The Honorable Owen M. Panner, United States District Judge for the District 1 of Oregon, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1139-WMKC

___________ PETE'S BREWING COMPANY, et al., * * Plaintiffs-Appellees, * * v. * Appeal from the * United States District Court HOPE E. WHITEHEAD and * for the Western District MISSOURI DIVISION OF * of Missouri, Western LIQUOR CONTROL, * Division * Defendants-Appellees, * [UNPUBLISHED] * ANHEUSER-BUSCH, INC., * * Movant/Appellant. *

___________ Submitted: June 11, 1998 Filed: August 24, 1998

___________ Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit Judges, and PANNER , District Judge 1

___________2

OWEN M. PANNER, District Judge.
Plaintiffs , several out-of-state breweries, challenge a 1996 Missouri law which requires a statement disclosing the ownership and location of production facilities on all maltliquor beverages sold in that state. Defendants are the Missouri Division o f Liquor Control and

its supervisor, Hope Whitehead. Appellant Anheuser-Busch, Inc. ("AB") moved to inter

vene in the district court both as of right and permissively. The district court denied the motions. AB appeals. We affirm.
BACKGROUND In 1996, th e Missouri Legislature passed the law at issue in response t o complaints that certain brew ers, whose products were produced in unused facilities of large brew ers, were marketing those products as having been made in smal l microbreweries. In pertinent part, the law provides: [a]ny malt liquor which is offered for sale in this state and manufactured at other than a facility owned by the person whose name appears on the label of the container shall include on the label the name and location of the owner of the facility which produced and packaged the malt liquor.
Mo. Rev . Stat. § 311.360.2. The law was immediately challenged in state court bu t went into effect as scheduled on January 1, 1997. The Missou ri Supreme Court upheld the law in October 1997.
Plaintiffs filed this case on November 21, 1997. The next day, the district court granted plaintiffs' motion for a temporary restraining order prohibiting enforcement of the law, and set a December 18, 1997 trial date.
AB moved to intervene. The district court concluded that the motion was timely bu t denied the motion to intervene as of right because it concluded that defendant s adequately represented AB's interest. It also denied the permissive intervention motion.3

The day after denying AB's motion, the district court continued the tria l date until February 1998. Thereafter, the district court grante d AB leave to participate as amicus curiae. The district court conducted a court trial on February 5 and 6, 1998. A s amicus, AB f

iled a post-trial brief with supporting affidavits. At the time of th e appellate briefing, the district court had not yet issued its decision on the merits.
DISCUSSION I. Intervention as of Right We review de novo the district court's denial of a motio n to intervene as of right. S t andard Heating & Air Conditioning Co. v. City of Minneapolis , 137 F.3d 567, 570 (8th Cir. 1998).
Plaint iffs argue that AB waived the right to continue to seek intervention

. Plaintiffs maintain that AB should have renewed its motion to intervene or asked the district court to reconsider its prior ruling after the district co urt continued the trial from December 1997 to February 1998. We reject this argument. The district cour t properly rested its decision on its determination that defendants adequately represented AB' s interest, not on the timing of the trial.
AB must demonstrate Article III standing as a prerequisite to intervention

. Standard Heat ing , 137 F.3d at 570. We agree with the district court that AB ha d standing. See Mausolf v. Babbitt , 85 F.3d 1295, 1301 (8th Cir. 1996)(listing Article III standing criteria).
Once standing is established, AB is entitled to intervene if it makes a timel y application and it claims an interest relating to the property or transaction which is th e subject of the action and [it] is so situated that the disposition of the4

action may as a practical matter impair or impede [its] ability to protect tha t interest, unless [its] interest is adequately represented by existing parties. Fed. R. Civ. P. 24(a)(2) . Because the district court decided that AB had a recognized interest in the subject

matter of the litigation that might be impaired by the disposition of the case, we examine only whether AB's interest is adequately protected by th e existing parties. Where the interests asserted by the movant are shared with a government al entity acting in a matter of sovereign interest, a presumption arises that the governmen t adequately represents its citiz ens' interests. Standard Heating , 137 F.3d at 572. If the movant's only interest in the suit is shared with the public interest, the citizen mus t rebut the adequate representation presumption. Chiglo v. City of Preston , 104 F.3 d 185, 188 (8th Cir. 1997).
The district court concluded that AB's interests were coextensive wit h defendant s' interests. The district court noted that the issue in the case was th e cons titutionality and enforceability of the statute and that defendants adequatel y represented AB's interests. AB argues that defendants do n ot adequately represent its interests because AB has a distinct proprietary stake in the outcome of the liti gation, distinguishable from the general public interest in enforcing the law. It further argues that defendants ' enforcement of the law has been less than vigorous. The record shows that defendants have sought to enforce the statute. Defendants have responded to the complaint and de fended the case at trial. We agree with the district court that there has been n o showing of misfeasance or nonfeasance on the part of defendants. As to AB's proprietary interest, there is some authority for allowing intervention when the intervenor has a more narrow and "parochial" interest than the sovereign.5

See , e.g. , Mille Lacs Band of Chippewa Indians v. Minnesota , 9 89 F.2d 994, 1001 (8th Cir. 1993). However, as the district court noted, while both the state and th e inter venors in Mille Lacs were concerned with protecting fish and game, the state' s int erestpotentially conflicted with the intervenors' interests because the state coul d have advanced a position consistent with pr otecting fishing and gaming in the area and which could have adversely affected the property values of the intervenors. Id. a t 1000-01. In an attempt to distinguish the intere sts in the instant case, AB characterizes its interest as a concern base d upon a loss of business in the marketplace and defendants' in terestas protecting its citizens from deceptive marketing. What AB fails t o acknowledge, however, is that its putative loss of business would occur only as a result of the deceptive marketing. Because the loss of business results from the deceptiv e mark eting the statute is aimed at prohibiting, AB's interest is exactly the interes t defendants seek to protect in defending the statute. While AB's motive may b e distingu ishable from defendants', its interest, prohibiting deceptive marketing, is th e same. Thus, Mille Lacs is distinguishable.
Be cause we affirm the district court, we need not consider plaintiffs' harmles s error argument.
II. Permissive Intervention We review the denial of a motion for permissive intervention for abuse o f discretion. Standard Heating , 137 F.3d at 573. The movant may be allowed t o interve ne in an action when its "claim or defense and the main action have a question of law or fact in common." Fed. R. Civ. P. 24(b)(2). Additionally, the interventio n must not unduly delay or prejudice the adjudi cation of the rights of the original parties. Id.6

Th e district court concluded that AB was not asserting a separate an d distinguishable claim and that intervention would not promote judicial economy. There was no abuse of discretion. We affirm the district court but note that AB may renew its in tervention motions if the district court de cides the merits of the case in plaintiffs' favor and defendants do not app eal. Our recognition of AB's right to renew its motions is not an endorsement of the merits of such motions.
Affirmed. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.