Steve Corson, Brent Larson, and Jeff Fleming. 1

 The Honorable Paul A. Magnuson, Chief Judge, United States

2

District Court for the District of Minnesota.

___________

No. 96-1066

___________

Mrs. Binh Chiglo; J & B, Inc. *

a Minnesota corporation; Mary *

Moore, *

*

Plaintiffs - Appellees, *

*

v. * Appeal from the United States

* District Court for the

City of Preston, a municipal * District of Minnesota.

corporation; *

*

Defendant, *

*

Mike Sveen; Steve Corson; Brent *

Larson; Jeff Fleming, *

*

Movants - Appellants. *

___________

 Submitted: July 12, 1996

 Filed: January 6, 1997

___________

Before WOLLMAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.

___________

JOHN R. GIBSON, Circuit Judge.

Mike Sveen and three other citizens of Preston, Minnesota appeal

1

from the district court's order denying their motion to intervene as

2

defendants, so that they could appeal the judgment entered against Preston,

declaring Preston's tobacco advertising ordinance to be preempted by the

Federal Cigarette Labeling and Advertising Act. The district court ruled

that Sveen and the
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others had not shown that they had a legally protectable interest at stake

in the litigation and therefore were not entitled to intervene under

Federal Rule of Civil Procedure 24(a). Because we conclude that they have

not rebutted the presumption that the city government adequately represents

their interests as citizens, we affirm the district court's ruling.

In 1994 the City of Preston adopted Ordinance No. 213, which

regulates tobacco advertising in shops that offer tobacco products for

sale. The announced purpose of the ordinance was to protect children under

the age of eighteen from being influenced to use tobacco. The ordinance

limited shops to the use of "tombstone signs" to advertise tobacco and

imposed restrictions on the size, content, and appearance of such signs,

as well as the number of signs a merchant could display. 

Binh Chiglo is a merchant who is affected by the restrictions in

Ordinance No. 213. She, her company, and her employee brought suit

challenging the ordinance on the grounds that it was preempted by federal

law and that it violated their First Amendment rights. The district court

entered summary judgment for Chiglo, holding that Ordinance No. 213 was

preempted by the Federal Cigarette Labeling and Advertising Act. The City

did not appeal the judgment.

Sveen and the others filed a motion to intervene as defendants,

stating that they had an interest in the enforcement of Ordinance No. 213,

and that the City of Preston had failed to protect their interest because

it neglected to file a timely appeal. (Sveen and the others filed a timely

protective appeal). They filed affidavits in support of their motions

stating that they were parents, and that they believed the ordinance was

desirable to protect children from the inducements of tobacco advertising.

They simply stated without elaboration that in the City Council meeting to

consider appealing the ruling, one of the proposed intervenors
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had moved to appeal the ruling, but that his motion had received no second.

The proposed intervenors did not explain why the City had failed to appeal

the ruling, though perhaps there was an implicit explanation in the

statement that there had been a City Council election between the time the

ordinance was adopted and the time of the Council meeting, in which the

Council had received two new members. 

The district court denied the motion to intervene, saying that the

proposed intervenors had not proven that they had a legally protectable

interest at stake in the litigation, since the only interest they claimed

was the interest in protecting minors from tobacco advertising, which was

an interest that they shared with the rest of the public.

The proposed intervenors appeal, arguing that they have established

all the prerequisites for intervention as of right under Federal Rule of

Civil Procedure 24(a)(2).

Under Rule 24(a)(2), a person is entitled to intervene as of right

if: (1) he has a cognizable interest in the subject matter of the

litigation; (2) the interest may be impaired as a result of the litigation;

and (3) the interest is not adequately protected by the existing parties

to the litigation. See United States v. Union Elec. Co., 64 F.3d 1152,

1160 (8th Cir. 1995). The intervenor must satisfy all three parts of the

test. The motion to intervene must also be timely. See id. at 1158-59.

We review de novo the district court's determination of the three-factor

test, but the timeliness determination we review for abuse of discretion.

See id. at 1158. 

The district court held that the proposed intervenors demonstrated

no cognizable interest, because their only announced aim was to serve the

public interest in avoiding tobacco use by children. The court stated,

"Merely expressing a generalized
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interest in the public benefits of the ordinance does not constitute a

legally protected interest." We consider this analysis to fit more neatly

under the rubric of adequacy of representation, but we, like the district

court, conclude that the proposed intervenors' motion must fail because

they did not show any way in which their interests diverged from the public

interest.

The intervenor bears the burden of showing that his interests are not

adequately represented by existing parties. See Union Elec., 64 F.3d at

1168. This burden is ordinarily minimal, see id., but if an existing party

to the suit is charged with the responsibility of representing the

intervenor's interests, a presumption of adequate representation arises.

See id. at 1168-69. When one of the parties is an arm or agency of the

government, acting in a matter of sovereign interest, the governmental

entity is presumed to represent the interests of its citizens as parens

patriae, or "parent of the country." See Mausolf v. Babbitt, 85 F.3d 1295,

1303 (8th Cir. 1996). 

However, the government only represents the citizen to the extent his

interests coincide with the public interest. If the citizen stands to gain

or lose from the litigation in a way different from the public at large,

the parens patriae would not be expected to represent him. See Mausolf,

85 F.3d at 1303-04. For instance, in Mille Lacs Band of Indians v.

Minnesota, 989 F.2d 994, 1001 (8th Cir. 1993), certain landowners were

allowed to intervene in a case to protect fish and game in the state of

Minnesota, despite the fact that the state was already a party to the suit

and was representing the public in protecting the state's fish and game.

This court held that the landowners' interests were not represented by the

parens patriae because, in addition to the interest the public shares in

game preservation, the landowners had property whose value might be

affected by fish and game depletion. Since the landowners would be

affected by the litigation more severely than the public at large, the

state's representation of
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the public interest was not sufficient to protect the landowners'

interests. Id.

If the intervenor's only interest in the suit is shared in common

with the public, the citizen must rebut the presumption of adequate

representation by the parens patriae. The proposed intervenor may rebut

this presumption, among other ways, by showing that the parens patriae has

committed misfeasance or nonfeasance in protecting the public. In Mausolf,

an environmental group sought to intervene in litigation between the

federal government and a snowmobilers' association concerning recreational

use of snowmobiles in a national park. 85 F.3d at 1296. The environmental

group contended that the government was less than vigilant about protecting

the public's interest in conservation of the park lands. The environmental

group was able to back up its claim with evidence that the government had

waived and failed to enforce regulations against snowmobile use in the

park, and that it had disregarded a statutory mandate to make a wilderness

recommendation for the park. See id. at 1303. We held the environmental

group was not adequately represented by the government and therefore was

entitled to intervene. See id. at 1304.

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. For instance, in Jenkins v. Missouri, 78 F.3d 1270,

1275-76 (8th Cir. 1996), class members' disagreement with the class

representatives over the desirability of certain remedial programs was not

sufficient to show inadequate representation. Accord Trahan v. Lafayette

Parish Sch. Bd., 616 F. Supp. 220, 223 (W.D. La. 1985).

In this case, the proposed intervenors claim that they want to

intervene to protect children from smoking. This concern falls
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squarely within the City's interest in protecting public health,

particularly since it is illegal for minors to use tobacco in Minnesota.

Therefore, the proposed intervenors have articulated an interest that

coincides with the City's role as protector of its citizens. The

intervenors have made no effort to rebut the presumption of adequate

representation except to say that the City failed to appeal the ruling

invalidating Ordinance No. 213.

The question before us then, is whether the City's failure to appeal

the ruling is the sort of nonfeasance that would render the City's

representation of the public inadequate.

We conclude that the proposed intervenors must show something more

than mere failure to appeal. "`Even a decision not to take an appeal is

ordinarily within the discretion of the representative, though in unusual

cases this may show inadequate representation.'" Triax Co. v. TRW, Inc.,

724 F.2d 1224, 1228 (6th Cir. 1984) (quoting 7A C. Wright & A. Miller,

Federal Practice and Procedure § 1909 at 532 (1972), now found at 7C C.

Wright, A. Miller & M. K. Kane, Federal Practice and Procedure § 1909 at

344-345 (1986)). Accord Orange Environment, Inc. v. County of Orange, 817

F. Supp. 1051, 1060-62 (S.D.N.Y.), aff'd, 2 F.3d 1235 (2d Cir. 1993);

Cuyahoga Valley Ry. Co. v. Tracy, 6 F.3d 389, 396 (6th Cir. 1993); United

States v. City of Chicago, 897 F.2d 243, 244 (7th Cir. 1990). Admittedly,

failure to appeal, combined with diverging interests between the

representative and the proposed intervenor, is surely enough to warrant

intervention. See Triax, 724 F.2d at 1228. There are certainly other

situations in which failure to appeal will be a key factor in showing a

need for intervention. See, e.g., Meek v. Metropolitan Dade Cty., 985 F.2d

1471, 1478 n.2 (11th Cir. 1993); Yniguez v. Arizona, 939 F.2d 727, 730, 737

(9th Cir. 1991) (governor failed to appeal from judgment invalidating

initiative measure; governor had previously expressed political opposition

to the measure). See generally Smuck v. Hobson, 408 F.2d 175, 181 (D.C.

Cir. 1969) (en banc) ("[A] failure to appeal
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may be one factor in deciding whether representation by existing parties

is adequate."); Nuesse v. Camp, 385 F.2d 694, 704 n.10 (D.C. Cir. 1967).

We will not attempt to catalog the possible factors which could

combine with failure to appeal to effectively rebut the presumption of

adequate representation. It is sufficient to say that in this case the

proposed intervenors make absolutely no showing of any factor other than

the failure to appeal. Moreover, the City would face significant legal

obstacles in seeking a reversal of the district court's preemption ruling.

See generally 15 U.S.C. § 1334(b) (1994); Cippollone v. Liggett Group,

Inc., 505 U.S. 504 (1992); Vango Media, Inc. v. City of New York, 34 F.3d

68 (2d Cir. 1994). We conclude that the proposed intervenors have fallen

short of carrying their burden of proof.

Accordingly, we affirm the district court's denial of the motion to

intervene as of right.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.