e-Bulletin: Court Allows State Water Contractors to Intervene in ESA Biological Opinion

On Wednesday, April 19, 2006, the Ninth Circuit issued a decision allowing the State Water Contractors (Contractors) to intervene in the NRDC v. Norton lawsuit. NRDC v. Norton challenges a biological opinion issued under the federal Endangered Species Act which relates to the operation of the federal and state water diversion projects.

The Contractors’ motion was based on Federal Rule of Civil Procedure 24(a). The Ninth Circuit previously established a four-part test to determine whether an applicant for intervention meets Rule 24(a) requirements. The dispute regarding the Contractors’ right to intervene rested on the fourth part of the test – whether the Contractors’ interests would be adequately represented by other water users if intervention were not allowed. The Ninth Circuit determined that: (1) there was no way to assure that the Contractors’ arguments would be addressed if they were not included, and (2) there were doubts that the existing parties would protect the Contractors’ interests, especially if settlement negotiations occurred.

Congratulations to Best Best & Krieger partners Greg Wilkinson and Steve Anderson, who successfully represented the Contractors in these proceedings.