In The United States

Court of Federal Claims

No. 01-591 L

(Filed: February 28, 2005)

__________

Plaintiffs,

v.

THE UNITED STATES, Defendant,

PACIFIC COAST FEDERATION OF

FISHERMEN’S ASSOCIATIONS, INSTITUTE

FOR FISHERIES RESOURCES, THE

WILDERNESS SOCIETY, KLAMATH FOREST

ALLIANCE, OREGON NATURAL

RESOURCES COUNCIL, WATERWATCH OF

OREGON, NORTHCOAST ENVIRONMENTAL

CENTER, and SIERRA CLUB,

Defendant-Intervenor-Applicants.

*********************

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for plaintiffs.

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compensation under the Fifth Amendment, as well as damages for breach of contract, owing to

restrictions placed by the U.S. Bureau of Reclamation on the use, for irrigation purposes, of the

water resources of the Klamath Basin of southern Oregon and northern California. Eight

organizations – Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries

Resources, The Wilderness Society, Klamath Forest Alliance, Oregon Natural Resources

Council, WaterWatch of Oregon, Northcoast Environmental Center, and the Sierra Club – have

moved for leave to intervene in this action under RCFC 24(a)(2). These organizations all have

interests relating to the allocation and ownership of that water, which interests, they contend,

may be impacted by this litigation. Defendant takes no position on this motion, but plaintiffs

vigorously oppose it, asseverating that intervention of any of these organizations, either as of

right or via permission, is not authorized by RCFC 24.

As originally adopted in 1937, Rule 24(a) of the Federal Rules of Civil Procedure

provided for intervention of right only in two limited circumstances: when "the applicant is or

may be bound by a judgment in the action" or "is so situated as to be adversely affected by a

distribution or other disposition of property in the custody of the court or an officer thereof."

Fed. Rule Civ. Proc. 24(a)(2) and (3) (1937). In 1966, the scope of the rule was substantially

expanded. In explaining this change, the Advisory Committee noted that the earlier wording of

the rule was "unduly restricted" and prone to "poor results," finding instead that "[i]f an absentee

would be substantially affected in a practical sense by the determination made in an action, he

should, as a general rule, be entitled to intervene." Advisory Committee’s Notes on 1966

Amendments to Fed. Rule Civ. Proc. 24, 28 U.S.C.App., p. 756. Toward that end, it deleted the

"bound by a judgment" language to "free[] the rule from undue preoccupation with strict

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1.  Various courts had held that the "bound by a judgment" language applied only where a 1

decree in the pending litigation would be "res judicata of the rights sought to be protected

through intervention." Sutphen Estates, Inc. v. United States, 342 U.S. 19, 21 (1951); see also

Sam Fox Publ’g Co., Inc. v. United States, 366 U.S. 683, 694 (1961). By comparison, although

the language of this provision." See Charles Alan Wright, Arthur R. Miller and Mary Kay Kane,

RCFC 24(a)(2). The latter rule reads:

Upon timely application anyone shall be permitted to intervene in an action . . .

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.

By way of further analogy to the Federal Rules, the findings required by RCFC 24(a)(2) are

identical to those required by RCFC 19(a)(2), dealing with joinder of persons needed for just

Reflecting the breadth of the 1966 amendments, courts interpreting the newer version of

Rule 24(a)(2) generally have concluded that "the requirements for intervention are to be

may "as a practical matter impair or impede" an applicant’s ability to protect an interest relating

Fed. Cl. 305, 309 (2001) ("When analyzing this element, the court has considered the impact of

Federal Rules of Civil Procedure, but that provision finds no corollary in this court’s rules.

doubt concerning the propriety of allowing intervention should be resolved in favor of the

"broadly construed in favor of potential intervenors").

This court must also focus on the nature of the "interest relating to the property or

transaction which is the subject of action" that is required for intervention of right under RCFC

24(a)(2). Several decisions of the Supreme Court shed light on what is a qualifying "interest."

citing the Advisory Committee Notes as evidence that "some elasticity was injected" into the

corporation to be formed pursuant to a consent decree could intervene in the antitrust suit

considering that decree, thereby suggesting that the term "interest" is not limited to particular

property interests, but includes economic interests threatened by a ruling. Five years later, in

intervene of right in a proceeding to enforce a summons against a third party, concluding that the

phrase "interest" "obviously" means "a significantly protectable interest." More recently, Justice

that is accorded some degree of legal protection."

These decisions, though informative, hardly occupy the field, leaving to lower courts the

task of mapping further the contours of what is meant by an "interest." Numerous courts,

including the Federal Circuit, have risen to that task in observing that such an "interest" must be

which a sufficient "interest" has been found under Rule 24(a)(2) involve readily identifiable

("Interests in property are the most elementary type of right that Rule 24(a) is designed to

protect."). But, as Judge Posner has reminded, Rule 24(a) "does not require that the intervenor

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4.  The court does not mean to suggest that these cases represent unanimity on this point, 4

with some courts certainly adopting a more relaxed definition of "interest" and others espousing

a stricter view. See Brian Hutchings, Waiting for Divine Intervention: The Fifth Circuit Tries to

Give Meaning to Intervention Rules in Sierra Club v. City of San Antonio, 43 Vill. L. Rev. 693,

714-19 (1998) (discussing cases across the spectrum); see also Harris v. Reeves, 946 F.2d 214,

123, 130 (2d Cir. 2001) ("Rule 24(a)(2) requires not a property interest, but, rather, ‘an interest

relating to the property or transaction which is the subject of the action.’"). Thus, other types of

interests have been found to justify intervention, among them economic and business interests, as

well as those involving access to public resources or the enforcement of statutory rights conferred

With these principles as reference points, the court concludes that at least one of the

applicants is entitled to intervene in this case, as a matter of right: the Pacific Coast Federation of

Fishermen’s Associations (the PCFFA), a group of 25 West Coast fishermen’s organizations

representing approximately 3,000 small commercial fishermen, most of whom derive all or part

of their income from Pacific salmon that spawn in the waters of the Klamath Basin. In the

court’s view, the PCFFA possesses a legally protectable interest involving the water of the

Klamath Basin that is "related to the property or transaction" at issue, one that lies in maintaining

access to that water and ensuring that it is allocated in a fashion that promotes its fishing

interests. One looking for evidence of the nexus between that interest and this litigation need go

no further than the motion filed by plaintiffs herein which urges this court to find that they have a

property interest in the waters of the Klamath Basin. A finding that such a property interest

exists undoubtedly would impair or impede PCFFA’s ability to claim, in the future, that the same

waters should be used in a less-restricted or unrestricted fashion that promotes their fishing

interests. And it is no answer to assert, as plaintiffs have, that the Endangered Species Act

in the Klamath Basin, whether or not its actions occasion a taking. To the contrary, there is

indication neither that the ESA is designed to protect commercial fishing interests of the sort

ESA are so clearly identified as to dictate the Bureau’s choices in accomplishing the goals of that

statute. Indeed, with commendable candor, government counsel has admitted that a finding by

this court that plaintiffs are entitled to just compensation would cause the Bureau of Reclamation

to think twice before allocating water to fishing interests at the expense of further irrigation,

potentially causing the Bureau to allocate less water to the former interests than it might

depends not on prior decisions alone, but also on how the government and property owners

believe courts will resolve future takings claims.").

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In the court’s view, it is also beyond peradventure that the disposition of this case "may

as a practical matter impair or impede the applicant’s ability to protect" its interest. For one

findings adverse to PCFFA made here (particularly if those findings were affirmed by the Federal

Circuit). And even were this not true, PCFFA’s interests could be impaired or impeded to the

prohibited from relitigating in other fora questions involving plaintiffs’ entitlement to the water

in question. In other words, although the interests of the United States and PCFFA do not

entirely coincide, they considerably overlap – certainly enough to give rise to the distinct

possibility that a ruling against the United States would have significant impacts on the allocation

of the water in the Klamath Basin and corresponding negative impacts on PCFFA’s fishing

interests. That the precise relationship between the availability of such water and the health of

the Pacific fisheries remains debatable does not render PCFFA’s interest "contingent." To rule

otherwise would be tantamount to requiring PCFFA to prove what might be the entirety of its

case elsewhere in order to intervene here, a proof requirement that runs counter to the general

ultimate merits of the claims which the intervenor wishes to assert following intervention");

application for intervention cannot be resolved by reference to the ultimate merits of the claim

the intervenor seeks to assert unless the allegations are frivolous on their face.").

states that "[i]ntervention is proper only to protect those interests which are ‘‘of such a direct and

immediate character that the intervenor will either gain or lose by the direct legal operation and

(1892)). But, at the outset, it is critical to note that, read in context, the quoted language was

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commentary on that portion of the rule which requires a court to decide whether the disposition

of the action "may as a practical matter impair or impede the applicant’s ability to protect that

interest." Were this court to subscribe to plaintiffs’ more sweeping construction of this language,

it would have to conclude that the Federal Circuit intended to emasculate the changes wrought by

the 1966 amendments, and did so indirectly, in the guise of defining what is an "interest" within

the meaning of the new rule. If plaintiffs are correct, the Federal Circuit could scarcely have

liberally from the 1966 Advisory Committee notes, broadly applied the practical impairment

requirement of the rule in granting intervention status to parties whose only claim was that

enforcement of a discovery order against a third party would compromise their defense of an

notion that the term "interest," as used in the new version of Rule 24, could be construed

narrowly so as effectively to reinstate the "bound by" language of the prior rule, stating that it

would be unfortunate "to allow the inquiry to be led once again astray by a myopic fixation upon

rule and the wealth of authority construing it, the court has no hesitation in concluding that the

interests under RCFC 24(a)(2) must not be indirect or contingent, and not to preclude a finding

plaintiff’s contrary contention is to rise above its source and eviscerate the rule.

intervention. For example, while expressing nominal adherence to the practical impairment

language of RCFC 24(a), at least two decisions have suggested that applicants must show that

431 (1993). To be sure, along with predictability and consistency, certainty is one of the core

Federal law of which this court is aware has ever imposed certainty as a requirement of proof,

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6.  Notably, the Supreme Court’s decision in Smith, cited both in American Maritime and 6

AT&T, did not involve some predecessor to the current intervention rules, but rather section 90 of

had "an interest in the matter in litigation." Smith, 144 U.S. at 517. Thus, the only common

in his dissent in Cascade Natural Gas, indicated that the language in Smith is "of limited use in

deciding particular cases" involving Rule 24. Cascade Natural Gas, 386 U.S. at 145 (Stewart, J.,

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particularly at the outset of litigation – and RCFC 24(a) is no exception, as it only requires that

and any other case requiring more than this basic, threshold showing require too much, and run

interest "potentially" be impaired or impeded).

Other cases have flipped the Federal Circuit’s teaching that RFC 24 "be construed in

this court’s "limited" jurisdiction into any discernible limitation on intervention. If, as has been

hinted, the concern is that this court does not have jurisdiction over disputes between two private

24(a) moribund. If, instead, the concern is that this court does not have independent jurisdiction

over the intervenor – that the applicant, for example, is not covered by the Tucker Act – that

likely would be true of every putative intervening defendant, wiping out the most common form

of intervention here. The answer to these enigmas is that, at least for intervening defendants, this

court’s "limited" jurisdiction is no limitation at all, for two reasons. First, it is well-accepted that

defendants intervening as a matter of right need not have independent jurisdictional grounds, but

established jurisdictional doctrine, which rests on "considerations of judicial economy and

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7.  See Phelps v. Oaks, 117 U.S. 236 (1886); Sweeney v. Athens Reg’l Med. Ctr., 917 F.2d 7

1560, 1566 (11 Cir. 1990) ("ancillary jurisdiction can support" intervenor of right); Int’l Paper th

Co. v. Inhabitants of Town of Jay, Me., 887 F.2d 338, 346 (1 Cir. 1989) ("As a general rule, st

parties entitled to intervention as of right under Rule 24(a) fall within a federal court's ancillary

jurisdiction; no independent basis of jurisdiction is, therefore, necessary."); Curtis v. Sears,

Roebuck & Co., 754 F.2d 781, 783 (8th Cir.1985) ("intervention of right is a proper vehicle for

the exercise of the court's ancillary jurisdiction"); Babcock & Wilcox Co. v. Parsons Corp., 430

intervenor's claim"); Lesnik v. Pub. Indus. Corp., 144 F.2d 968, 973-74 (2d Cir. 1944) ("the

matters where its jurisdiction has once been competently invoked"); see also Zahn v. Int’l Paper

Co., 414 U.S. 291, 306 (1973) (Brennan, J. dissenting) (the Supreme Court has sustained the

728, 738 (D.C. Cir. 1969), is as applicable here as in any Federal court, all of which, of course,

Jabberwock, the concerns over intervention previously expressed about this court’s "limited"

jurisdiction ultimately prove a fiction.

impairment required by Rule 24(a), but conclude that such is not the case if the precedent is not

Cl. 645, 655 (2004). Snatching with the right hand what they dangle with the left, these cases

the former, at least in any trial court – after all, in our Federal system, no trial court opinion is

intervention, courts have used that term in such a cramped fashion – to refer only to binding,

rather than persuasive, authority – the narrowness of which would clash with accepted meanings

8.  Under ancillary jurisdiction, a court acquires "jurisdiction of a case or controversy as an 8

entirety, and it may, as an incident to the disposition of a matter properly before it, possess

jurisdiction to decide other matters raised by the case of which it could not take cognizance were

they independently presented." Federal Practice and Procedure § 1917, at 460; see also

Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 379-80 (1994). Because such

defined in Black's Law Dictionary as meaning ‘to abide by, or adhere to, decided cases.’ Black's

means that like facts will receive like treatment in a court of law"). Also describing the doctrine

in more general terms, Justice Cardozo once wrote:

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concerns that, under the doctrine, an adverse opinion would have persuasive impact in another

District Court here, the first judicial treatment of this question, would receive great weight,

suggested otherwise essentially construe Rule 24(a) as if it had not been amended in 1966 to

Admittedly, this court is loath to disagree with the cited decisions, but, in the end, it is

by the plain language of RCFC 24(a), this court simply cannot ignore the practical reality that,

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[I]n a system so highly developed as our own, precedents have so covered the

ground that they fix the point of departure from which the labor of the judge

begins. Almost invariably, his first step is to examine and compare them. If they

are plain and to the point, there may be need of nothing more. Stare decisis is at

least the every day working rule of our law.

Benjamin Cardozo, The Nature of the Judicial Process 20 (1921); see also Gilman v. City of

Philadelphia, 70 U.S. 713, 724 (1865) (describing broadly the philosophical underpinnings of the

10.  The court does not mean to suggest that intervention may be had in every case in 10

which a decision might have an adverse effect as stare decisis. Here, there is the potential that

rulings will be rendered with respect to the very water and related transactions that might be at

issue in a later proceeding. The court only holds that such a conjunction of issues and subject

matter warrants intervention.

11.  Curiously, to this court’s knowledge, the limitations on intervention imposed in these 11

cases rarely, if ever, have been applied by this court in regularly granting intervention to

awardees in contract bid protest actions. Indeed, this court’s rules anticipate that intervention

will be granted to such awardees, see RCFC Appendix C, para. 8, despite the fact that: (i) it is not

"certain" that their interests will be adversely impacted by this court’s ruling; (ii) this court

would lack jurisdiction over a direct dispute between the awardee (none of which, mind you,

have claims against the United States) and the protester; and (iii) this court’s rulings would not

be binding precedent, except where law of the case or res judicata considerations applied. In

addition, there is no indication that this court has applied anything approaching these rigorous

limitations in construing the identical requirements for joinder in RCFC 19. See Perch Assocs.

L.P. v. United States, 20 Cl. Ct. 456, 456-57 (1990) ("Public policy would have all courts greatly

will – and should – be impacted by a prior opinion dealing with the same issues and subject

matter. Indeed, the Supreme Court has observed that such consistency principles "are at their

(1997). Where, as here, the potential of additional litigation involving the same resources looms

large, a putative intervenor should be allowed to prevent the development of adverse precedents

that undoubtedly will be wielded against it in the future. To the extent prior decisions of this

Finally, under RCFC 24(a), the applicant must also show that its interest is not

"adequately represented by existing parties." The burden of demonstrating inadequacy of

representation is not heavy: according to the Supreme Court, this requirement "is satisfied if the

applicant shows that representation of his interest 'may be' inadequate; and the burden of making

(1972). As to PCFFA, the court finds that this requirement is met because the government’s

interest in this litigation does not coincide with the economic concerns of the Pacific fishing

industry. Colloquially speaking, PCFFA cannot expect the government to "carry its water" – at

Service would not adequately represent interests of timber industry in defending lawsuit brought

by environmental group, because the "government must represent the broad public interest, not

just economic concerns of the timber industry."). Defendant does not claim to the contrary, nor,

adequately represented by government where past conduct revealed divergence). The fact that

this court concludes that PCFFA should be allowed to intervene, however, does obviate the

necessity of determining whether the remaining applicants should be granted intervenor status

because, in the court’s view, PCFFA will adequately represent those applicants’ interests, as

thus is entitled to intervene as a defendant in this action, as a matter of right. The court does not

believe that granting this intervention will unduly delay or prejudice the adjudication of the rights

of the original parties. Though plaintiffs’ counsel views with alarm the consequences of a ruling

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12.  The court thus does not decide whether these applicants meet the other requirements of 12

RCFC 24(a)(2). Should they wish, these parties may continue to join PCFFA in making filings

in this case, albeit as amici.

13.  Plaintiffs have not raised any serious question regarding the timeliness of the 13

intervention application here. Given the nascent status of these proceedings, the court believes

that the application most certainly was timely.

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permitting this intervention, it bears emphasis that the court has adequate facility to limit the

issues which may be presented in a proceeding and, in particular, to prevent extraneous issues

that might prove disruptive from being injected into this already complex suit. Accordingly, the

to the extent consistent with this opinion.

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