Ninth Circuit Decision on Intervention in Groundfishery Rulemaking Litigation

The Ninth Circuit just released its decision in a lawsuit regarding groundfish regulations on the West Coast.  The case is West Coast Seafood Processors Association ("Association") v. Natural Resources Defense Council, Inc. and the decision can be downloaded here.

The Natural Resources Defense Council filed a lawsuit against the National Marine Fisheries Service challenging aspects of the Pacific Coast Groundfish Fishery Management Plan.  At first, the Association participated as an amicus party.  NMFS published various amendments to the Plan year after year and NRDC amended its complaint to challenge the new plans.  The Association sought to intervene at several points after amendment of NRDC's complaint.  The trial court denied intervention, noting the age of the litigation (eight years), discounting the time from the intervention motion from the filing of the amended complaint (two days).  The Association appealed to the Ninth Circuit Court of Appeals.  Pending the appeal, the trial court partially ruled for NRDC and partially for NMFS and the parties apparently settled the dispute thereafter.

The issue for the appeals court is whether the Association's appeal was mooted by the underlying settlement.  The Ninth Circuit held that it was.  Under federal law, a case is not moot if the controversy is capable of repetition yet evade judicial review.  The majority opinion found that it was not capable of repetition because NMFS fisheries regulations are only good for two years, ergo a challenge to those regulations was not capable of repetition.

Judge Bea dissented (in an opinion that was double the length of the majority).  Judge Bea found the case entirely likely to repeat yet evade judicial review, noting that the action challenged by NRDC was too short in duration to be fully litigated on appeal.

Intervention can be a potent device to shape litigation, particularly in environmental litigation.  There are procedural hurdles, as this opinion demonstrated, but the only true way to have a seat at the table is to intervene.