endangered Species Act (ESA) to protect plants and animals at risk of extinction.
- The Secretaries of the Interior and Commerce are responsible for ESA enforcement and delegated major responsibilities to the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS).
- FWS and NMFS revised ESA implementing regulations in 2019, with changes characterized by challengers as reducing regulatory protections for listed species.
- In October 2019, the Animal Legal Defense Fund (ALDF) sued in federal district court against FWS, NMFS, Secretary of the Interior David Bernhardt, and Secretary of Commerce Wilbur Ross, alleging violations of the Administrative Procedure Act (APA) and the National Environmental Policy Act (NEPA).
- Three sets of non-federal parties moved to intervene on the defense side: (1) a group of states, (2) a group of organizations representing regulated industries, and (3) a group of private landowners.
- The state applicants asserted interests tied to wildlife protection and management within their borders and argued that invalidating the 2019 regulations could affect their ability to manage species and related programs.
- The organizational applicants asserted that their members operate in industries regulated by ESA implementation and that setting aside the 2019 regulations could create compliance uncertainty and financial costs distinct from general public interests.
- The landowner applicants asserted interests as property owners and conservation-minded managers, claiming that changes to the regulatory framework could affect use and management of their lands.
- The intervention motions were filed at an early stage of the case, before merits rulings, and ALDF did not contest the applicants’ factual allegations about their interests.

## Issues

1. Whether the proposed intervenors (states, organizations, and landowners) were entitled to intervene as of right under Federal Rule of Civil Procedure 24(a)(2), including whether their motions were timely, they had interests related to the challenged ESA regulations, disposition of the action could impair those interests, and the federal defendants might not adequately represent them.
2. Whether, if intervention as of right was unavailable, the court should allow permissive intervention under Rule 24(b) based on shared legal and factual questions and the absence of undue delay or prejudice.

## Decision

- The court granted the motions to intervene as defendants.
- The court found the motions timely, emphasizing that they were filed close to the complaint and before the court issued substantive rulings.
- The court accepted that each intervenor group asserted interests connected to how ESA protections would be administered under the 2019 regulatory revisions, and that those interests could be practically affected if the regulations were set aside.
- The court concluded the intervenors satisfied Rule 24(a)(2)’s “inadequate representation” requirement because federal defendants must account for broader public obligations, while the intervenors claimed narrower state, economic, and property-related interests that could diverge in litigation choices.
- The court indicated that any manageability concerns could be addressed through case-management tools (such as coordinated briefing) rather than denying participation.

## Legal Principles

- Intervention as of right under Rule 24(a)(2) requires: (1) a timely motion, (2) an interest relating to the property or transaction at issue, (3) a practical risk that the action’s disposition may impair that interest, and (4) a showing that existing parties may not adequately represent the applicant’s interest.
- The burden to show possible inadequate representation is low; it is enough to show representation may be inadequate, especially where the existing defendant is a governmental entity charged with representing broad public interests.
- Timeliness is evaluated in light of the stage of the proceedings and prejudice; filing before merits rulings and near the start of the case generally weighs in favor of timeliness.
- Permissive intervention under Rule 24(b) may be allowed when the applicant shares common questions of law or fact with the main action and intervention will not cause undue delay or unfair prejudice.

## Conclusion

In this APA and NEPA challenge to the 2019 ESA regulatory revisions, the district court allowed states, regulated-industry organizations, and private landowners to intervene on the defense side, finding timely motions, interests that could be affected by the litigation’s outcome, and a sufficient possibility that federal defendants’ broad public role would not fully protect the intervenors’ more specific state, economic, and property interests.


Animal Legal Defense Fund v. Bernhardt, 2020 WL 6802837 (2020)