We love any opinion that begins with "[t]his case's story started in 1942..." A typical long-fact-pattern takings case, perhaps? Well, not quite. This case, which we've been meaning to post for a while, deals with who is entitled to intervene in a takings case.
In Wolfsen Land & Cattle Co. v. United States, No 2011-5113 (Sep. 21, 2012), the U.S. Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims' denial of a motion to intervene by an environmental organization in a takings case. In an earlier separate case, the organization and others had sued the federal government over the operation of a dam. To settle that case, the government and the organizaitons entered into an agreement that "obliged the government to release water from the dam for the purpose of restoring and maintaining fish populations downstream[.]" Slip op. at 4.
As a result of the releases pursuant to the settlement agreement, downstream landowners sued the federal government for a taking in the CFC, alleging that the water releases impaired their water rights and that inundations damaged their land. The environmental organizations moved to interevene, since they claimed their interests were at stake. The CFC denied the motion.
The Court of Appeals affirmed, and if you want to understand why (including the court's avoidance of defining the appellate standard of review applicable to intervention), read the short opinion. The most interesting part of the opinion to us begins on page 8 analyzing whether the purported interests of the environmental organizations were adequately represented by the federal government. The court concluded they were, because both the federal government and the environmental organizations "have precisely the same motivation, which is to see [the property owner]'s claims fail." Slip op. at 11.
The environmental organizations responded to this argument by asserting that the government would not defend the releases as vigorously as they would, since, but for the original litigation, the government would never have released the water from the dam in the first place. The court also rejected that argument, concluding that '[n]either its past litigation history, its financial stake in this case, nor its obligations as sovereign make the government any less motivated to contest [the landowner]'s claim than [the environmental organization] is." Slip op. at 12.
Because it can show no divergence in either motivations or approaches between itself and the government as to this case, PCFFA has also failed to overcome the presumption that the government as sovereign can adequately represent its interests.Id. All you civil procedure wonks, check this one out.
Wolfsen Land & Cattle Co. v. United States, No. 2011-5113 (Sep. 21, 2012)