United States Court of Appeals,

Fifth Circuit.

No. 95-50672.

SIERRA CLUB; Clark Hubbs, Plaintiffs-Appellees,

v.

Dan GLICKMAN, Secretary, Department of Agriculture; United States Department of

Agriculture, Defendants,

American Farm Bureau Federation; State of Texas, Movants-Appellants.

May 2, 1996.

Appeal from the United States District Court for the Western District of Texas.

Before REYNALDO G. GARZA, JONES and DENNIS, Circuit Judges.

PER CURIAM:

The Sierra Club filed suit against the U.S. Department of Agriculture ("USDA") alleging that

numerous of its activities, including the subsidization of and failure to establish conservation programs

for farmers in central and western Texas, have led to over-pumping of the Edwards Aquifer. This

over-pumping, the Sierra Club complains, has in turn threatened endangered species and caused water

pollution, in violation of numerous federal laws. The American Farm Bureau Federation ("AFBF"),

as the representative of farmers pumping from the Aquifer, and the State of Texas ("State") moved

to intervene as of right, or alternatively as of permission, in the Sierra Club's suit. Fed.Rule Civ.Proc.

24(a), (b). The district court denied the motions. We reverse the district court's decision and render

judgment granting intervention as of right to the AFBF and the State.

Federal Rule of Civil Procedure 24(a)(2) sets forth the requirements for intervention as of

right: (1) the intervention application must be timely; (2) the applicant must have an interest relating

to the property

which is t he subject of the action; (3) the applicant must be so situated that the

disposition of the action may, as a practical mat t er, impair or impede his ability to protect that

interest; and (4) the applicant's interest must be inadequately represented by the existing parties. We

review the district court's finding of t imeliness for an abuse of discretion and the other requirements

de novo. Sierra Club v. Espy, 18 F.3d 1202, 1205 & n. 2 (5th Cir.1994).1 Additionally, the Sierra Club contends the district court abused its discretion in finding the

AFBF's and the State of Texas's intervention applications were timely. Interestingly, the Sierra

Club argues the applications were untimely because they were made too early, not too late. We

reject this argument. The timeliness requirement only bars intervention applications made too

late. In the instant case, the district court found the AFBF did not satisfy the requirements for

intervention as of right because (1) its members did not have a sufficient interest relating to the Sierra

Club's suit; (2) the interests of its members would not be impaired because they will not be bound

by the outcom e of that suit; and (3) the USDA will adequately represent their interests. 1 We

disagree.

First, the AFBF's members do have a suffici ent int erest to intervene because they are real

p art ies in interest to the Sierra Club's suit. S ee League of United Latin American Citizens v.

Clements, 884 F.2d 185, 187 (5th Cir.1989) (applicant can intervene if it is a "real party in interest").

The Sierra

Club's complaint targets the farmers' pumping. It alleges that the farmers' pumping

constitutes a "substantial threat" to endangered species and public health, in violation of numerous

federal laws. The prayer for relief asks the district court, i nter alia, to enjoin the USDA immediately

from expending any funds to the farmers that directly or indirectly support pumping from the Aquifer;

to order the USDA to immediately establish land conservation and water utilization programs for the

farmers; and to order the USDA to consult with other authorities on the effects on the Aquifer of

its programs which assist farmers. Thus the Sierra Club's suit intends to have a direct impact upon

the AFBF's members w ho pump irrigation water from the Aquifer; the proffered violations and

remedy confer on AFBF's members a sufficient interest to intervene.

The First Circ uit reached the same conclusion in addressing an applicant's interest in

intervention under similar circumstances. In C onservation Law Foundation of New England, Inc.

v. Mosbacher, 966 F.2d 39 (1st Cir.1992), the court held that commercial fishing groups had a

sufficient interest to intervene as of right in an environmentalist suit against the U.S. Department of

Commerce seeking to force that agency to regulate fishing off the coast of New England. The court

explained that "[t]he fishing groups seeking intervention are the real targets of the suit and are the

subjects of the regulatory plan. Changes in the rules will affect the proposed intervenors' business,2 The recently enacted Freedom to Farm Act entitles farmers to enter into subsidy contracts for

the next seven years. H.R. 2854, 104th Cong., 1st Sess. (1996) (signed by President Clinton on

April 4, 1996). both immediately and in the future." Id. at 43.

Additionally, the AFBF members have a sufficient interest to justify intervention because the

Sierra Club's suit threatens their contracts with the USDA. In S ierra Club v. Espy, 18 F.3d 1202 (5th

Cir.1994), the Fifth Circuit held that timber purchasers' organizations were entitled to intervene as

of right in a suit by the Sierra Club against the U.S. Forest Service seeking to ban even-aged logging

practices in East Texas. The court explained the timber purchasers had "legally protectable property

interests in existing timber contracts t hat are threatened by the potential bar on even-aged

management." I

d. at 1207. In the instant case, the AFBF's members have existing subsidy contracts

with the USDA and are entitled to enter into subsidy contracts in the future. 2 The Sierra Club's suit

potentially interferes with these contractual rights. Ultimately, the suit expressly seeks to enjoin the

USDA from granting subsidies to farmers pumping from the Aquifer. In the short term, the Sierra

Club's sought relief of forcing the USDA to consult with other federal agencies would r esult in a

ninety-day suspension of the farmers' existing subsidy contracts.

Second, we reject the district court's contention that the AFBF's members are not impaired

by no n-intervention because they will not be bound by the outcome of the Sierra Club's suit. The

Fifth Circuit has held that the star e decisis effect of an adverse judgment constitutes a sufficient

impairment to compel intervention. E spy, 18 F.3d at 1207. In the instant case, a ruling in the Sierra

Club's favor could be relied upon as a precedent in suits against individual farmers over their pumping

from the Aquifer. Thus, the Sierra Club's suit may, as a practical matter, impair or impede the AFBF

members' interests.

Third, we disagree with the district court that the USDA will adequately represent the AFBF

members' interests. As the Fifth Circuit explained in E spy, supra, "[t]he government must represent

the broad public interest, not just the economic concerns of [one] industry." 18 F.3d at 1208. For

this reason alone, the interests of AFBF members will not necessarily coincide, even though, at this

point, they share common ground. AFBF has more flexibility, however, in advocating its position,because the federal government is bound by a prior court judgment that pumping from the Aquifer

"takes" endangered species; the AFBF intends to refute that finding. In sum, the AFBF has met the

requirements to intervene as of right.

Likewise, the district court erred in denying intervention as of right to the State of Texas.

Initially, we disagree with the district court that the State does not have a sufficient interest related

to the Sierra Club's suit. To the contrary, the State has established a special commission, the Edwards

Aquifer Authority, to manage the Aquifer's use. 1993 Tex.Sess.Law Serv. Ch. 626 (Vernon's). The

Sierra Club's desire to use this lawsuit to force the USDA to establish programs limit ing agricultural

pumping directly interferes with the commission's statutory authority. Also, the Texas Department

of Agriculture has established programs providing loan guarantees and other financial assistance to

farmers, including those who pump from the Aquifer. If Sierra Club succeeds in cutting off USDA

subsidies and in forcing the USDA to limit agricultural pumping from the Aquifer, the judgment will

directly interfere with the State's abilit y to run its agricultural programs. Additionally, the State has

an interest in maint aining the agricultural industry in central Texas and in representing the 1.5 millio n

users of the Aquifer.

The district court also erred in concluding that the USDA would adequately represent the

State's interests. The USDA is legally obliged to represent the interests of all U.S. citizens. S ee Espy,

18 F.3d at 1208. The State of Texas has a narrower but independently vital interest in representing

its residents, maintaining its agricultural industry, and allocating its natural resources.

Finally, we reject the district court's ruling that the AFBF does not meet the requirements for

associational standing. S ee Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343,

97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977) (setting forth requirements for associational standing).

First, the AFBF's members have standing to intervene individually in the Sierra Club's suit; we have

held above that the farmers have sufficient interests related to the Aquifer and the USDA's subsidies.

Second, the interests the AFBF is seeking to protect are germane to the organization's purpose. That

not all AFBF members support intervention is not dispositive. The AFBF has standing to sue if only

a few members support it. P layboy Enterprises, Inc. v. Public Serv. Comm'n, 906 F.2d 25, 34 (1stCir.), cert. denied sub nom. Cruz v. Playboy Enterprises, In c., 498 U.S. 959, 111 S.Ct. 388, 112

L.Ed.2d 399 (1990).

In conclusion, the district court misapprehended the law governing intervention of right and

so misused his d iscret io n by withholding intervention from AFBF and the State of Texas. The

judgment of the district court is REVERSED and judgment is RENDERED granting the AFBF and

the State of Texas intervention as of right. The case is REMANDED for further proceedings.