_____________

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

___________
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Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

___________

RICHARD S. ARNOLD, Chief Judge.

The plaintiffs -- three snowmobile enthusiasts and the Minnesota

United Snowmobilers Association (collectively, "the Snowmobilers") -- sued

the Secretary of the Interior and other defendants ("the Government"),

seeking to enjoin the enforcement of restrictions on snowmobiling in

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 the

rules. The District Court denied the motion, concluding that the

Government adequately represented the Association's interests. Mausolf v.

Babbitt ("Mausolf I"), 158 F.R.D. 143 (D. Minn. 1994) (opinion of

Magistrate Judge), approved, Order of November 15, 1994 (order of District

Judge). We reverse.

During the pendency of this appeal, the District Court granted the

Snowmobilers' motion for summary judgment, and held that the Government's

explanation for the restrictions was inadequate under the Endangered

Species Act. The Court remanded the case to the Fish and Wildlife Service

and the Park Service to supplement the administrative record, and enjoined

enforcement of the restrictions on snowmobiling, "[p]ending a sufficient

explanation . . .." Mausolf v. Babbitt ("Mausolf II"), 913 F. Supp. 1334,

1344 (D. Minn. 1996). We think, however, that the question of intervention

is not moot, because the Association has appealed this judgment. Jeffrey

Mausolf 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 which

constituted a part of the historic route of the Voyageurs

who contributed significantly to the opening of the

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 (8th Cir.

1992). 

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I.

Voyageurs National Park is a watery maze of over 30 lakes and 900

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 largest

1

lakes -- Rainy, Kabetogama, Namakan, and Sand Point -- surround the

Kabetogama Peninsula (about one-half the Park's land area) and are

themselves linked by smaller lakes, rivers, and bogs. Most of the Park is

quite remote, and accessible only by water. Voyageurs is renowned for its

fishing and boating, and visitors often see bald eagles and grey wolves in

the wild. Voyageurs has also long been a popular destination for

snowmobilers, who have, over the years, used both the Park's frozen lake

surfaces and -- more controversially -- certain overland trails. This case

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 understand.

In 1991, after several years of study, the National Park Service issued

final regulations, based on a series of environmental- and wildlife-impact

reports, allowing snowmobiling on practically all 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 Secretary

may, when planning development of the park, include appropriate

provisions for (1) winter sports, including the use of snowmobiles,

. . .." 16 U.S.C. § 160h. After the Park was established,

snowmobiling continued relatively unregulated, pending the results

of wildlife-impact studies. See Mausolf II, 913 F. Supp. at 1338.

 The Association argued that the Voyageurs National Park Act, 4

16 U.S.C. § 160 et seq., and the Wilderness Act of 1964, 16 U.S.C.

§ 1131 et seq., required the Secretary of the Interior to submit a

"wilderness recommendation" for the Park to the President within

four years of the Park's establishment, and that the Secretary had

not complied with this requirement. VRNPA, 1991 WL 343370 at *1-2.

The Association also contended that the Wilderness Act, the

Voyageurs National Park Act, and Department of the Interior

regulations, see 36 C.F.R. § 2.18(c), prohibited the Park from

allowing widespread snowmobiling in potential wilderness areas.

VRNPA, 1991 WL 343370 at *1-3.

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trails and portage routes. See 36 C.F.R. § 7.33(b) (1991). The

3

Association then sued, claiming that the regulations, and the Department

of the Interior's failure to submit a "wilderness recommendation" for the

Park to the President, were illegal. The District Court ordered the

4

Secretary of the Interior to make a "wilderness recommendation" within a

year, but refused to enjoin snowmobiling in the Park's Kabetogama

Peninsula. See VRNPA, 1991 WL 343370 at *11-14. 

Accordingly, in August 1991, the National Park Service proposed a

wilderness plan which would have significantly reduced overland

snowmobiling, but allowed it on major lakes, a few designated portage

trails, and the Chain of Lakes Trail. The Park Service then asked the Fish

and Wildlife Service for its "biological opinion" about the effect, if any,

snowmobiling could have on grey wolves, bald eagles, and other animals in

the Park. In March 1992, Fish and Wildlife concluded that the Park

Service's plan would not threaten animals' survival or habitats.

Nonetheless, Fish and Wildlife directed the Park Service to close specified

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 temporary

closure of lake surfaces for wildlife-management purposes). This order,

which was renewed in 1993 and 1994, dramatically reduced the area available

for snowmobiling. 

These new regulations angered many past and potential Park visitors,

including the Snowmobilers, who could no longer enjoy some of the Park's

more beautiful and remote areas. The Snowmobilers sued the Government in

January 1994, claiming that Fish and Wildlife's biological opinion did not

support closing so much of the Park, and that the regulations were

therefore arbitrary and capricious. According to the Snowmobilers, not

only had the Government turned an abrupt and unexplained "about face," it

had also failed to consider the best available scientific and commercial

information before imposing the new restrictions. See Mausolf II, 913 F.

Supp. at 1335-36; Mausolf I, 158 F.R.D. at 144-45. The Association then

moved to intervene so it could vindicate its interest in restricting

snowmobiling in the Park and in making sure the new regulations were

strictly enforced. The Association contended that for years the Government

illegally -- and over the Association's objections -- permitted

unrestricted snowmobiling in the Park and refused to implement proper

wilderness-protection measures. The Association asserts that the

Government cannot be trusted to protect the Association's interests because

of its alleged history of siding with the Snowmobilers. See Mausolf I, 158

F.R.D. at 147. 

The District Court conceded that the Association had a recognized

interest which might be impaired by the disposition of the case. The Court

noted, however, that, under the parens patriae doctrine, government

entities are presumed to represent the interests of all their citizens.

Would-be intervenors can rebut
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this "presumption of adequate representation" only by identifying their

"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 Indians

v. Minnesota, 989 F.2d 994, 1001 (8th Cir. 1993)). The District Court was

not persuaded that the Government would unduly subordinate the

Association'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 permissive

intervention under Rule 24(b), fearing that the Association might delay the

case with additional discovery and further joinder of issues and parties.

Mausolf I, 158 F.R.D. at 148. However, recognizing the potential benefits

of the Association's collective knowledge and perspective, the Court

allowed the Association to participate as amicus curiae and to file a

memorandum addressing the parties' cross-motions for summary judgment.

Ibid. The District Court confirmed the Magistrate Judge's order, and the

Association appealed. We reverse. 

II.

The Snowmobilers contend that the Association may not intervene as

of right because it lacks Article III standing. The Magistrate Judge

concluded, and the District Judge agreed, that "[t]he question of standing

. . . is irrelevant to our determination of whether the Association may

intervene as of right." Mausolf I, 158 F.R.D. at 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
 The Court observed that 5

the precise relationship between the interest required to

satisfy [Rule 24] and the interest required to confer

standing . . . has led to anomalous decisions in the

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 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. Mille Lacs, 989 F.2d at 997. As the District Court observed, the

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 party

on whose side intervention was permitted, unless intervenor has Article III

standing). 

5

The courts of appeals have taken diverse, sometimes "anomalous," id.

at 68, approaches. By way of illustration, at least one circuit has held

that Article III standing is required to intervene, see, e.g., Building and

Const. Trades Dept., AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994);

another has stated that, while Article III standing 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 for

intervention, see, e.g., United States Postal Service v. Brennan, 579 F.2d

188, 190 (2d Cir. 1978); Associated Builders & Contractors v. Perry, 16

F.3d 688, 690 (6th Cir. 1994); Yniguez v. State of Arizona, 939 F.2d 727,

731 (9th Cir. 1991); and still another has suggested that Rule 24 requires

an interest even "greater than the interest sufficient to satisfy the

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

standing doctrine."); but see United States v. Metropolitan St.

Louis Sewer Dist., 883 F.2d 54, 56 (8th Cir. 1989) (noting that

proposed intervenors' allegations were "sufficient to give [them]

constitutional standing").

-8-

e.g., United 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, decided

intervention issues without discussing Article III standing.6

The Association urges us to adopt the "majority view," and to hold

that standing is not required for intervention. It contends that

"[i]ntervention is not a means for beginning a lawsuit, but a mechanism

that allows all parties with an interest to participate in an existing

lawsuit." Because the lawsuit's original parties have created the "case"

or "controversy" required by Article III, the Association 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 justiciable case and

controversy exists between the parties. Intervention

under Rule 24 presumes that there is a justiciable case

into which an individual wants to intervene. . . . [A]

party seeking to intervene need not demonstrate that he

has standing in addition to meeting the requirements of

Rule 24 as long as there exists a justiciable case and

controversy between the parties already in the lawsuit.

Chiles, 865 F.2d at 1212-13.
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We are not so sure as the Association that there is a "majority view"

on this question--indeed, our survey of the cases reveals considerable

diversity of views, not consensus. But even if the Association's position

did represent the majority view, we would still disagree with it. We

conclude that the Constitution requires that prospective intervenors have

Article III standing to litigate their claims in federal court. 

B.

Our Constitution is a charter for limited government. Article III

limits the "judicial power" to "cases" and "controversies." U.S. Const.,

art. III., § 2, cl. 1. From this "bedrock requirement," Valley Forge

Christian College v. Americans United for Separation of Church and State,

Inc., 454 U.S. 464, 471 (1982), flow several doctrines -- e.g., standing,

mootness, ripeness, and political question -- which "state fundamental

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 restraint on the "judicial power" as unyielding as that placed on

Congress by, for example, the First Amendment. 

Rule 24(a) speaks to practical concerns by requiring that intervenors

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 be

adequately protected by the existing parties. See New Orleans Public

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 interests or vindicate their

rights, to join an ongoing lawsuit instead. But, judicial economy and the

Rules of Civil Procedure notwithstanding, Congress cannot circumvent

Article III's limits on the judicial power. See
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Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114, 1128 (1996) (it is

"fundamental that Congress could not expand the jurisdiction of the federal

courts beyond the bounds of Article III"); Valley Forge, 454 U.S. at 471-75

(". . . [N]either the counsels of prudence nor the policies implicit in the

`case or controversy' requirement should be mistaken 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 requirements than it could expand the

Supreme Court's original jurisdiction by statute. See Marbury v. Madison,

1 Cranch 137 (1803). 

The Association's position is that once an Article III case or

controversy is underway, anybody who satisfies Rule 24's requirements may

then join in. As long as the original parties are involved, the

Association insists, the lawsuit remains within the scope of the federal

"judicial power." We disagree. In our view, an Article III case or

controversy, once joined by intervenors who lack standing, is -- put

bluntly -- no longer an Article III case or controversy. An Article III

case or controversy is one where all parties have standing, and a would-be

intervenor, because he seeks to participate as a party, must have standing

as well. The Supreme Court has made it very clear that "[t]hose who do not

possess Art. III standing may not litigate as suitors 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

entitled to have the court decide the merits of the dispute or of

particular issues.") (citation omitted). Because an intervenor seeks to

become a "suitor," and asks the court to "decide the merits of the

dispute," he must not only satisfy the requirements of Rule 24, he must

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 the
 See also City 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. 1985) ("[A]n intervenor of right, just like an ordinary

plaintiff, must have standing."); Southern Christian Leadership

Conference v. Kelley, 747 F.2d 777, 779 (D.C. Cir. 1984) (Article

III requires that Rule 24 "interest" requirement be interpreted to

refer only to "legally protectable interests"). 

-11-

original parties to a suit, a movant for leave to intervene under Rule

24(a)(2) must satisfy the same Article III standing requirements as the

original parties."). 

7

The standing requirement is, at its core, a constitutionally mandated

prerequisite for federal jurisdiction, and "an essential and unchanging

part of the case-or-controversy requirement of Article III." Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560, 561 (1992) (elements of standing

doctrine are not "mere pleading requirements" but are "indispensable part"

of case). The Supreme Court has often emphasized that a lawsuit in federal

court is not a forum for the airing of interested onlookers' concerns, nor

an arena for public-policy debates. See, e.g., Valley Forge, 454 U.S. at

473 (Article III "forecloses the conversion of courts of the United States

into judicial versions of college debating forums."). While Rule 24

promotes judicial economy by facilitating, where constitutionally

permissible, the participation of interested parties in others' lawsuits,

the fact remains that a federal case is a limited 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 that

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,
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an "invasion of a legally protected interest which is (a) concrete and

particularized . . . and (b) actual or imminent, not conjectural or

hypothetical . . .." Lujan, 504 U.S. at 560 (internal quotation marks and

citations omitted). Second, the would-be litigant must establish a causal

connection 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 Waters

Wilderness v. Thomas, 53 F.3d 881, 886 (8th Cir. 1995) (standing requires

(1) injury in fact, (2) causation, and (3) redressability).

As we noted 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]he

desire to use or observe an animal species, even for purely aesthetic

purposes, is undeniably a cognizable interest for purpose of standing.").

The injuries alleged, however, must be imminent and direct, not

hypothetical or fantastic. In Lujan, the Court emphasized that vague

expressions of a hope to observe animals, in remote countries half-way

around the world, "someday," could not establish the constitutionally

required "actual or imminent injury." Id. at 563-64. For example, one

member of the environmental group in Lujan said that she hoped to visit Sri

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 alleged injuries in Lujan were far more speculative than those

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 identifiable 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
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Association, swore that she visits the Park at least twice a year, and

described specific, imminent, future trips she had planned. She described

her activities in the Park and how she thinks she would be affected if the

restrictions on snowmobiling were lifted. Joe Kotnik, another member,

submitted a similarly detailed affidavit. These members claim that

snowmobiling will threaten the Park's eagles and wolves and detract from

their enjoyment of the Park's tranquility and beauty. The Association has

alleged concrete, imminent, and redressable injuries in fact, which are

neither "conjectural" nor "hypothetical." Cf. Lujan, 504 U.S. at 567

(rejecting environmental group's claims of injury as "pure speculation and

fantasy"); Sierra Club, 28 F.3d at 758-60 (asserted injuries were only

potential, not imminent; challenged forest plan was merely a general

planning tool). 

In fact, the Association's case for Article III standing is basically

the same as the Snowmobilers'. The District Court held that the

Snowmobilers have standing because they have shown that 

they have used and wish to continue using the

Park's now-restricted areas for snowmobiling and

wildlife observation. Plaintiffs claim they have

been harmed by the closures because they are

prevented from observing wolves in their natural

habitat. Plaintiffs also contend they have been

injured because the closures were imposed without a

proper basis . . ..

Mausolf II, 913 F. Supp. at 1341. Thus, the District Court held, the

Snowmobilers had alleged concrete, particularized, and immediate injuries,

which were 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
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Superior National Forest's management plan. The plan would have allowed

motorized portages in the Boundary Waters Canoe Area Wilderness and would

have increased below-cost timber sales. 53 F.3d at 883-84. The

environmental group's members filed affidavits "replete with allegations

of the injuries that would result from the Plan's proposed increase in

below-cost timber sales." Id. at 886. The district court had found that

the planned timber sales would damage certain tree 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 that

the forest plan in that case was a general planning tool for the future,

while the plan at issue in Friends of the Boundary Waters explicitly

identified the area to be harvested. Friends, 53 F.3d at 887. The

snowmobiling restrictions at issue in this case are similarly definite and

imminent. We therefore hold that the Association has the Article III

standing required for intervention in this lawsuit. 

 

IV. 

Because the Association has standing, the District Court could have

granted the motion to intervene. We must now decide whether it should

have. The District Court denied the motion for intervention as of right

and for permissive intervention, and instead permitted the Association to

participate as amicus curiae. Mausolf I, 158 F.R.D. at 148. The District

Court reasoned that the Association's interests were adequately protected

by the government, id. at 147-48, and that, if permitted to intervene, the

Association would 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 of

right de novo, Sierra Club v. Robertson, 960 F.2d 83, 85 (8th Cir. 1992).

Because we conclude that the
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Association should have been allowed to intervene 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 interest

in preventing unrestricted snowmobiling and in vindicating a

conservationist vision for the Park. The Association has consistently

demonstrated its interest in the Park's well-being (as it sees it) and has

worked hard over the years, in various proceedings, to protect that

interest. See Mausolf I, 158 F.R.D. at 146-47. We also agree with the

District Court's conclusion that the Association's interests might suffer

if the Government were to lose this case, or to settle it against the

Association's interests. Id. at 147. The only question left for us to

consider, then, is whether the District Court correctly held that

Association's interests were adequately protected by the Government. 

Usually, Rule 24(a)'s third criterion is easy to satisfy, and the

would-be intervenor faces a "minimal burden" of showing that its interests

are not adequately represented by the parties. Mille Lacs, 989 F.2d at

999. But when one of the parties is an arm or agency of the 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." Id. at 1000 (citation omitted); United

States v. Union Elec. Co., 64 F.3d 1152, 1168-69 (8th Cir. 1995). We

emphasize that the parens patriae presumption applies "in such cases"

because it does not necessarily apply in all cases to which the government

is a party. After all, when the proposed intervenors' concern is not a

matter of "sovereign interest," there is no reason to think the government

will represent it. See Mille Lacs, 989 F.2d at 1001 (parens patriae

doctrine did not apply because "[t]he counties' interests in land are

narrower interests not subsumed in the general interest Minnesota asserts

in protecting fish and game");
-16-

Union Elec. Co., 64 F.3d at 1170 (holding that EPA did not adequately

represent proposed intervenors' "parochial" interest in avoiding

liability).

Here, however, we agree with the District Court that the

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 in this case. See Mausolf I, 158

F.R.D. at 147. This presumption may be rebutted, though, when a would-be

intervenor makes a strong showing of inadequate representation. See 7C

Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and

Procedure § 1909 (2d ed. 1986). That is, the presumption of adequate

representation may be "rebutted by a showing that the applicant's interest

cannot be subsumed within the shared interest of the citizens . . .."

Union Elec. Co., 64 F.3d at 1169. 

The Association has rebutted the parens patriae presumption in this

case. Its concerns about the Government's enthusiasm for defending the

snowmobiling restrictions are not grounded, as the Snowmobilers charge, in

a nebulous and paranoid "distrust of government," but in the welldocumented history of this particular case and controversy. The

Association sued the Government in an earlier case concerning snowmobiling

in the Park precisely because it thought the Government was not adequately

representing the Association's interests. See VRNPA, supra. In fact, this

earlier lawsuit is probably the reason for the current regulations. It is

unquestioned that, in the past, the Government has waived and failed to

enforce regulations against snowmobile use in the Park. Id. at *8. The

Government also "breached [its] obligation under the Voyageurs National

Park Act to make a wilderness recommendation within four years of . . . the

park's establishment." Id. at *11. 

 The Snowmobilers insist that the Government, like the Association,

is interested in protecting wildlife and in upholding
-17-

environmental regulations. See Mausolf I, 158 F.R.D. at 147 ("The

Defendants represent the citizenry on matters of wildlife and wilderness

preservation . . ..") This is true; it does not, however, answer the

Association's objection that this interest is not adequately represented

by the Government in this case. Unlike the Association, 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 [the

Government] may converge . . . they may [also] diverge . . ..). When

managing and regulating public lands, to avoid what economists call the

"tragedy of the commons," the Government must inevitably favor certain uses

over others. The Park was established for both recreational and

conservationist purposes. Voyageurs National Park Act, 16 U.S.C. § 160 et

seq. These purposes will sometimes, unavoidably, conflict, and even the

Government cannot always adequately represent conflicting interests at the

same time. See Sierra Club, 960 F.2d at 86 (contrasting State of

Arkansas's many competing interests with those of environmental group);

United States 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 as

individuals."). In this case, the Government's interest in promoting

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 intervenors

have Article III standing; the Association has standing; and it has

rebutted any presumption that the Government will 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 order

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 restated

in the court's opinion.

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

I concur in all of the court's opinion except the holding that the

presumption that the government is acting as parens patriae has been

rebutted. 

 

In order to qualify as one of the "very rare cases in which a member

of the public is allowed to intervene in an action in which the United

States ... represents the public interest," the Association must make "a

very strong showing of inadequate representation." 7C Wright et al.,

supra, § 1909 at 342-43. The Association asserts that the government's

prior failures to embrace its view of the proper emphasis to place on

conservation suffice to make that showing, but I do not think that they do.

Although the Association and the government have differed over the issues

relevant to this case in the past, the government has more recently

demonstrated a strong inclination to champion the Association's

environmental concerns. In fact, as the court itself observes, the

Snowmobilers initiated this case because the government's snowmobiling

limitations were more restrictive than those proposed in the 1991

wilderness plan, even though the Fish and Wildlife Service concluded that

the wilderness plan posed no threat whatever to Park wildlife. The

Association points to no specific evidence that the government has not

diligently defended the relevant
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restrictions, or that it is likely to become irresolute in this respect in

the future. In such circumstances, I cannot conclude 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 the government and the Association

are essentially identical, both tactically and substantively. See Sierra

Club, 960 F.2d at 86. Both seek the continued enforcement of the

snowmobiling restrictions. By doing so, both seek 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 that

conservation is but one of a panoply of interests that the government is

obliged to represent. Id. But the fact that government is charged with

representing the interests 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 patriae

doctrine would serve no useful purpose, because it would be rebutted in

virtually every 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 competing uses to which parks can be put. There is simply

insufficient evidence in this record to rebut the presumption of proper

governmental solicitousness.

I therefore respectfully dissent.

A true copy.

Attest:

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