### Steve Corson, Brent Larson, and Jeff Fleming. 1 

### The Honorable Paul A. Magnuson, Chief Judge, United State s 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.

Mi ke Sveen and three other citizens of Preston, Minnesota appea l 1 from the district court's order denying their motion to intervene a s 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 Lab eling and Advertising Act. The district court ruled that Sveen and the

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others had not shown that they had a legally pro tectable interest at stake in t he litigation and therefore were not entitled to intervene unde r Federal Rule of Civil Procedure 24(a). Because we conclude that they have not rebutted the presumption that the city government adequately represent s their interests as citizens, we affirm the district court's ruling.

In 1994 the City of Preston adopted Ordinance No. 213, whic h regula tes tobacco advertising in shops that offer tobacco products fo r sale. The announced purpose of the ordinance was to protect children unde r the age of eighteen from being influenced to use tobacco. The ordinance limit ed shops to the use of "tombstone signs" to advertise tobacco an d imposed restrictions on the size, content, and appearance of such signs, as well as the number of signs a merchant could display.

Binh C higlo is a merchant who is affected by the restrictions i n Ordinance No. 213. She, her company, and her employee brought sui t challenging the ordin ance on the grounds that it was preempted by federal law and that it viola ted their First Amendment rights. The district court ent ered summary judgment for Chiglo, holding that Ordinance No. 213 wa s 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 enforce ment 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 timel y protec tive appeal). They filed affidavits in support of their motion s stating that they were parents, and that they believed the ordinance was desirable to protect children from the inducemen ts of tobacco advertising. They simply stated without elaboration that in t he 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 th e statement that there had been a City Council ele ction between the time the ordinance was adopted and the time of the Council meeting, in which th e Council had received two new members.

The dist rict court denied the motion to intervene, saying that th e pro posed intervenors had not proven that they had a legally protectabl e interest at stake in the litigation, since the only interest they claimed was the interest in p rotecting minors from tobacco advertising, which was an interest that they shared with the rest of the public.
The propo sed 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 R ule 24(a)(2), a person is entitled to intervene as of righ t if: (1) he has a cognizable interest in the subject matter of th e 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 timelin ess determination we review for abuse of discretion. See id . at 1158.

Th e district court held that the proposed intervenors demonstrate d no cognizable interes t, 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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inter est in the public benefits of the ordinance does not constitute a legally protected interest." We consider this a nalysis to fit more neatly under the rubric of a dequacy of representation, but we, like the district court, conclude that the proposed intervenors' motion must fail becaus e they did not show any way in which their interests diverged from the publi c interest.
The intervenor bears the burden of showing that his interests a re 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 part y to the s uit is charged with the responsibility of representing th e 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 th e govern ment, acting in a matter of sovereign interest, the governmenta l entity is presumed to represent the interests of its citizens as paren s 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 exte nt his interests coincide with the public interest. If the citizen stands to gai n
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 wer e allow ed to intervene in a case to protect fish and game in the state o f Minnesota, despite the fact that the state was a lready 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 w ere not represented by the parens patriae because, in addition to the interest the public shares in game p reservation, the landowners had property whose value might b e affected by fish and game depletion. Since the landowners would b e affec ted by the litigation more severely than the public at large, th e state's representation of

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the pu blic interest was not sufficient to protect the landowners ' interests. Id.

If the intervenor's only interest in the suit is shared in commo n with the public, the citizen must rebut the presumption of adequat e representation by the parens patriae

. The proposed intervenor may rebut this presumption, among other ways, by showing t hat the parens patriae has committed misfeasance or nonfeasance in protecting the public. In Mausolf , an env ironmental group sought to intervene in litigation between th e federal government and a snowmobilers' associati on concerning recreational
use of snowmobiles in a national park. 85 F.3d at 1296. The environmenta l group contended that the government was less than vigilant about protectin g the public's interest in conservation of the park lands. The environmenta l group was able to bac k up its claim with evidence that the government had waived and failed to enforce regulations against snowmobile use in th e park, and that it had disregarded a statutory ma ndate to make a wilderness recommendation for th e 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 derelictio n of duty, however, the proposed inter venor cannot rebut the presumption of representation by merel y disagr eeing with the litigation strategy or objectives of the part y repre senting him. For instance, in Jenkins v. Missouri , 78 F.3d 1270 , 1275-7 6 (8th Cir. 1996), class members' disagreement with the clas s representatives over the desirability of certainremedial programs was not sufficient to show in adequate representation. Accord Trahan v. Lafayette Parish Sch. Bd. , 616 F. Supp. 220, 223 (W.D. La. 1985).

In thi s case, the proposed intervenors claim that they want t o intervene to protect children from smoking. This concern falls

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square ly within the City's interest in protecting public health , particularly since it is illegal for minors to use tobacco in Minnesota. Therefo re, the proposed intervenors have articulated an interest tha t coincide s with the City's role as protector of its citizens. Th e inte rvenors have made no effort to rebut the presumption of adequat e repre sentation except to say that the City failed to appeal the rulin g invalidating Ordinance No. 213.
The question before us then, is whet her 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 mor e 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. 1 051, 1060-62 (S.D.N.Y.), aff'd , 2 F.3d 1235 (2d Cir. 1993) ; Cuyahoga Valley Ry. C o. v. Tracy , 6 F.3d 389, 396 (6th Cir. 1993); United States v. City of Chicago , 897 F.2d 243, 244 (7t h Cir. 1990). Admittedly, failur e to appeal, combined with diverging interests between th e repres entative and the proposed intervenor, is surely enough to warran t intervention. See Triax , 724 F.2d at 1228. There are certainly othe r situati ons 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.2 d 1471, 1478 n.2 (11th Cir. 1993); Yniguez v. Arizona , 939 F.2d 727, 730, 73 7 (9th C ir. 1991) (governor failed to appeal from judgment invalidatin g initiative measure; governor had previously expr essed 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 n ot attempt to catalog the possible factors which coul d combine with failure to appeal to effectively rebut the presumption o f adequate representation. It is sufficient to say that in this case th e proposed intervenors make absolutely no showing of any factor other than the failure to appeal. Moreover, the City would face significant lega l 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 (1 992); Vango Media, Inc. v. City of New York , 34 F.3d 68 (2d Cir. 1994). W e conclude that the proposed intervenors have fallen short of carrying their burden of proof.
According ly, 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.