Removing the Roadblock to Intervention of Right: Wilderness Society v. U.S. Forest Service and the Ninth Circuit’s Decision to Abandon Its Federal Defendant Rule

Abstract

In 2011, in Wilderness Society v. U.S. Forest Service, the U.S. Court of Appeals for the Ninth Circuit abandoned its unique federal defendant rule, which prohibited any non-federal entity from intervening of right to defend the federal government’s decisions under the National Environmental Policy Act of 1969. In doing so, the Ninth Circuit ensured that its typical, liberal intervention of right standard applied equally to all proposed intervenors. This Comment argues that the Ninth Circuit rightfully recognized that the practical realities of NEPA litigation and its own intervention policies require a broad and flexible approach to intervention of right, rather than the federal defendant rule’s categorical prohibition.