_____________ No. 95-1201MN

_____________ Jeffrey Mausolf; William * Kullberg; Arlys Strehlo; and * Minnesota United Snowmobilers * Association, * * Appellees, * * v. * * * Bruce Babbitt, Secretary, * Department of the Interior; * Roger Kennedy, Director, * National Park Service; Mollie * Beattie, Director, U.S. Fish * On Appeal from the United and Wildlife Service; and Ben * States District Court Clary, Superintendent, * for the District of Voyageurs National Park, * Minnesota. * Appellees. * * ---------------------- * * Voyageurs Region National Park * Association; Sierra Club, North * Star Chapter; Humane Society of * the United States; Friends of * the Boundary Waters Wilderness; * National Park and Conservation * Association; and Izaak Walton * League of America, * * Appellants. *

___________ Submitted: October 20, 1995 Filed: June 3, 1996

___________

### -2-

Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN a nd MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ RICHARD S. ARNOLD, Chief Judge.

The plaintiffs -- three snowmobile enthusiasts and the Minnesot a United Snowmobilers Association (collectively, " the Snowmobilers") -- sued the Se cretary of the Interior and other defendants ("the Government") , seekin g to enjoin the enforcement of restrictions on snowmobiling i n Voyageurs National Park. The Voyageurs Region National Park Association and other conservation groups (collectively, "the Association") moved to intervene under Fed. R. Civ. P. 24. The Association claimed an interest in the vigorous enforcement of the restrictions and expressed concern that the Government might settle with the Snowmobilers or back away from th e rules

. The District Court denied the motion, concluding that th e Government adequately represented the Associatio n's interests. Mausolf v. Babbi tt ("Mausolf I") , 158 F.R.D. 143 (D. Minn. 1994) (opinion o f Magistrate Judge), approved , Order of November 1 5, 1994 (order of District Judge). We reverse.
During t he pendency of this appeal, the District Court granted th e Snowmobilers' motion for summary judgment, and held that the Government's
ex planation for the restrictions was inadequate under the Endangere d Species Act. The Court remanded the case to the Fish and Wildlife Service and the Park Service to supplement the administr ative record, and enjoined enforcement of the restrictions on snowmobiling, "[p]ending a sufficient explanation . . .." Mausolf v. Babbitt ("Mausol f II") , 913 F. Supp. 1334, 1344 (D. Minn. 1996). We think, however, that the question of interventio n is not moot, because the Association has appealed this judgment. Jeffrey Mau solf v. Voyageurs Region National Park Ass'n , No. 96-1856 (8th Cir. , notice of appeal filed March 25, 1996).

### In 1971, Congress authorized the establishment of the Park 1 

### . . . to preserve, for the inspiration and enjoyment of present and future generations , the outstanding scenery, geological conditions, and waterway system whic h constituteda part of the historic route of the Voyageur s who contributed significantly to the opening of th e Northwestern United States. Voyageurs National Park Act, 16 U.S.C. § 160 et seq. For more on the litigation surrounding the Park, see, e.g. , 2 

### Voyageurs Region National Park Association v. Lujan( " VRNPA " ), 1991 WL 343370 (D. Minn., April 15, 1991), aff'd , 966 F.2d 424 (8 th Cir. 1992).
-3- I.

Voyageurs National Park is a watery maze of over 30 lakes and 90 0 islands along the border between northern Minnesota and Canada. The Park' s name pays tribute to the fur traders and explorers who travelled by canoe from Montreal deep into northwestern Canada. The Park's four larges t 1 lakes -- Rainy, Kabetogama, Namakan, and Sand Point -- surround th e Kabeto gama Peninsula (about one-half the Park's land area) and ar e themselves linked by smaller lakes, rivers, and bogs. Most of the Park is quite remote, and accessible only by water. Voy ageurs is renowned for its fishing and boating, and visitors often see baldeagles and grey wolves in the wild . Voyageurs has also long been a popular destination fo r snowmobilers, who have, over the years, used both the Park's frozen lake surfaces and -- more controversially -- certain overland trails. This cas e is the latest in a series of disputes over the use and management of the Park. 2

Some background information will make this case easier to under stand. In 1991, after several years of study, the National Park Service issue d final regulations, based on a series of environm ental- and wildlife-impact reports, allowing snowmobiling on practically al l the Park's lake surfaces and also on certain

### The Voyageurs National Park Act, recognizing the Park' s 3 

### longstanding appeal to snowmobilers, provided that "[t]he Se cretary may, when planning development of the park, include appropriat e provisions for (1) winter sports, including the use of snowm obiles,

. . .." 16 U.S.C. § 160h. After the Park was established , snowmobiling continued relativ ely unregulated, pending the results of wildlife-impact studies. S ee Mausolf II , 913 F. Supp. at 1338. The Associa tion argued that the Voyageurs National Park Act, 4 

### 16 U.S.C. § 160 et seq
. , and t he Wilderness Act of 1964, 16 U.S.C. § 1131 et seq. , required the S ecretary of the Interior to submit a "wilde rness recommendation" for the Park to the President withi n four years of the Park's estab lishment, and that the Secretary had not complied with this requirement. VRNPA , 1991 WL 343370 a t *1-2. The Association also contended that the Wilderness Act, th e Voya geurs National Park Act, and Department of the Interio r regulations, see 36 C.F.R. § 2.18(c), prohibited the Park fro m allowing widespread snowmobiling in potential wilderness areas

. VRNPA , 1991 WL 343370 at *1-3.
-4- tr ails and portage routes. See 36 C.F.R. § 7.33(b) (1991). Th e 3 Associationthen sued, claiming that the regulations, and the Department of the Interior's fai lure to submit a "wilderness recommendation" for the Park to th e President, were illegal. The District Court ordered th e 4 Secretaryof the Interior to make a "wilderness recommendation" within a year, but refused to enjoin snowmobiling in the Park's Kabetogam a Peninsula. See VRNPA , 1991 WL 343370 at *11-14.
Accordingly, in August 1991, the National Park Service proposed a wild erness plan which would have significantly reduced overlan d snowmob iling, but allowed it on major lakes, a few designated portag e trails, and the Chain of Lakes Trail. The Park Service then asked the Fis h and Wildlife Service for its "biological opinion" about the effect, if any , snowmobiling could ha ve on grey wolves, bald eagles, and other animals in the Park. In March 1992, Fish and Wildlife concluded that the Par k Servic e's plan would not threaten animals' survival or habitats

. Nonetheless, Fish and Wildlife directed the Park Service to close specifie d trails, lakeshores, and lakes to snowmobiles and other motor vehicles. So , in December 1992, Park officials issued an

### -5-

order, without giving notice or inviting interested parties to comment , closing 16 of the Park's lake bays and certain shoreline areas to winter motorized access. See 36 C.F.R. § 7.33(b)(3) (1993) (authorizing temporar y closure of lake surfaces for wildlife-management purposes). This order, which was renewed in 1993 and 1994, dramatically reduced the area availabl e for snowmobiling.
These new regulations angered many p ast and potential Park visitors, including the Snowmobilers, who could no longer enjoy some of the Park's more beautiful and re mote areas. The Snowmobilers sued the Government in January 1994, claiming that Fish and Wildlife's biological opinion did not sup port closing so much of the Park, and that the regulations wer e theref ore arbitrary and capricious. According to the Snowmobilers, no t only had the Governme nt turned an abrupt and unexplained "about face," it had also failed to consider the best available scientific and commercial information before im posing the new restrictions. See Mausolf II , 913 F. Supp. at 1335-36; Mausolf I , 158 F.R.D. at 144-45. The Association then
move d to intervene so it could vindicate its interest in restrictin g
snow mobiling in the Park and in making sure the new regulations wer e strictly enforced. The Association contended that for years the Governmen t illegally -- and over the Association's objections -- permitte d unrest ricted snowmobiling in the Park and refused to implement prope r wilder ness-protectionmeasures. The Association asserts that th e Government cannot be trusted to protect the Association's interests becaus e of its alleged history of siding with the Snowmobilers. See Mausolf I , 15 8 F.R.D. at 147.

The District Court conceded that the Association had a recognize d interest which might be impaired by the disposition of the case. The Cour t noted , however, that, under the parens patriae doctrine, governmen t ent ities are presumed to represent the interests of all their citizens

. Would-be intervenors can rebut

### -6-

this "presumption of adequate representation" only by identifying thei r "local and individual interests not shared by the general citizenry. " Mausolf I , 158 F.R.D. at 147-48 (citing Mille Lacs Band of Chippewa Indian s v. Minnesota , 989 F.2d 994, 1001 (8th Cir. 1993) ). The District Court was not persuaded that the Government would unduly subordinate th e Associ ation's interests to more general, national interests, and , therefore, denied intervention as of right under Rule 24(a). The District Court also refused to exercise its discretion to allow permissiv e intervention under Rule 24(b), fearing that the Association might delay th e case with additional discovery and further joinder of issues and parties. Mausolf I , 158 F.R.D. at 148. However, recogniz ing the potential benefits of the Association's collective knowledge and perspective, the Cour t allowed th e Association to participate as amicus curiae and to file a
memo randumaddressing the parties' cross-motions for summary judgment

. Ibid. The District C ourt confirmed the Magistrate Judge's order, and the Association appealed. We reverse.

II.

The Snowmobilers contend that the Association may not intervene a s of right b ecause it lacks Article III standing. The Magistrate Judg e concluded, and the District Judge agreed, that " [t]he question of standing

. . . is irrelevant to our determination of whether the Association ma y intervene as of right." Mausolf I , 158 F.R.D. a t 146. The District Court said that even if the Association did not have standing to sue, it could still intervene under Rule 24(a) if it had a "recognized interest in the subject of the litigation." Id. at 146 n.4 (citing Mille Lacs , 989 F.2d at 997).

A.
Rule 24(a) says nothing about standing. To intervene as of

### T he Court observed that 5


### the precise relationship between the interest required t o sati sfy[Rule 24] and the interest required to confe r standing . . . has led to anomalous decisions in th e Courts of Appeals. We need not decide today whether a party seeking to intervene before a district court must satisfy not only the requirements of Rule 24(a)(2), but also the requirements of Art. III. 476 U.S. at 68-69 (footnote omitted).
-7- right , an applicant must (1) have a recognized interest in the subjec t matter of the litigat ion that (2) might be impaired by the disposition of the case and that (3) will not be adequately protected by the existin g parties. Mille Lacs , 989 F.2d at 997. As the District Court observed, th e Supreme Court has not yet decided whether a would-be intervenor must have Article III standing. See Diamond v. Charles , 476 U.S. 54, 68-69 & n.21 (1986) (an intervenor may not appeal, or continue a suit, without the part y
on whose side intervention was permitted, unless intervenor has Article II I standing). 5

The courts of appeals have taken div erse, sometimes "anomalous," id. at 68, approaches. B y way of illustration, at least one circuit has held that Article III standing is required to intervene, see, e.g. , Building an d Const. Trades Dept., AFL-CIO v. Reich , 40 F.3d 1275, 1282 (D.C. Cir. 1994) ; another has stated that, while Article III stand ing is not required, it is "relevant" to identifying the "interest" required for intervention under Rule 24, see, e.g. , Chiles v. Thornburgh , 865 F.2d 1197, 1213 (11th Cir. 1989); others have concluded that standing is not required fo r intervention, see, e.g. , United States Postal Se rvice v. Brennan , 579 F.2d 188, 190 (2d Cir. 1978); Associated Builders & Contractors v. Perry , 1 6 F.3d 688, 690 (6th Ci r. 1994); Yniguez v. State of Arizona , 939 F.2d 727, 731 (9th Cir. 1991); and still another has sugge sted that Rule 24 requires
an inte rest even "greater than the interest sufficient to satisfy th e standing requirement." See,

### See, e.g. , United States v. Union Elec. Co. , 64 F.3d 1152 , 6 

### 1158-70 (8th Cir. 1995); Mille Lacs , 989 F.2d at 997; Sierra Club v. Robertson , 960 F.2d 83, 85 (8th Cir. 1992); County of St. Louis v. Thomas , 162 F.R.D. 583, 586 n.9 (D. Minn. 1995) ("[T]he Eighth Circuit resolves questions of intervention without reference to the stan ding doctrine."); but see United States v. Metropolitan St

. Louis Sewer Dist. , 883 F.2d 54, 56 (8th Cir. 1989) (noting tha t proposed intervenors' allegations were "sufficient to give [them] constitutional standing").
-8- e.g. , U nited States v. 39.96 Acres of Land , 754 F.2d 855, 859 (7th Cir

. 1985), cert. denied , 476 U.S. 1108 (1986). Our Court has not yet taken a firm position in this debate, although we have, in some cases, decide d intervention issues without discussing Article III standing. 6

The Ass ociation urges us to adopt the "majority view," and to hol d that standing is not required for intervention. It contends tha t "[i]nterventionis not a means for beginning a lawsuit, but a mechanis m that allows all parties with an interest to participate in an existin g lawsuit." Because th e lawsuit's original parties have created the "case" or "controversy" required by Article III, the As sociation argues, there is
no reason to require a would-be intervenor, who satisfies Rule 24(a)' s requirements, to have standing. In support, the Association points to the following language from Chiles , supra :

The standing doctrine ensures that a ju sticiable case and con troversyexists between the parties. Interventio n under Rule 24 presumes that there is a justiciable cas e into which a n individual wants to intervene. . . . [A] party s eeking to intervene need not demonstrate that h e has sta nding in addition to meeting the requirements o f Ru le 24 as long as there exists a justiciable case an d controversy between the parties already in the lawsuit.

Chiles , 865 F.2d at 1212-13.

### -9- We are not so sure as the Association that there is a "majority view"
on thi s question--indeed, our survey of the cases reveals considerabl e diversity of views, not consensus. But even if the Association's position did represent the majority view, we would still disagree with it. W e conclude that the Con stitution requires that prospective intervenors have Article III standing to litigate their claims in federal court.

B.

Our Cons titution is a charter for limited government. Article II I limits the "judicial power" to "cases" and "controversies." U.S. Const., art
. III., § 2, cl. 1. From this "bedrock requirement," Valley Forg e Christian College v. Americans United for Separation of Church and State, Inc. , 454 U.S. 464, 4 71 (1982), flow several doctrines -- e.g. , standing, moot ness, ripeness, and political question -- which "state fundamenta l limits on federal judicial power in our system of government." Allen v. Wright , 468 U.S. 737, 750 (1984). Article III's standing requirement is

a restrai nt on the "judicial power" as unyielding as that placed o n Congress by, for example, the First Amendment.
Rule 24(a) speaks to practical concerns by requiring that inter venors have a recognized interest in the subject matter of the litigation which might be impaired by the disposition of the case and which will not b e adequat elyprotected by the existing parties. See New Orleans Publi c Service , Inc. v. United Gas Pipe Line Co. , 732 F.2d 452, 464 (5th Cir. ) (analogizing intervention requirements to prudential standing rules), cert
. denied , 469 U.S. 1019 (1984). The Rule promotes the efficient and orderly use of judicial resources by allowing persons, who might otherwise have to bring a lawsuit on their own to protect their in terests or vindicate their rights, to join an ongoing lawsuit instead. But , judicial economy and the Ru les of Civil Procedure notwithstanding, Congress cannot circumven t Article III's limits on the judicial power. See

### -10-

Seminole Tribe of Flo rida v. Florida , 116 S. Ct. 1114, 1128 (1996) (it is "fundamental that Congress could not expand the jurisdiction of the federa l courts beyond the bounds of Article III"); Valley Forge , 454 U.S. at 471-7 5 (". . . [N]either the counsels of prudence nor the policies implicit in th e `case or controversy' requirement should be mist aken for the rigorous Art. III requirements themselves."); Gladstone, Realtors v. Village of Bellwood , 441 U.S. 91, 100 (1979) (" In no event . . . may Congress abrogate the Art. III minima . . ..") ( emphasis added). Congress could no more use Rule 24 to abrogate the Article III standing requirement s than it could expand the Supreme Court's original jurisdiction by statute . See Marbury v. Madison , 1 Cranch 137 (1803).

The As sociation's position is that once an Article III case o r controversy is underw ay, anybody who satisfies Rule 24's requirements may then j oin in. As long as the original parties are involved, th e Associationinsists, the lawsuit remains within the scope of the federal "judicial power." We disagree. In our view, an Article III case o r cont roversy, once joined by intervenors who lack standing, is -- pu t bluntly-- no longer an Article III case or controversy. An Article III case or controversy is one where all parties hav e standing, and a would-be intervenor, because he seeks to participate as aparty, must have standing

as well. The Supreme Court has made it very clear that "[t]hose who do no t possess Art. III standing may not litigate as su itors in the courts of the United States." Valley Forge , 454 U.S. at 475-76; see also Allen , 468 U.S

. at 750-51 ("In essence the question of standing is whether the litigant is ent itled to have the court decide the merits of the dispute or o f particular issues.") (citation omitted). Because an intervenor seeks to become a "suitor," and asks the court to "decide the merits of th e dispute," he must not only satisfy the requirements of Rule 24, he mus t also have Article III standing. See Building and Const. Trades , 40 F.3d at 1282 ("[B]ecause an intervenor participates on an equal footing with th e

### See also Ci ty of Cleveland, Ohio v. NRC , 17 F.3d 1515, 1516- 7 

### 1517 (D.C. Cir. 1994); Cook v. Boorstin , 763 F.2d 1462, 1470 (D.C. Cir. 1 985) ("[A]n intervenor of right, just like an ordinar y plaintiff, must have standing."); Southern Christian Leadershi p Conference v. Kelley , 747 F.2d 777, 779 (D.C. Cir. 1984) (Article III requires that Rule 24 "int erest" requirement be interpreted to refer only to "legally protectable interests").
-11- original parties to a suit, a movant for leave to intervene under Rul e 24( a)(2) must satisfy the same Article III standing requirements as th e original parties."). 7

The standing requirement is, at its core, a constitutionally ma ndated prerequisite for federal jurisdiction, and "an essential and unchangin g part of the case-or-controversy requirement of Article III." Lujan v

. Defenders of Wildlife , 504 U.S. 555, 560, 561 (1 992) (elements of standing doctrine are not "mere pleading requirements" bu t are "indispensable part" of case). The Supreme Court has often emphasized that a lawsuit in federa l court is not a forum for the airing of intereste d onlookers' concerns, nor an arena for public-p olicy debates. See, e.g. , Valley Forge , 454 U.S. at 473 (Article III "forecloses the conversion of c ourts of the United States into judicial versions of college debating forums."). While Rule 2 4 pro motes judicial economy by facilitating, where constitutionall y permissible, the part icipation of interested parties in others' lawsuits, the fact remains that a federal case is a limite d affair, and not everyone with an opinion is invited to attend.

III.
Having decided that those wishing to intervene in federal court must have Article III standing, we must now determine whether the Association passes this test. We think it does. In Lujan , the Supreme Court held tha t the "irreducible constitutional minimum of standing" required by Article III has three elements: First, the would-be litigant must have suffered an "injury in fact"; that is,

### -12-

an "i nvasion of a legally protected interest which is (a) concrete an d particula rized . . . and (b) actual or imminent, not conjectural o r hypothetical . . .." Lujan , 504 U.S. at 560 (in ternal quotation marks and citations omitted). Second, the would-be litiga nt must establish a causal
connec tion between the alleged injury and the conduct being challenged

. Ibid . Third, he must show that the injury is likely to be redressed by a favorable decision. Id. at 561; see Friends of the Boundary Water s Wilderness v. Thomas , 53 F.3d 881, 886 (8th Cir. 1995) (standing requires (1) injury in fact, (2) causation, and (3) redressability).

As we not ed in Sierra Club v. Robertson , 28 F.3d 753, 758 (8th Cir. 1994), "[c]omplaints of environmental and aesthetic harms are sufficient to lay the basis for standing." See also Lujan , 504 U.S. at 562-63 ("[T]h e desire to use or observe an animal species, even for purely aestheti c purposes, is undeniab ly a cognizable interest for purpose of standing."). The in juries alleged, however, must be imminent and direct, no t hypothe tical or fantastic. In Lujan , the Court emphasized that vagu e expressions of a hope to observe animals, in remote countries half-wa y around the world, "someday," could not establish the constitutionall y required "actual or imminent injury." Id. at 563-64. For example, on e member of the environmental group in Lujansaid that she hoped to visit Sr i Lanka someday and see leopards and elephants. When pressed, however, she admitted that her "hope" was not and could not be a "plan," because of a civil war. Id. at 564.

The alle ged injuries in Lujanwere far more speculative than thos e alleged here. In this case, the Association has submitted affidavits from several of its members stating that they have visited the Park in the past , that they plan to do so in the near and identifi able future, and that they will be injured directly if the restrictions on snowmobiling are lifted. Jennifer Hunt, Executive Director of the Voyageurs Region National Park

### -13-

Association, swore that she visits the Park at least twice a year, an d described specific, imminent, future trips she h ad planned. She described her activities in the Park and how she thinks sh e would be affected if the restri ctions on snowmobiling were lifted. Joe Kotnik, another member , submit ted a similarly detailed affidavit. These members claim tha t snowmobiling will threaten the Park's eagles and wolves and detract from their enjoyment of the Park's tranquility and be auty. The Association has allege d concrete, imminent, and redressable injuries in fact, which ar e neither "conjectural" nor "hypothetical." Cf. Lujan , 504 U.S. at 56 7 (rejecting environmental group's claims of injur y as "pure speculation and fantasy"); Sierra Club , 28 F.3d at 758-60 (asserted injuries were onl y potent ial, not imminent; challenged forest plan was merely a genera l planning tool).
In fact, the Association's case for Article III standing is bas ically th e same as the Snowmobilers'. The District Court held that th e Snowmobilers have standing because they have shown that

they ha ve used and wish to continue using th e Park 's now-restricted areas for snowmobiling an d wil dlife observation. Plaintiffs claim they hav e been harmed by the closures because they ar e prevented from observing wolves in their natura l habit at. Plaintiffs also contend they have bee n injured because the closure s were imposed without a proper basis . . ..

Mausolf I I , 913 F. Supp. at 1341. Thus, the District Court held, th e Snowmobilers had alleged concrete, particularize d, and immediate injuries, whichwere caused by the restrictions on snowmobiling and which could be redressed by the relief the Snowmobilers seek. Ibid. The same is true, mutatis mutandis , for the Association.

This case is a lot like Friends of the Boundary Waters , supra . There, an environmental group challenged certain portions of the

### -14-

Superior National Forest's management plan. The plan would have allowed motorized portages inthe Boundary Waters Canoe Area Wilderness and would ha ve increased below-cost timber sales. 53 F.3d at 883-84. Th e environmental group's members filed affidavits "replete with allegations of th e injuries that would result from the Plan's proposed increase i n below-cost timber sal es." Id. at 886. The district court had found that the planned timber sales would damage certain tr ee species and reduce tree diversity, and that the group's alleged injuries would likely be redressed by returning to the pre-plan levels of below-cost timber sales. Therefore , we held that the environmental group had Article III standing. Id. at 886

- 87. We distinguished Sierra Club , 28 F.3d 753 (8th Cir. 1994), noting tha t the forest plan in that case was a general planning tool for the future, whil e the plan at issue in Friends of the Boundary Waters explicitl y identified the area to be harvested. Friends , 53 F.3d at 887. Th e snowmobiling restrictions at issue in this case are similarly definite and imminent. We therefore hold that the Association has the Article II I standing required for intervention in this lawsuit.

IV.

Because t he Association has standing, the District Court could have granted the motion to intervene. We must now decide whether it shoul d have. The District Court denied the motion for intervention as of right and for permissive in tervention, and instead permitted the Association to participate as amicus curiae

. Mausolf I , 158 F. R.D. at 148. The District Court reasoned that t he Association's interests were adequately protected by the government, id. at 147-48, and that, if p ermitted to intervene, the Associationwould likely prejudice the rights of the original parties by delaying the case with additional discovery. Id. at 148. We review the District Court's denial of the Association's motion to intervene as o f right de novo , SierraClub v. Robertson , 960 F.2d 83, 85 (8th Cir. 1992). Because we conclude that the

### -15-

Association should have been allowed to interven e as of right, we need not discuss whether the District Court abused its discretion by not granting permissive intervention.
We agree with the District Court that the Association has an in terest in preventing unrestricted snowmobiling and in vindicating a
conser vationist vision for the Park. The Association has consistentl y demonstrated its interest in the Park's well-bei ng (as it sees it) and has worked hard over the years, in various proceedings, to protect tha t inter est. See Mausolf I , 158 F.R.D. at 146-47. We also agree with th e District Court's conc lusion that the Association's interests might suffer if the Go vernment were to lose this case, or to settle it against th e Associa tion's interests. Id. at 147. The only question left for us t o consid er, then, is whether the District Court correctly held tha t Association's interests were adequately protected by the Government.

Usual ly, Rule 24(a)'s third criterion is easy to satisfy, and th e would-be intervenor faces a "minimal burden" of showing that its interests
are not a dequately represented by the parties. Mille Lacs , 989 F.2d a t 999. But when one of the parties is an arm or agency of the government, and the case concerns a matter of "sovereign int erest," the bar is raised, because in such cases the government is "presumed to represent th e interests of all its citizens." Id. at 1000 (citation omitted); Unite d States v. Union Elec. Co. , 64 F.3d 1152, 1168-69 (8th Cir. 1995). W e emphas ize that the parens patriae presumption applies "in such cases " because it does not necessarily apply in all cas es to which the government is a pa rty. After all, when the proposed intervenors' concern is not a matter of "sovereign interest," there is no reas on to think the government will r epresent it. See Mille Lacs , 989 F.2d at 1001 ( parens patria e doctrin e did not apply because "[t]he counties' interests in land ar e narrower interests no t subsumed in the general interest Minnesota asserts in protecting fish and game");

### -16-

Uni on Elec. Co. , 64 F.3d at 1170 (holding that EPA did not adequatel y represent proposed intervenors' "parochial" interest in avoidin g liability).

Here, however, we agree with the District Court that th e Association's conserv ation interests are concerns that the Government, as par ens patriae , is charged with protecting, and that the presumption o f adequate representation therefore applies in this case. See Mausolf I , 15 8 F.R.D. at 147. This presumption may be rebutted, though, when a would-be int ervenor makes a strong showing of inadequate representation. See 7 C Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Pro cedure § 1909 (2d ed. 1986). That is, the presumption of adequat e representation may be "rebutted by a showing tha t the applicant's interest

can not be subsumed within the shared interest of the citizens . . .. " Union Elec. Co. , 64 F.3d at 1169.

The Assoc iation has rebutted the parens patriae presumption in this

cas e. Its concerns about the Government's enthusiasm for defending th e snowmobiling restrictions are not grounded, as t he Snowmobilers charge, in

a nebulo us and paranoid "distrust of government," but in the well

docume nted history of this particular case and controversy. Th e Association sued the Government in an earlier ca se concerning snowmobiling in the Park precisely because it thought the Gov ernment was not adequately representing the Association's interests. See VRNPA , supra . In fact, thi s earlier lawsuit is probably the reason for the c urrent regulations. It is unquestioned that, in the past, the Government has waived and failed t o enforce regulations against snowmobile use in the Park. Id. at *8. The Government also "breached [its] obligation under the Voyageurs Nationa l Park Act to make a wilderness recommendation within four years of . . . th e park's establishment." Id. at *11. The Snow

mobilers insist that the Government, like the Association, is interested in protecting wildlife and in upholding

### -17-

environm ental regulations. See Mausolf I , 158 F.R.D. at 147 ("Th e Defendants represent the citizenry on matters of wildlife and wilderness preservat ion . . ..") This is true; it does not, however, answer th e Association's objection that this interest is not adequately represented by the Government in this case. Unlike the Asso ciation, the Government is "obliged to represent . . . all of its citizens." Sierra Club , 960 F.2d at 86; see also In re Sierra Club , 945 F.2d 776, 780 (4th Cir. 1991 ) (noting that "[a]lthough the interests of the Sierra Club and [th e Gov ernment] may converge . . . they may [also] diverge . . ..). Whe n
man aging and regulating public lands, to avoid what economists call th e "tragedy of the commons," the Government must inevitably favor certain use s
ov er others. The Park was established for both recreational an d conservationist purposes. Voyageurs National Pa rk Act, 16 U.S.C. § 160 et seq. These purposes will sometimes, unavoidably, conflict, and even the Government cannot always adequately represent co nflicting interests at the

sam e time. See Sierra Club , 960 F.2d at 86 (contrasting State o f Arkansas's many competing interests with those of environmental group) ; United St ates v. Reserve Mining Co. , 56 F.R.D. 408, 419 (D. Minn. 1972 ) ("The United States is charged with representing a broad public interest and

. . . must represent varying interest[s], industry as well a s indivi duals."). In this case, the Government's interest in promotin g recreational activity and tourism in the Park, an interest many citizens share, may be adverse to the Association's conservation interests , interests also shared by many.

V.

In conclusion: The Constitution requires that Rule 24 intervenor s have Article III standing; the Association has standing; and it ha s rebutted any presumption that the Government wil l adequately represent its interests in this litigation. Therefore, the District Court should have allowed the Association to intervene as of right. The District Court' s order denying

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intervention is reversed. The District Court is directed to enter an orde r granting the Association's motion for leave to intervene as of right.
WOLLMAN, Circuit Judge, concurring and dissenting.

I concur in all of the court's opinion except the holding that a party seeking to intervene must have Article III standing. On that issue, I agree with the arguments advanced by the Association, as so well restate d in the court's opinion.
MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

I conc ur in all of the court's opinion except the holding that th e pres umptionthat the government is acting as parens patriae has bee n rebutted.
In order to qualify as one of the "v ery rare cases in which a member of the p ublic is allowed to intervene in an action in which the Unite d States ... represents the public interest," the Association must make "a very st rong showing of inadequate representation." 7C Wright et al. , supra , § 1909 at 342-43. The Association asserts that the government' s pri or failures to embrace its view of the proper emphasis to place o n conservation suffice to make that showing, but I do not think that they do

. Although the Associat ion and the government have differed over the issues relevant to this case in the past, the government has more recentl y demo nstrated a strong inclination to champion the Association' s environmental concerns. In fact, as the court itself observes, th e Snow mobilers initiated this case because the government's snowmobilin g limita tions were more restrictive than those proposed in the 199 1 wilderness plan, eventhough the Fish and Wildlife Service concluded that the wilde rness plan posed no threat whatever to Park wildlife. Th e Associationpoints to no specific evidence that the government has no t diligently defended the relevant

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restrictions, or that it is likely to become irr esolute in this respect in the future. In such circumstances, I cannot con clude that the Association has made a showing, much less a "very strong showing," id. , of inadequate representation by the government.
In fact, the present interests of th e government and the Association are essentially ident ical, both tactically and substantively. See Sierra Clu b , 960 F.2d at 86. Both seek the continued enforcement of th e snowmobiling restrictions. By doing so, both se ek to prevent snowmobiling in large areas of the Park, thereby preserving the Park's tranquility and going the extra mile to protect Park wildlife. It is true tha t conservationis but one of a panoply of interests that the government is obliged t o represent. Id. But the fact that government is charged wit h representing the inte rests of all citizens, and that some citizens do not share the Association's zeal for conservation, is not enough to overcome the presumption of adequate representation. If it were, the parens patria e doctrine would serve no useful purpose, because it would be rebutted i n virtuallyevery case. It is important to understand that the government is not obliged to be as zealous about conservation as the Association is. It is merely obliged to be properly solicitous of conservation as one use among the many compet ing uses to which parks can be put. There is simply ins ufficient evidence in this record to rebut the presumption of prope r governmental solicitousness.
I therefore respectfully dissent.

A true copy.

Attest:

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