United States Court of Appeals

For the Eighth Circuit

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No. 14-1785

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NorthDakota, ex rel.,WayneStenehjem,AttorneyGeneralfortheState ofNorthDakota,

lllllllllllllllllllll Plaintiff - Appellee,

v.

United States of America,

lllllllllllllllllllll Defendant - Appellee,

BadlandsConservationAlliance;SierraClub;NationalParksConservationAssociation,

lllllllllllllllllllllMovants - Appellants.

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Billings County, North Dakota; Golden Valley County, North Dakota; McKenzie

County, North Dakota; Slope County, North Dakota,

lllllllllllllllllllll Plaintiffs - Appellees,

v.

United States of America,

lllllllllllllllllllll Defendant - Appellee,

BadlandsConservationAlliance;SierraClub;NationalParksConservationAssociation,

lllllllllllllllllllllMovants - Appellants.

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 Appeal from United States District Court 

for the District of North Dakota - Bismarck

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 Submitted: October 6, 2014

 Filed: June 1, 2015

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Before LOKEN, BEAM, and COLLOTON, Circuit Judges.

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COLLOTON, Circuit Judge.

Three nonprofit environmental groups moved to intervene in a quiet title action

concerning ownership of portions of the Dakota Prairie Grasslands. The district

court denied their motion, and the groups appeal. We conclude that the groups were 1

not entitled to intervene as of right, and the district court did not abuse its discretion

in denying permissive intervention.

I. 

Four North Dakota counties—Billings County, Golden Valley County,

McKenzie County, and Slope County—sued the United States in the district court

under the Quiet Title Act of 1972, 28 U.S.C. § 2409a. The counties sought to quiet

title to alleged rights-of-way along section lines that run throughout lands owned by

the United States in North Dakota. The lands are located within the Dakota Prairie

Grasslands and are administered and managed by the United States Forest Service. 

The Counties allege that section lines in North Dakota, with a few exceptions, are

The Honorable Daniel L. Hovland, United StatesDistrictJudge for the District 1

of North Dakota.

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subject to a public easement that provides a right-of-way for public travel within

thirty-three feet on either side of the section lines. The United States does not

recognize these rights-of-way. The State of North Dakota filed a separate lawsuit

seeking the same relief, and the district court consolidated the actions.

Eight months after the action commenced, three nonprofit environmental

organizations—Badlands Conservation Alliance, Sierra Club, and National Parks

Conservation Association (collectively, “the Conservation Groups”)—moved to

intervene as defendants as of right under Rule 24(a) of the Federal Rules of Civil

Procedure. Alternatively, they sought permissive intervention under Rule 24(b). The

Groups alleged that they possess important aesthetic, recreational, and environmental

interestsin preserving the Grasslands. The Groups filed declarations by three of their

members describing their interestsin the Grasslands, their plans to use the Grasslands

in the future, and their prior advocacy efforts for the protection of the Grasslands. 

All parties opposed the Conservation Groups’ motion to intervene as of right,

and the State and County plaintiffs opposed permissive intervention. The district

court denied the motion to intervene as of right on several grounds: (1) the Groups

failed to show injury in-fact and thuslacked Article III standing; (2) the Groups failed

to establish a recognized interest in the subject matter of the lawsuit; and (3) the

United States adequately represented any legally protectable interest of the Groups

in the lawsuit. The court also denied the alternative request for permissive

intervention.

The Conservation Groups appeal, arguing that they satisfy all of the

requirements for Article III standing and intervention as of right, and alternatively,

that the district court abused its discretion in denying their motion for permissive

intervention. We review the denial of a motion to intervene as of right de novo. 

United States v. Union Elec. Co., 64 F.3d 1152, 1158 (8th Cir. 1995). 

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II.

In this circuit, prospective intervenors must satisfy both the requirements of

Rule 24(a) and Article III standing to intervene as of right. Mausolf v. Babbitt, 85

F.3d 1295, 1300 (8th Cir. 1996). This court has concluded that an Article III case or

controversy joined by an intervenor who lacks standing ceases to be an Article III

case or controversy. Id. But because there is an existing case or controversy between

the parties to the underlying action, we may consider first whether a would-be

intervenorsatisfies Rule 24(a). If intervention was properly denied based on Rule 24,

then the case or controversy was not destroyed, and it is unnecessary to determine

whether the putative intervenor also satisfies Article III standing requirements. E.g.,

Standard Heating &Air Conditioning Co. v. City of Minneapolis, 137 F.3d 567, 571-

73 (8th Cir. 1998).

A party is entitled to intervention under Rule 24(a) when it has made a timely

application and “claims an interest relating to the property or transaction that is the

subject of the action, and is so situated that disposing of the action may as a practical

matter impair or impede the movant’s ability to protect its interest, unless existing

parties adequately represent that interest.” Fed. R. Civ. P. 24(a). We have

paraphrased the rule to say that a putative intervenor must establish that it: “(1) ha[s]

a recognized interest in the subject matter of the litigation that (2) might be impaired

by the disposition of the case and that (3) will not be adequately protected by the

existing parties.” Mausolf, 85 F.3d at 1299. Even assuming for the sake of argument

that the Groups could meet the first two criteria, we conclude that the Groups have

failed to show that the United States does not adequately represent their interests in

this quiet title litigation. 

A putative intervenor under Rule 24(a) must show that none of the parties

adequately represents its interests. Although the burden of showing inadequate

representation usually is minimal, “when one of the parties is an arm or agency of the

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government, and the case concerns a matter of sovereign interest, the bar is raised,

because in such cases the government is presumed to represent the interests of all its

citizens.” Mausolf, 85 F.3d at 1303 (emphasis and internal quotation marks omitted). 

The government represents the interests of a movant “to the extent his interests

coincide with the public interest.” Chiglo v. City of Preston, 104 F.3d 185, 187-88

(8th Cir. 1997). Where the government would be “shirking its duty” to advance the

“narrower interest” of a prospective intervenor “at the expense of its representation

of the general public interest,” then no presumption of adequate representation

applies. Mille Lacs Band of Chippewa Indians v. Minnesota, 989 F.2d 994, 1000 (8th

Cir. 1993) (quoting Dimond v. District of Columbia, 792 F.2d 179, 193 (D.C. Cir.

1986)). 

The United States is a defendant in this action, but the Groups argue that the

presumption of adequate representation should not attach because they face a

narrower and more personal harm than the United States. They allege that their

environmental and aesthetic interests in the land could be impaired by the outcome

of this litigation, whereas the United States stands to lose only its own ownership

interest in the Grasslands.

In determining whether to presume adequacy of representation by the

sovereign, it is important to focus on what the case is about. The disputes in this

lawsuit concern title to certain section lines, roads, rights-of-way, easements, and

rights-of-entry in North Dakota. The Counties claim certain rights, and the United

States denies them. As the district court correctly explained:

[T]hisis a quiet title action presenting basic questions of competing title

interests. The best use of public lands is not at issue. This lawsuit is not

about past or future land management decisions where the United States

will have to balance varied interests, including conservation, in making

land management decisions.

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In defending title interests in public lands, the United States as sovereign is

presumed to represent adequately the interests of its citizens. Although the Groups

may have different reasons than the government for seeking to defeat the claims of

the Counties (environmental interests rather than ownership interests), the interests

of the Groups and the United States are aligned. The government’s pursuit of the

public interest in defending its title rights encompasses the parallel interests of the

Groups in opposing the quiet title action brought by the Counties. Even as to the

supposedly narrower interests urged by the Groups, moreover, this court in Mausolf

ruled that an association’s “conservation interests are concerns that the Government,

as parens patriae, is charged with protecting, and that the presumption of adequate

representation therefore applies” when a would-be intervenor seeks to advance

environmental and aesthetic interests. 85 F.3d at 1303. 

The Groups contend that even if the presumption of adequate representation

applies, they have successfully rebutted it. They cite a history of conflict with the

United States over management of the Grasslands. The government, they say,

supports multiple uses for the land, while the Groups advocate exclusively for uses

that are related to conservation and protection of the land. The Groups also point to

the government’s decision to settle a previous lawsuit concerning its past land

management decisions. The settlement, they assert, showsthat the United States may

be satisfied with outcomesin this case that would damage the Groups’ environmental

interests in the Grasslands.

The presumption of adequate representation by the United States can be

overcome only by “a strong showing of inadequate representation.” Little Rock Sch.

Dist. v. N. Little Rock Sch. Dist., 378 F.3d 774, 780 (8th Cir. 2004). The Groups may

rebut the presumption by “showing that the parens patriae has committed

misfeasance or nonfeasance in protecting the public.” Chiglo, 104 F.3d at 188. 

Mausolf, for example, involved a lawsuit over the validity of snowmobiling

restrictions in a national park. This court held that the presumption was rebutted by

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evidence that the United States previously had “waived and failed to enforce”

regulations against snowmobile use, and had breached a statutory obligation to make

a wilderness recommendation for the park. 85 F.3d at 1303. “Absent this sort of

clear dereliction of duty, however, the proposed intervenor cannot rebut the

presumption of representation by merely disagreeing with the litigation strategy or

objectives of the party representing him.” Chiglo, 104 F.3d at 188.

The Groups have not overcome the presumption of adequate representation. 

This lawsuit concerns a claimto quiet title to alleged rights-of-way on the Grasslands;

it does not concern administrative decisions about how the Grasslands should be

managed or used. The Groups’ argument about its history of land use disputes with

the United States is therefore beside the point. That the United States settled a

lawsuit related to use of the Grasslands in a way that displeases the Groups does not

suggest that the government will fail to defend its ownership interest in the land in

the future. There is no evidence to show that the United States has failed to defend

its title vigorously, and nothing in the record suggests that the government has been

less than vigilant in its defense of the quiet title action thus far.

We therefore conclude that the interest of the United Statesin maintaining title

to the Grasslandssubsumesthe interest of the Groups in preserving federal protection

of those lands. The presumption of adequate representation applies, and the Groups

have not rebutted the parens patriae presumption. The district court thus did not err

in denying the Groups’ motion to intervene as of right under Rule 24(a).

The district court also denied permissive intervention under Rule 24(b), citing

the Groups’ lack of Article III standing, their lack of a legally-protected interest in the

litigation, and the potential for delay caused by the introduction of ancillary issues. 

A decision on this question is “wholly discretionary,” and the “principal

consideration” is “whether the proposed intervention would undulydelay or prejudice

the adjudication of the parties’ rights.” S.D. ex rel Barnett v. U.S. Dep’t of Interior,

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317 F.3d 783, 787 (8th Cir. 2003). Having concluded that the district court properly

denied intervention as of right, and seeing no reason to second-guess the district

court’s concern about undue delay that could arise from the Groups “injecting issues

unrelated to title into this quiet title action,” we discern no abuse of discretion.

The order of the district court denying intervention is affirmed.

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