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United States Court of Appeals,

Fifth Circuit.

No. 97-50102.

SAVE OUR SPRINGS ALLIANCE INCORPORATED; Mark Kirkpatrick, Dr.,

Plaintiffs-Appellees,

v.

Bruce BABBITT, Secretary of the Department of the Interior,

Defendant,

State of Texas, Movant-Appellant.

June 23, 1997.

Appeal from the United States District Court for the Western

District of Texas.

Before JOLLY, DUHÉ and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this case, the State of Texas appeals the district court's

denial of its motion to intervene in ongoing litigation between an

environmental group and the U.S. Fish and Wildlife Service

concerning the proposed listing of the Barton Springs Salamander as

an endangered species under the Endangered Species Act, 16 U.S.C.

§ 1531 et seq.

Following a previous lawsuit concerning the Salamander,

various Texas agencies and the U.S. Fish and Wildlife Service

entered into a Conservation Agreement designed to study potential

threats to the Salamander and to protect its habitat. The Fish and

Wildlife Service subsequently withdrew its proposed listing of the

Salamander. Plaintiff Save Our Springs Alliance filed suit on

October 29, 1996, against Bruce Babbitt, U.S. Secretary of the

Interior, challenging the Secretary's action in withdrawing the
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proposed listing.

As the district court specifically found, various Texas

agencies and the Texas Attorney General's office were served with

courtesy copies of the complaint. On November 18, the plaintiffs

moved to expedite briefing. The district court granted this

unopposed motion on December 12, and also granted the Secretary's

motion to limit review to the administrative record. The case

would therefore be determined solely on the basis of briefs filed

in cross-motions for summary judgment.

On January 23, 1997, one day before initial briefs were due,

the State of Texas moved to intervene, and included a proposed

answer raising various affirmative constitutional defenses that

would likely require discovery outside the administrative record.

Although Texas indicated in its motion to intervene that it would

also file a brief as amicus curiae, it never did so. Nor did Texas

file briefs as a party pending the court's decision on its motion

to intervene. On February 7, the district court denied Texas'

motion to intervene, principally on the ground that it was

untimely, and Texas now appeals.

"We review the district court's finding of timeliness for

abuse of discretion and the other requirements [of intervention] de

novo." Sierra Club v. Glickman, 82 F.3d 106, 108 (5th Cir.1996)

(citing Sierra Club v. Espy, 18 F.3d 1202, 1205 & n. 2 (5th

Cir.1994)). There are several factors that are relevant to the

determination whether an application to intervene is timely,

including: (1) the length of time the proposed intervenor knew or
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should have known of its interest in the case, (2) the extent of

the prejudice that existing parties may suffer by the proposed

intervenor's delay in moving to intervene, (3) the extent of the

prejudice that the would-be intervenor would suffer if intervention

is denied, and (4) any unusual circumstances that bear upon the

timeliness of the application. Espy, 18 F.3d at 1205.

Texas delayed nearly three months before filing its motion to

intervene, waiting until the very day before initial briefs were

due. Although the absolute measure of time elapsed is not

relevant, Espy, 18 F.3d at 1205, under the circumstances of this

case, the three months between the filing of the complaint and the

date on which opening summary judgment briefs were due is too long

a delay. Texas offers a list of reasons why it is interested in

the litigation and complains that the Secretary is not adequately

defending the Conservation Agreement. But these considerations

cannot sustain Texas' argument in view of its failure to timely

file its motion. Much more to the point here, Texas has offered no

plausible explanation for waiting to file its motion until the very

last day before initial briefs were due.

Texas argues that the timeliness of its application should be

measured from the time that Texas became aware that the Fish and

Wildlife Service would not adequately represent its views, which,

it claims, was not until after it had fully reviewed the lawsuit.

Yet the cases cited by Texas are cases in which some independent

identifiable event—such as the issuance of a preliminary

injunction—provides a reason for measuring timeliness from sometime
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other than the date upon which the would-be intervenor became aware

of the suit. See, e.g., Espy, 18 F.3d at 1205.

Texas has not identified such an independent event from which

we might measure the timeliness of its application to intervene.

In fact, Texas has not offered any reasonable explanation for its

three-month delay. Texas argues that the Fish and Wildlife Service

cannot adequately represent its interests because only Texas can

fully protect its own regulatory scheme, and because it intends to

challenge the constitutionality of the Endangered Species Act. This

criticism of the Fish and Wildlife Service's ability to represent

Texas' interests may be accurate, but it does nothing to explain

the delay. The facts that Texas itself is most knowledgeable about

its own regulatory scheme and that the federal government is

unlikely to support a constitutional challenge to the Endangered

Species Act are not recent developments.

Texas cannot claim that it was surprised that the Secretary's

withdrawal of the proposed listing would be challenged as a

justification for its less than timely response. For several years

now, Save Our Springs Alliance has pursued litigation designed to

force the Secretary to list the Salamander as endangered. That

Save Our Springs Alliance would attempt to challenge the

Secretary's reliance upon the Conservation Agreement was certainly

predictable. Furthermore, Texas' involvement in the prior

litigation left it fully aware of the facts and legal issues

concerning the listing of the Salamander. Texas cannot claim that

it required some three months to analyze the basis of the lawsuit
 

1Texas' pending motion to stay further proceedings in the

district court, which we originally determined to carry with the

case, is now DENIED. 

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so that it could determine whether to intervene.

Texas essentially argues that it did not realize that the

Secretary would fail to assert and defend Texas' interests to the

same degree as Texas itself would, until after Texas had perused

the complaint for some three months. In view of the long,

politically charged and contentious history of this litigation, we

find Texas' attempts to justify its delay unpersuasive.

Accordingly, we conclude that the district court did not abuse its

discretion when it denied Texas' motion to intervene as untimely,

and the district court's judgment is therefore

AFFIRMED.1