## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 10 2001 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UTAH ASSOCIATION OF COUNTIES, on behalf of its members; MOUNTAIN STATES LEGAL FOUNDATION, Plaintiffs-Appellees,

v. WILLIAM JEFFERSON CLINTON, in his official capacity as President of the United States; UNITED STATES OF AMERICA; KATHLEEN A MCGINTY, in her official capacity as Chair of the Council on Environmental Quality; THE COUNCIL ON ENVIRONMENTAL QUALITY; BRUCE BABBITT, in his official capacity as Secretary of the Interi or; DEPARTMENT OF INTERIOR; BUREAU OF LAND MANAGEMENT; SYLVIA BACA, in her official capacity as Interim Director of the Bureau of Land Management, Defendants,

_________________________ SOUTHERN UTAH WILDERNESS ALLIANCE; THE WILDERNESS SOCIETY; THE GRAND CANYON TRUST; ESCALANTE CANYON OUTFITTERS, INC.; BOULDER MOUNTAIN LODGE; ESCALANTE’S GRAND STAIRCASE B&B INN, INC., Movants-Appellants. No. 00-4143-2- Appeal from the United States District Court

for the District of Utah (D.C. No. 97-CV-479)

Brian B. O’Neill of Faegre & Benson LLP, Minneapoli s, Minnesota (Richard A. Duncan and William L. Underwood of Faegre & Benson LLP, Minneapolis, Minnesota; Heidi J. McIntosh and Stephen H.M. Blochof Southern Utah Wilderness Alliance, Salt Lake City, Utah, with him on the briefs), for MovantsAppellants. Susan Amanda Koehler of Mountain States Legal Found ation, Denver, Colorado; and Michael B. Marinovich of C.E. Brooks & Associat es, P.C., Denver, Colorado (William Perry Pendley and David Andrew Wight of Mo untain States Legal Foundation, Denver, Colorado; and Constance E. Broo ks of C.E. Brooks & Associates, P.C., with them on the brief) for Plaintiffs-Appellees.

Before SEYMOUR , McKAY and BRORBY , Circuit Judges.

SEYMOUR , Circuit Judge.

The Southern Utah Wilderness Alliance, The Wilderne ss Society, The Grand Canyon Trust, Escalante Canyon Outfitters, In c., Escalante’s Grand Staircase B&B/Inn, and Boulder Mountain Lodge sought leave to intervene in this action by the Utah Association of Counties to enjoi n and have declared illegal the Presidential Proclamation establishing the Grand St aircase Escalante National Monument. The district court denied the motion to intervene. We reverse.-3- I Background On September 18, 1996, President Clinton issued Pre sidential Proclamation Number 6920 establishing the Grand Staircase-Escalante National Monument and reserving approximately 1.7 million acres of federa l land in southern Utah from public entry under the public land laws. The Procl amation describes the land at issue as follows:

The Grand Staircase-Escalante National Monument’s v ast and austere landscape embraces a spectacular array of s cientific and historic resources. This high, rugged, and remote region, where bold plateaus and multi-hued cliffs run for distances th at defy human perspective, was the last place in the continental United States to be mapped. Even today, this unspoiled natural area re mains a frontier, a quality that greatly enhances the monument’s value for scientific study. The monument has a long and dignified humanhistory: it is a place where one can see how nature shapes human end eavors in the American West, where distance and aridity have beenpitted against our dreams and courage. The monument presents exemplary opportunities for geologists, paleontologists, arch eologists, historians, and biologists. Proclamation No. 6920, 61 Fed. Reg. 50223 (Sept. 18 , 1996). On June 23, 1997, the Utah Association of Counties filed a complaint for injunctive and declaratory relief against the Presi dent and various federal officials, alleging that the creation of the monume nt was an illegal attempt by the Secretary of the Interior to prevent a proposed und erground coal mine at Smokey Hollow, owned by Andalex Resources Corporation and located within the-4-

monument. The complaint sought to have the Preside ntial Proclamation set aside on the grounds that it violated the separation of p owers doctrine, exceeded powers vested in the president by the Antiquities Act of 1 906, 16 U.S.C. § 431, and failed to comply with the National Environmental Policy Ac t, 42 U.S.C. § 4332 (NEPA), the Federal Land Policy and Management Act, 43 U.S. C. §§ 1701 et seq. (FLPMA), and the Administrative Procedure Act, 5 U. S.C. §§ 701-706 (APA). On December 15, 1997, the Mountain States Legal Fou ndation filed its first amended complaint, seeking the same relief against the same defendants and asserting virtually the same alleged illegalities. The two cases were consolidated later that month. On March 21, 2000, the intervenors sought leave “to represent the interests of public interest organizations and individuals wh ose goals include protecting the nation’s public lands and assuring their contin ued integrity in perpetuity.” Aplt. App. at 85. The district court held a hearin g on the motion and denied it, stating that [t]his case is not about the environment, it is notabout the intervenors’ property rights or interests in the mo nument in question. It is not about that. It is about the legality of the president’s action in creating the monument. The allegations are thathe violated several statutes[,] primarily the Antiquities Act[, ] by the way this monument was created. This issue is adequately rep resented by the government. Id. at 153.1 “An order denying intervention is final and subjec t to immediate review if

it prevents the applicant from becoming a party to an action.” Coalition of Arizona/New Mexico Counties v. Dep’t of the Interio r , 100 F.3d 837, 839 (10th Cir. 1996). -5- The intervenors appeal, 1 arguing the district court erred in its applicatio n of the standards governing intervention as of right un der Fed. R. Civ. P. 24(a)(2) and under a proper assessment of the relevant factors they are entitled to intervene as a matter of right. Alternatively, the intervenors contend the district court abused its discretion in failing to grant permissive intervention under Rule 24(b). Plaintiffs respond that the application for interve ntion failed to meet any of the requirements for intervention as of right, assertin g (1) the application was not timely and plaintiffs would therefore be prejudiced by allowing intervention, (2) the intervenors’ interests do not meet the requirem ents for intervention, (3) the intervenors have not shown those interests would be subject to impairment, and (4) their interests would be adequately representedby the government in any

event. Intervention is authorized by Rule 24, which provid es in pertinent part:

Upon timely application anyone shall be permitted t o intervene in an action: . . . when the applicant claims an in terest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of th e action may as a practical matter impair or impede the applicant’s a bility to protect that interest, unless the applicant’s interest is a dequately represented by existing parties.-6-

Fed. R. Civ. P. 24(a). Accordingly, an applicant may intervene as of rightif: (1) the application is “timely”; (2) “the applicant claims an interest relating to the property or transaction which is the subjectof the action”; (3) the applicant’s interest “may as a practical matter ” be “impair[ed] or impede[d]”; and (4) “the applicant’s interest is [n ot] adequately represented by existing parties.” Coalition of Arizona/New Mexico Counties v. Dep’t o f Interior , 100 F.3d 837, 840 (10th Cir. 1996) (quoting Fed. R. Civ. P. 24(a)(2)) . This circuit follows “a somewhat liberal line in allowing intervention.” Id. at 841 (quoting Nat’l Farm
Lines v. Interstate Commerce Comm’n , 564 F.2d 381, 384 (10th Cir. 1977)). We generally review a district court’s ruling on the t imeliness of a motion to intervene under an abuse of discretion standard. Id. at 840. When the court makes no findings regarding timeliness, however, we review this factor de novo. See Stupak-Thrall v. Glickman , 226 F.3d 467, 472 n.5 (6th Cir. 2000); Sierra Club v. Espy , 18 F.3d 1202, 1205 n.2 (5th Cir. 1994). We revie w de novo the court’s rulings on the three remaining requirements of Rule 24(a)(2). See Coalition , 100 F.3d at 840.

II
Timeliness We turn first to the issue of timeliness. As menti oned above, the complaints in this case were filed in 1997 and the motion for leave to intervene-7-

was not filed until 2000. Plaintiffs contend the application did not meet the timeliness requirement of Rule 24(a)(2). At the beginning of the hearing on the application to intervene, the district court stated: . . . you are late. You’re two and a half years late. This case has been kind of slow going anyway with the briefing an d discovery, and I am sure it is for valid reasons, but it has been a fairly slow process anyway. It is kind of late to be adding parties. Aplts. App. at 131. In response, counsel for the i ntervenors contended plaintiffs had not identified any prejudice arising from the l ength of time between the filing of the complaints and the motion to intervene; prom ised the intervenors would agree to be bound by whatever discovery schedule wa s already in place, would not seek additional discovery, and would not file a cou nterclaim or raise defenses not raised by the government; and pointed out that whil e some discovery had occurred, not a lot had happened in the case. When counsel for the Utah Association of Counties subsequently proposed to ad dress the timeliness issue, the district court directed him to move on to anoth er matter. Shortly thereafter, in ruling from the bench, the court did not mention th e timeliness factor, basing its denial instead on other grounds. The court’s writt en order denying intervention likewise does not refer to the matter of timeliness . While the court initially observed that the application was “late,” we conclu de the court simply made no findings regarding timeliness. We therefore reviewthis question de novo. See-8-

Stupak-Thrall , 226 F.3d at 472 n.5 (when district court makes no findings on timeliness, court of appeals does not remand but ap plies de novo level of review). The timeliness of a motion to intervene is assessed“in light of all the circumstances, including the length of time since t he applicant knew of his interest in the case, prejudice to the existing parties, prejudice to the applicant, and the existence of any unusual circumstances.” Sanguine, Ltd. v. United States Dep’t of Interior , 736 F.2d 1416, 1418 (10th Cir. 1984) (citations o mitted). “The analysis is contextual; absolute measures of timeli ness should be ignored.” Sierra Club v. Espy , 18 F.3d at 1205; see also Stupak-Thrall , 226 F.3d at 475 (absolute measure of time between filing of the complaint and the motion to intervene is one of least important circumstances). “The requir ement of timeliness is not a tool of retribution to punish the tardy would-be intervenor, but rather a guard against prejudicing the original parties by the fai lure to apply sooner. Federal courts should allow intervention ‘where no one woul d be hurt and greater justice could be attained.’” Sierra Club v. Espy , 18 F.3d at 1205 (citation omitted); see also 7C C HARLES A LAN W RIGHT , A RTHUR R. M ILLER & M ARY K AY K ANE , F EDERAL P RACTICE & P ROCEDURE § 1916, at 425-26 (2d ed. 1986) (“The requirement of timeliness is not a means of punishm ent for the dilatory and the mere lapse of time by itself does not make an appli cation untimely.” (footnote omitted)).2 The intervenors assert on appeal that they waited to file their motion to

intervene until resolution of the government’s disp ositive motion in order to ascertain whether there would ultimately be a case in which to intervene. “Courts should discourage premature intervention that waste s judicial resources.” Sierra Club v. Espy , 18 F.3d 1202, 1206 (5th Cir. 1994). In our view, this circumstance is an additional factor indicating the motion to in tervene was not untimely.

3 We note the government has taken no position on th e motion to intervene. -9- On appeal, plaintiffs maintain that allowing interv ention under the circumstances would prejudice them because the case is ready for disposition. The record indicates, to the contrary, that the cas e is far from ready for final disposition; no scheduling order has been issued, n o trial date set, and no cut-off date for motions set. According to the district co urt docket, all that had occurred prior to the motion to intervene were document disc overy, discovery disputes, and motions by defendants seeking dismissal on jurisdic tional grounds. 2 Plaintiffs also assert that they would be prejudice d by allowing intervention because adding additional parties would double the work load and add issues. These factors, however, are a function of intervent ion itself rather than the timing of the motion to intervene. The prejudice prong of the timeliness inquiry “measures prejudice caused by the intervenors’ delay–not by the intervention itself.” Ruiz v. Estelle , 161 F.3d 814, 828 (5th Cir. 1998). In view of the relatively early stage of the litigation and the lack of prejudice to plaintiffs flowing from the length of time between the initiation of the proceedings and the motion to intervene, 3 we conclude the request for-10-

intervention is timely.

III
The Intervenors’ Interest Under Rule 24(a)(2), the intervenors must “claim[] an interest relating to the property or transaction which is the subject of the action.” The property that is the subject of plaintiffs’ lawsuit is the monume nt itself. The intervenors claim they have an interest in the continued existence of the monument and its reservation from public entry, both on the basis of their financial stake in the tourism the monument has created and on the basis o f their desire to further their environmental and conservationist goals by preservi ng the undeveloped nature of the lands encompassed by the monument. They point out that they were “vocal and outspoken champions and advocates” for the creation of the monument, they have regularly commented on and participated in the government’s monument land management plan, and they regularly visit the monument for aesthetic, scientific and recreational purposes. Br. of Aplts . at 19-20. We recently addressed the nature of the interest an applicant for intervention must demonstrate in Coalition of Arizona/New Mexico Counties , 100 F.3d at 840-44. In that case, a commercial wildlif e photographer, Dr. Robin Silver, who had a particular interest in the Mexica n Spotted Owl, sought to-11-

intervene in a suit brought against the United Stat es Fish and Wildlife Service challenging the Service’s decision to protect the O wl under the Endangered Species Act. Dr. Silver had studied and photograph ed the Owl in the wild and had been instrumental in the Service’s initial deci sion to protect the Owl under the Act. In addressing whether Dr. Silver had the requisite interest to intervene as of right, we observed that while “[t]he contours of th e interest requirement have not been clearly defined,” in this circuit the interestmust be “direct, substantial, and legally protectable.” Id. at 840 (quoting In re Kaiser Steel Corp. , 998 F.2d 783, 791 (10th Cir. 1993)). We further pointed out thatthe inquiry is “highly factspecific,” and that “the ‘interest’ test is primari ly a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” Id. at 841 (citations omitted). We concluded that “Dr. Silver’s involvement with the Owl in the wild and his persistent record of advocacy for its protection amounts to a direct and substantial interest . . . for the purpose of intervention as of right.” Id. In reaching this conclusion, we drew support from the Supreme Court’s statement that “th e desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purposes of standing.” Lujan v. Defenders of Wildlife , 504 U.S. 555,4 As we pointed out in Coalition , because Article III standing requirements

are more stringent than those for intervention unde r Rule 24(a), a determination that intervenors have Article III standing compels the conclusion that they have the requisite interest under the rule. Coalition , 100 F.3d at 842 (citing Yniguez v. Arizona , 939 F.2d 727, 735 (9th Cir. 1991)). -12- 562-63 (1992). 4 We cited numerous cases in which environmental or ganizations and other special interest groups have been held to have a sufficient interest for purposes of intervention as of right in cases in wh ich their particular interests were threatened. See Coalition , 100 F.3d at 842-43 (citing cases). We also held that Dr. Silver’s interest was legally protectable as evidenced by his efforts to ensure the Owl’s protection under the Endangered Sp ecies Act. Id. at 841. In our judgment, the circumstances in Coalition are sufficiently analogous to those here to indicate persuasively that the int ervenors have the requisite interest. In addition to Coalition and the authority upon which it relies, we find persuasive those opinions holding that organization s whose purpose is the protection and conservation of wildlife and its hab itat have a protectable interest in litigation that threatens those goals. See, e.g., Mausolf v. Babbitt , 85 F.3d 1295, 1302 (8th Cir. 1996) (conservation groups see king to preserve wilderness nature of national park had requisite interest in l awsuit seeking to undo snowmobiling restrictions); Sagebrush Rebellion, Inc. v. Watt , 713 F.2d 525, 527- 28 (9th Cir. 1983) (National Audubon Society had su fficient interest in lawsuit challenging withdrawal of federal land to create bi rd conservation area).-13-

In ruling to the contrary, the district court state d that “[t]his case is not about the environment, it is not about the interven ors’ property rights or interests in the monument in question. . . . It is about the legality of the president’s action in creating the monument.” Aplt. App. at 153. Pla intiffs rely on the district court’s statements in maintaining the intervenors d o not meet either the interest or impairment prong of the Rule 24(a)(2) inquiry. Both the district court and plaintiffs have simply misperceived the interest in quiry mandated by the rule. The interest of the intervenor is not measured by the particular issue before the court but is instead measured by whether the intere st the intervenor claims is related to the property that is the subject of the action

. See Sagebrush Rebellion , 713 F.2d at 528. Plaintiffs challenge the creation of the monument itself; it is thus beyond dispute that the subject of the action is the monument. The intervenors claim an interest relating to the monum ent and its continued existence by virtue of their support of its creation, their g oal of vindicating their conservationist vision through its preservation, th eir use of the monument in pursuit of that vision, and their economic stake inits continued existence. Under the authority discussed above, we conclude the inte rvenors’ interest is sufficiently related to the subject of the action to support int ervention as of right.-14- IV Impairment of Interest Rule 24(a)(2) also requires the intervenors to demo nstrate that the disposition of this action may as a practical matte r impair or impede their ability to protect their interest. This court has pointed out that “the question of impairment is not separate from the question of exi stence of an interest.” Natural Res. Def. Council v. United States Nuclear Regulato ry Comm’n , 578 F.2d 1341, 1345 (10th Cir. 1978). Moreover, “the Rule refers to impairment ‘as a practical matter.’ Thus, the court is not limited to consequ ences of a strictly legal nature.” Id. “‘To satisfy this element of the intervention test, a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied. This burden is minimal.’” Grutter v. Bollinger , 188 F.3d 394, 399 (6th Cir. 1999) (quoting Michigan State AFL-CIO v. Miller , 103 F.3d 1240, 1247 (6th Cir. 1997)). The intervenors argue on appeal that their interestin the preservation and protection of the monument would be significantly i mpaired by an adverse decision setting aside the creation of the monument . They point out that under the land use plan in effect before the monument was established, much of the land it now encompasses was open to unrestricted off-roa d travel, and that as a result the land itself was being degraded and its wilderne ss character was deteriorating.5 Plaintiffs make the ludicrous argument that the in tervenors cannot assert

their interest would be impaired by the invalidatio n of the monument’s management plan because the lawsuit does not challe nge the management plan per se. It would appear obvious that if the Presidenti al Order creating the monument were to be held invalid and the monument were to ce ase to exist as such, its management plan would cease to exist as well. As w e discuss above, the potential invalidation of the monument and the plan under whi ch it is maintained demonstrate that the disposition of this action “may as a practical matter impair or impede” the intervenors’ ability to protect their i nterest in the monument itself. -15- The monument management plan, in which the interven ors have had input, significantly restricts off-road travel and reserve s the land from public entry. In the intervenors’ view the management plan has enhan ced the land with respect to their scientific, recreational, and aesthetic inter ests in the monument. The intervenors contend these environmental and conserv ationist interests would be impaired were the monument to lose its protected st atus and previous land use plans to be reinstated. The intervenors also state that many of them operate businesses that have benefitted from the tourism th e monument has generated, and that these economic interests would be impaired sho uld the monument to cease to exist. Plaintiffs contend the intervenors have failed to m ake the requisite showing because their allegations of impairment are speculative and unsupported. 5 Plaintiffs argue in addition that even if the monum ent management plan were set aside, pre-existing land use plans would have to be revised, providing the intervenors with an opportunity to protect their interests in those proceedings.-16-

We find plaintiffs’ arguments unpersuasive. It is undisputed that the management plan presentlyin place, which reserves the land from public entry and restricts o ff-road travel, provides greater protection for the intervenors’ interests than prio r plans. Indeed, the Utah Association of Counties brought this lawsuit expres sly because they believed creation of the monument improperly thwarted the op eration of an underground coal mine that would presumably have proceeded unde r previous plans. It is thus not speculative to conclude that the protection acc orded the intervenors’ interest in preserving the wilderness nature of the monumentland would be diminished if the land were to lose its designation as a national monument. Plaintiffs also contend the intervenors’ interests are not impaired because they would be able to participate in the formulatio n of a revised land use plan for the area should it lose its monument status. Againwe disagree. “[W]here a proposed intervenor’s interest will be prejudiced i f it does not participate in the main action, the mere availability of alternative f orums is not sufficient to justify denial of a motion to intervene.” Commodity Futures Trading Comm’n v. Heritage Capital Advisory Serv. , 736 F.2d 384, 387 (7th Cir. 1984). Moreover, the possibility of impairment is not eliminated by the intervenors’ opportunity to participate in the formulation of a revised land us e plan that, at most, would not provide the level of protection to the intervenors’ interests that the current plan-17-

offers.Finally, as the intervenors point out, this court h as held that “the stare decisis effect of the district court’s judgment is sufficie nt impairment for intervention under Rule 24(a)(2).” See Coalition , 100 F.3d at 844. The intervenors argue that a judgment in favor of plaintiffs in this case would impair the intervenors’ interest in promoting their enviro nmental protection goals by seeking presidential designation of other national monuments in the future. In light of these considerations, we conclude the i ntervenors have demonstrated that their interests may be impaired o r impeded by the disposition of this lawsuit.

V Adequacy of Representation The intervenors have shown that their motion to int ervene was timely, they claim an interest relating to the property which is the subject of the action, and as a practical matter their ability to protect that in terest may be impaired or impeded by the disposition of the action. Under Rule 24(a) (2), they are therefore entitled to intervene as of right unless that interest “is a dequately represented by existing parties.” “Although an applicant for intervention as of right bears the burden of showing inadequate representation, that burden is the ‘minimal’ one of showing-18-

that representation ‘may’ be inadequate.” Sanguine , 736 F.2d at 1419 (quoting Trbovich v. United Mine Workers , 404 U.S. 528, 538 n.10 (1972)); see also Coalition , 100 F.3d at 844. The possibility that the intere sts of the applicant and the parties may diverge “need not be great” in orde r to satisfy this minimal burden. Natural Res. Def. Council v. United States Nuclear Reg. Comm’n , 578 F.2d 1341, 1346 (10th Cir. 1978). The district court stated without analysis that the government would adequately represent the interests of the interveno rs in defending the legality of President Clinton’s designation of the monument. O n appeal, plaintiffs argue the district court was correct, pointing out that the i nterests of the government and the intervenors are identical and that the intervenors have not articulated any arguments they wish to make that the government cou ld not make. In response, the intervenors assert that under this court’s auth ority, an intervenor need only show the possibility of inadequate representation. The intervenors rely on cases from this and other circuits holding that this show ing is easily made when the party upon which the intervenor must rely is the go vernment, whose obligation is to represent not only the interest of the interveno r but the public interest generally, and who may not view that interest as co extensive with the intervenor’s particular interest. A review of the authority reveals that the interven ors’ argument has merit.-19-

In National Farm Lines v. Interstate Commerce Comm’n , 564 F.2d 381 (10th Cir. 1977), the plaintiff brought suit against a federal agency alleging that a section of the Interstate Commerce Act and regulations promulg ated under the Act were unconstitutional. Common carriers protected by the Act sought to intervene on the basis that a judgment invalidating the Act and regulations would impair the carriers’ interest by removing the Act’s protection , thereby subjecting them to highly injurious unregulated competition. In holdi ng that the applicants had shown inadequacy of representation, we pointed to authority stressing that the showing is met when the applicant for intervention has expertise the government may not have. We also looked to cases holding thatgovernment representation may not adequately represent private interests beca use the government protects the public interest. We have here also the familiar situation in which t he governmental agency is seeking to protect not only the interest of the public but also the private interest of the petitioners in int ervention, a task which is on its face impossible. The cases correct ly hold that this kind of a conflict satisfies the minimal burden of showing inadequacy of representation. Id. at 384. We followed National Farm Lines in Coalition , pointing out that in both cases the federal agency sued “must represent the p ublic interest, which may differ from” the applicant’s particular interest. Coalition , 100 F.3d at 845. Although we recognized in Coalition that a presumption of adequate-20-

representation arises when an applicant for interve ntion and an existing party have the same ultimate objective in the litigation, see id. (quoting Northwest Forest Res. Council v. Glickman , 82 F.3d 825, 838 (9th Cir. 1996)), we held this presumption rebutted by the fact that the public in terest the government is obligated to represent may differ from the would-be intervenor’s particular interest, see id. Our conclusion that government representation mig ht prove to be inadequate was also bolstered by cases from other c ircuits holding that an intervenor’s interest would not be adequately repre sented by a government entity that must represent the broader public interest. See id. (citing cases); see also Mausolf , 85 F.3d at 1302-04 (“When managing and regulating public lands, to avoid what economists call the ‘tragedy of the comm ons,’ the Government must inevitably favor certain uses over others.”); Sierra Club v. Glickman , 82 F.3d 106, 110 (5th Cir. 1996) ( per curiam) (government repre sentation of broad public interest will not necessarily coincide with would-b e intervenor’s narrower interest even though they share common ground); Conservation Law Found. v. Mosbacher , 966 F.2d 39, 44-45 (1st Cir. 1992) (“a government al entity charged by law with representing the public interest of its citizens might shirk its duty were it to advance the narrower interest of a private entity”); In re Sierra Club , 945 F.2d 776, 779-80 (4th Cir. 1991) (although woul d-be intervenor and government entity share objectives, entity not adeq uate representative due to-21-

obligation to represent interests of general public including those with conflicting views). Plaintiffs argue that National Farm Lines and Coalition are distinguishable because in those cases the interest of the governme nt and the applicants for intervention did not coincide. They assert the int erests are identical here because both the government and the intervenors have the same objective–to sustain the creation of the monument. As the above cases make clear, however, the government’s representation of the public interest generally cannot be assumed to be identical to the individual parochial interest o f a particular member of the public merely because both entities occupy the same posture in the litigation. In litigating on behalf of the general public, the gov ernment is obligated to consider a broad spectrum of views, many of which may confli ct with the particular interest of the would-be intervenor. “[E]ven the g overnment cannot always adequately represent conflicting interests at the s ame time.” Mausolf , 85 F.3d at 1303. This potential conflict exists even when the government is called upon to defend against a claim which the would-be interveno r also wishes to contest. Plaintiffs also maintain that, given the government ’s past conduct in this litigation, there is nothing to indicate it will no t continue to vigorously represent the interest of the intervenors in defending the cr eation of the monument. However, “it is not realistic to assume that the ag ency’s programs will remain-22-

static or unaffected by unanticipated policy shifts .” Kleissler v. United States
Forest Serv. , 157 F.3d 964, 974 (3d Cir. 1998). The governmenthas taken no position on the motion to intervene in this case. Its “silence on any intent to defend the [intervenors’] special interests is deaf ening.” Conservation Law Found. , 966 F.2d at 44. We conclude that under the autho rity of this and other circuits, the intervenors have met the minimal burd en of showing that their interests may not be adequately represented by the existing parties. The order denying the motion to intervene under Rul e 24(a)(2) is
VACATED and the matter is REMANDED to the district court with directions that the application to intervene as of right be gr anted.