WildEarth Guardians v. National Park Service

Filing 1018419965

[9762027] Reversed and Remanded;Terminated on the merits after oral hearing; Written, signed, published; Judges Briscoe, Tymkovich, authoring judge and Holmes. Mandate to issue.

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Case: 08-1479 Document: 01018419965 Date Filed: U n i t e d States Court 1 Appeals 05/12/2010 Page: of T e n t h Circuit FILED M a y 12, 2010 PUBLISH U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT E l i s a b e t h A. Shumaker C l e r k of Court W I L D E A R T H GUARDIANS, Plaintiff-Appellee, v. N A T I O N A L PARK SERVICE, Defendant. -------------------------------------------S A F A R I CLUB INTERNATIONAL F O U N D A T I O N , and SAFARI CLUB INTERNATIONAL, Movants-Appellants. N o . 08-1479 A P P E A L FROM THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF COLORADO ( D . C . NO. 08-cv-608-MSK-CBS) A n n a M. Seidman (Douglas S. Burdin with her on the briefs), Safari Club I n t e r n a t i o n a l , Washington, District of Columbia for Appellants. M i c h a e l Ray Harris, Assistant Professor & Director, Environmental Law Clinic, S t u r m College of Law, University of Denver, Denver, Colorado for Appellee. B e f o r e BRISCOE, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges. T Y M K O V I C H , Circuit Judge. Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 2 T h i s appeal arises from WildEarth Guardians' lawsuit challenging the N a t i o n a l Park Service's proposal to reduce the elk population in Rocky Mountain N a t i o n a l Park. Safari Club International and Safari Club International Foundation ( r e f e r r e d to together as Safari Club) are two organizations representing hunting a n d conservation interests which participated in the administrative proceedings t h a t led to the promulgation of the National Park Service's elk population ma n a g e me n t plan. Safari Club sought to intervene as of right in WildEarth's l a w s u i t as a party defendant pursuant to Federal Rule of Civil Procedure 24(a)(2), o r , in the alternative, to intervene permissively, under Federal Rule of Civil P r o c e d u r e 24(b). The district court denied Safari Club's motion to intervene and Safari Club a p p e a l e d . Because "[a]n order denying intervention is final and subject to i mme d i a t e review if it prevents the applicant from becoming a party to an action," C o a l . of Ariz./N.M. Counties for Stable Econ. Growth v. DOI, 100 F.3d 837, 839 ( 1 0 t h Cir. 1996), we have jurisdiction under 28 U.S.C. 1291. We find the district court erred in ruling on Safari Club's motion to i n t e r v e n e . Safari Club demonstrated that it has a substantial interest in the d i s t r i c t court proceedings and that its interest might be impaired as a result of the l i t i g a t i o n . Further, on the record presented, we decline to determine whether any o f the existing parties can adequately represent Safari Club's interest. -2- Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 3 A c c o r d i n g l y , we REVERSE and REMAND with instructions to consider whether t h e National Park Service can adequately represent Safari Club's interest. 1 I . Background A f t e r a lengthy administrative proceeding, the National Park Service ( s o me t i me s referred to as the NPS) established a plan to reduce the negative e f f e c t s of an oversized elk population at Rocky Mountain National Park ( s o me t i me s referred to as RMNP). In developing the Rocky Mountain National P a r k Elk and Vegetation Management Plan, the NPS considered five alternative a c t i o n plans: (1) no action; (2) immediate lethal removal; (3) gradual lethal r e mo v a l together with the use of fencing and distribution techniques; (4) fertility c o n t r o l combined with gradual lethal removal; and (5) lethal removal coupled w i t h the release of predatory, sterile gray wolves. In accordance with required administrative and environmental procedures, t h e NPS adopted the third alternative elk management plan-- combining gradual l e t h a l removal, fencing, and dispersal. This plan calls for "NPS Staff and a u t h o r i z e d agents" to lethally reduce, i.e., "cull," the elk over time. Under the p l a n , "authorized agents" can include "qualified volunteers." The plan requires t h a t all individuals participating in culling activities be certified in firearms t r a i n i n g , be specially trained in wildlife culling, and pass a proficiency test. Because we reverse the district court's decision and remand the case for f u r t h e r consideration, we need not address the district court's denial of permissive i n t e r v e n t i o n at this juncture. -31 Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 4 S a f a r i Club supports and advocates the conservation and management of w i l d l i f e , and promotes using hunting, among other things, as a conservation and ma n a g e me n t tool. The group is active nationally in efforts to conserve and ma n a g e wildlife, including the gray wolf. The organization's members enjoy r e c r e a t i o n a l activities, including hunting, in areas near RMNP. While the NPS w a s considering the alternative action plans, Safari Club submitted written c o mme n t s supportive of managing wildlife generally and at RMNP specifically, c o n t r o l l i n g the park's elk population, and using volunteers to carry out culling a c t i v i t i e s . Following the NPS's selection of the third action plan, several Safari C l u b members volunteered as "authorized agents" to participate in elk culling at RMNP. After the NPS announced which elk management plan it had chosen, W i l d E a r t h Guardians, an environmental interest organization opposed to the a d o p t e d plan, filed an action contesting the plan in district court. WildEarth c l a i me d that in formulating the plan the NPS violated the National Environmental P o l i c y Act, 42 U.S.C. 4321S4347, by not considering the introduction of p r e d a t o r y , fertile gray wolves as a means of managing RMNP's elk population. WildEarth also claimed that the plan violates the NPS Organic Act, 16 U.S.C. 1S4, and the Rocky Mountain National Park Act, 16 U.S.C. 191S195a, b e c a u s e "culling" is "hunting" and those laws prohibit hunting in the national -4- Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 5 p a r k . 2 Finally, WildEarth claimed the plan violates the Endangered Species Act, 1 6 U.S.C. 1531S1544, because it does not adequately address conservation of t h e gray wolf. In addition to seeking declaratory relief for those claims, 3 W i l d E a r t h requested that the district court compel the NPS to consider releasing f e r t i l e gray wolves as an elk management alternative, enjoin the NPS from h u n t i n g elk, and compel the NPS to take measures supporting gray-wolf c o n s e r v a t i o n at RMNP. Safari Club moved to intervene as a defendant in WildEarth's suit against t h e NPS. In its motion to intervene and supporting memorandum, Safari Club e l a b o r a t e d on its interest in supporting the NPS's elk management plan, including 2 In its complaint, WildEarth stated: I n the Organic Act, Congress prohibited hunting in national parks u n l e s s expressly granted by a park's unique enabling language. Although t h e Secretary has discretion when deciding how to affect conservation w i t h i n national parks, the Secretary cannot authorize activities in direct c o n t r a d i c t i o n to the purposes of the Act. This discretionary power includes t h e ability to destroy animal and plant life that is detrimental to the use of n a t i o n a l parks. However, the Organic Act must be read as a whole and in l i g h t of each national park's unique enabling language. Thus, if the O r g a n i c Act conflicts with an individual park's enabling act, the park's e n a b l i n g act governs. The RMNP Act expressly prohibits `all hunting, k i l l i n g , wounding, or capturing at any time of any wild bird or animal. . . .' J.A., Vol. I, at 20S21 (internal citations omitted and emphasis added). WildEarth, in its complaint, requested that the district court provide: " [ d ]e c l a r a t o r y judgment that the Park Service's failure to prohibit hunting within t h e Park boundaries is in violation of the Organic Act and the RMNP Act" and " [ d ]e c l a r a t o r y judgment that `controlled culling' is hunting." J.A., Vol. I, at 25. -53 Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 6 ( 1 ) its endorsement of sustainable use wildlife management and conservation t e c h n i q u e s , (2) its members' interests in hunting and otherwise enjoying wildlife i n and near RMNP, (3) its approval of the use of volunteers in culling activities, a n d (4) its desire to prevent gray wolves from being used to control RMNP's elk p o p u l a t i o n . Safari Club also expressed an interest in supporting qualified h u n t e r s ' ability to participate in wildlife management activities conducted on n a t i o n a l park lands generally. 4 S a f a r i Club asserted those interests would be impaired or impeded if W i l d E a r t h succeeded in its case. In particular, Safari Club noted that a decision i n favor of WildEarth would be contrary to its interests in several ways: it would ( 1 ) cause the methods selected to manage and conserve elk at RMNP, which S a f a r i Club supports, to be set aside or altered; (2) lead to the introduction of gray w o l v e s as a means of managing RMNP's elk population, which Safari Club In its brief in support of its motion to intervene, Safari Club stated that " [ W i l d E a r t h ] contends that the National Park Service violated the Organic Act a n d the Rocky Mountain National Park Act by choosing to cull the elk," J.A., V o l . I, at 32, that "WildEarth [] wrongfully argue[s] that the `cull' constitutes a ` h u n t , ' " id., that "if [WildEarth] obtains declaratory relief, federal agencies . . . c o u l d stop qualified hunters from participating in future wildlife management a c t i v i t i e s on federally administered lands," id. at 33, and that "[s]uch a result c o u l d seriously interfere with wildlife management throughout the United States a n d could deprive hunters and outdoor enthusiasts of safe and productive wildlife o r i e n t e d opportunities," id. Relatedly, in its reply brief, Safari Club stated, " [ S a f a r i Club] . . . demonstrate[s] the requisite interest since [its] ability to p a r t i c i p a t e in the management of elk [at] RMNP and [its] ability to continue to e n j o y hunting and other recreational activities in the vicinity of RMNP as well as w i t h i n and around other federally administered lands are among several interests a t risk from [WildEarth]'s litigation challenges." Id. at 110. -64 Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 7 o p p o s e s ; and (3) prevent, contrary to Safari Club's preferences, volunteers from p a r t i c i p a t i n g in culling activities at RMNP and other national parks. 5 Finally, Safari Club contended the NPS could not adequately represent it. Safari Club argued the NPS and the public do not necessarily share some of its s p e c i f i c interests, such as protecting and furthering the use and enjoyment of h u n t i n g on public lands, opposing the release of gray wolves for wildlife ma n a g e me n t purposes, and supporting the participation of volunteers in culling activities. T h e district court denied Safari Club's motion to intervene. In doing so, it i d e n t i f i e d and assessed two interests of Safari Club: (1) preserving the quality of t h e opportunities to use lands and wildlife near RMNP, and (2) maintaining the p o s s i b i l i t y that volunteers might participate in culling activities at RMNP. The d i s t r i c t court held that the former was not at significant risk of impairment, b e c a u s e a decision in WildEarth's favor would only cause the elk management i s s u e to be remanded to the National Park Service for further consideration and w o u l d not lead with certainty to a release of gray wolves. The district court f o u n d the latter too speculative, because, at that point, Safari Club's members p o s s e s s e d nothing more than an abstract hope of being selected to participate in Safari Club, in its supporting memorandum, stated: "if [WildEarth] is s u c c e s s f u l , Safari Club members will be deprived of the opportunity to participate i n sustainable use wildlife management activities such as the cull [at Rocky M o u n t a i n National Park]." J.A., Vol. I, at 42. -7- 5 Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 8 c u l l i n g activities at RMNP. Because the district court determined Safari Club did n o t set forth an interest at risk of being impaired, the district court did not c o n s i d e r whether the NPS is capable of adequately representing Safari Club's interest. II. Discussion O n appeal, Safari Club contends the district court erred in failing to credit i t s interests in support of intervention. No one disputes the motion to intervene w a s timely filed. The only challenge is to the district court's assessment of the r e q u i r e me n t s for intervention of right under Rule 24(a)(2). We review de novo t h e district court's application of Rule 24. See Coalition, 100 F.3d at 840. W e conclude Safari Club satisfies the interest and impairment requirements o f Rule 24. A . Preservation of Argument A s an initial matter, WildEarth contends Safari Club did not adequately a s s e r t its interest in defending the NPS's hunting and culling proposals before the d i s t r i c t court. "Failure to raise an issue in the district court generally constitutes w a i v e r . " Rios v. Ziglar, 398 F.3d 1201, 1209 (10th Cir. 2005); see also Lyons v. J e f f e r s o n Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993) (requiring that an i s s u e first be "presented to, considered[, and] decided by the trial court") (internal q u o t a t i o n marks omitted)). We disagree with WildEarth's contention. Reading W i l d E a r t h ' s complaint and Safari Club's motion to intervene, supporting -8- Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 9 me mo r a n d u m, and reply brief in conjunction with one another makes clear Safari C l u b sufficiently articulated all of the interests it asserts on appeal. I n its complaint, for example, WildEarth contended the enabling acts of i n d i v i d u a l national parks govern when they conflict with the Organic Act. WildEarth argued the Organic Act does not permit hunting in a national park u n l e s s the park's unique enabling language expressly allows it. WildEarth a s s e r t e d the NPS's elk management plan violates the RMNP Act, which forbids h u n t i n g . Based on those contentions, WildEarth sought declarations that " c u l l i n g " is "hunting" and that the NPS's failure to prohibit hunting at RMNP v i o l a t e d the language and logic of the Organic Act and the park's enabling legislation. Safari Club filed its motion to intervene in direct response to WildEarth's c o mp l a i n t . In its memorandum in support of its motion, Safari Club stated that, if W i l d E a r t h obtains the declaratory relief it seeks, "Safari Club members will be d e p r i v e d of the opportunity to participate in sustainable use wildlife management a c t i v i t i e s " at RMNP, J.A., Vol. I, at 42, and "federal agencies . . . could stop q u a l i f i e d hunters from participating in future wildlife management activities on f e d e r a l l y administered lands," "seriously interfer[ing] with wildlife management t h r o u g h o u t the United States and . . . depriv[ing] hunters and outdoor enthusiasts o f safe and productive wildlife oriented opportunities," id. at 33. Further, Safari -9- Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 10 C l u b asserted that WildEarth seeks the elimination of the culling aspect of the N P S ' s plan by virtue of WildEarth's interpretation of the RMNP Act. F i n a l l y , in its reply brief, Safari Club stated its interest in hunting near R M N P , as well as on or near other federal lands, could be affected by a broad d i s t r i c t court ruling: [ S a f a r i Club's] ability to participate in the management of elk [at Rocky M o u n t a i n National Park] and [its] ability to continue to enjoy hunting and o t h e r recreational activities in the vicinity of [the park] as well as within a n d around other federally administered lands are . . . at risk from [ W i l d E a r t h ]' s litigation challenges. J.A., Vol. I, at 110. 6 When considered in the context of WildEarth's complaint, the totality of S a f a r i Club's statements sufficiently identified Safari Club's interest in protecting w i l d l i f e management techniques that incorporate hunting and culling. See Stone v . First Wyo. Bank, 625 F.2d 332, 348 (10th Cir. 1980) (giving a liberal reading t o pleadings and motions submitted to the trial court and finding that the issue in q u e s t i o n had been sufficiently preserved). 6 Further, Safari Club restated its interests in its motion for reconsideration: [Safari Club] based [its] application to intervene on [its] long-standing i n t e r e s t in elk and wolf management and conservation, [its] recreational i n t e r e s t s in elk hunting in the vicinity of RMNP, [its] participation in the p r o c e s s by which the Plan had been developed and decided, and the interest o f [Safari Club] members in participating as qualified agents of the NPS in t h e cull . . . . J.A., Vol. I, at 149. -10- Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 11 H a v i n g concluded that Safari Club adequately identified its claims before t h e district court, we turn to the requirements for intervention as of right. B . Intervention as of Right B a s e d on its interest in the outcome of the WildEarth litigation, Safari Club s o u g h t to intervene as of right under Rule 24(a)(2). 1. Elements of Intervention as of Right R u l e 24(a)(2) entitles a movant to intervene as of right if: (1) the movant c l a i ms an interest relating to the property or transaction that is the subject of the a c t i o n ; (2) the disposition of the litigation may, as a practical matter, impair or i mp e d e the movant's interest; and (3) the existing parties do not adequately r e p r e s e n t the movant's interest. See Fed. R. Civ. P. 24(a)(2); Coalition, 100 F.3d a t 840. We follow "a somewhat liberal line in allowing intervention." WildEarth G u a r d i a n s v. USFS, 573 F.3d 992, 995 (10th Cir. 2009) (internal quotation marks, b r a c k e t s , and citation omitted). The factors of Rule 24(a)(2) are intended to " c a p t u r e the circumstances in which the practical effect on the prospective i n t e r v e n o r justifies its participation in the litigation," and "[t]hose factors are not r i g i d , technical requirements." San Juan County v. United States, 503 F.3d 1163, 1 1 9 5 (10th Cir. 2007) (en banc). T h e interest element is "a practical guide to disposing of lawsuits by i n v o l v i n g as many apparently concerned persons as is compatible with efficiency a n d due process." Id. at 1195 (internal quotation marks and citation omitted). -11- Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 12 T h e movant's claimed interest is measured in terms of its relationship to the p r o p e r t y or transaction that is the subject of the action, not in terms of the p a r t i c u l a r issue before the district court. See Utah Ass'n of Counties v. Clinton, 2 5 5 F.3d 1246, 1252 (10th Cir. 2001). With respect to Rule 24(a)(2), we have d e c l a r e d it "indisputable" that a prospective intervenor's environmental concern i s a legally protectable interest. San Juan, 503 F.3d at 1199 (citing Lujan v. D e f e n d e r s of Wildlife, 504 U.S. 555, 562S563 (1992) ("[T]he desire to use or o b s e r v e an animal species, even for purely [a]esthetic purposes, is undeniably a c o g n i z a b l e interest for purpose of standing.")). F o r example, in San Juan, we found the prospective intervenors had a l e g a l l y protectable interest in defending a National Park Service rule. We c o n c l u d e d their concern that the plaintiff's success could lead to environmental d a ma g e to the area in question from vehicular traffic justified party status. See 5 0 3 F.3d at 1167S70, 1199. Similarly, in Clinton, we held that the prospective i n t e r v e n o r s , who wished to intervene as defendants in a suit challenging the e s t a b l i s h me n t of a national monument, had a cognizable interest in the continued e x i s t e n c e of the monument and its restrictions on public entry. Among other t h i n g s , their interests arose from a desire to advance conservation goals by p r e s e r v i n g the undeveloped quality of the lands encompassing the monument. In c r e d i t i n g these interests, we considered "persuasive those opinions holding that o r g a n i z a t i o n s whose purpose is the protection and conservation of wildlife and its -12- Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 13 h a b i t a t have a protectable interest in litigation that threatens those goals." Clinton, 255 F.3d at 1252. In both San Juan and Clinton, the prospective i n t e r v e n o r s advocated setting aside the land at issue, participated in the g o v e r n me n t ' s decision-making process at the administrative level, and visited the c o n t e s t e d sites for aesthetic and recreational purposes. See San Juan, 503 F.3d at 1 1 9 9 ; Clinton, 255 F.3d at 1251. The second element--impairment--presents a minimal burden. See W i l d E a r t h Guardians, 573 F.3d at 995. "[A] would-be intervenor must show only t h a t impairment of its substantial legal interest is possible if intervention is d e n i e d . " Id. (internal quotation marks and citation omitted). Our cases recognize t h a t the interest of a prospective defendant-intervenor may be impaired where a d e c i s i o n in the plaintiff's favor would return the issue to the administrative d e c i s i o n - ma k i n g process, notwithstanding the prospective intervenor's ability to p a r t i c i p a t e in formulating any revised rule or plan. See Clinton, 255 F.3d at 1254. " [ T ]h e mere availability of alternative forums is not sufficient to justify denial of a motion to intervene" because "at most," participating in a new proceeding " w o u l d not provide the level of protection to the intervenors' interests that the c u r r e n t plan offers." Id. In fact, for purposes of Rule 24(a)(2), sufficient i mp a i r me n t may result even from the "stare decisis effect" of a district court's j u d g me n t . Utahns For Better Transp. v. DOT, 295 F.3d 1111, 1116 (10th Cir. 2 0 0 2 ) ; Coalition, 100 F.3d at 844. "We may consider any significant legal effect -13- Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 14 i n the applicant's interest and we are not restricted to a rigid res judicata test." Coalition, 100 F.3d at 844 (internal quotation marks, brackets, and citation o mi t t e d ) . C l i n t o n provides a useful example of the impairment element. There, the p r o s p e c t i v e intervenors argued that the land management plan associated with the n a t i o n a l monument, which they aided in developing, would be set aside if the p l a i n t i f f s succeeded in their case. See Clinton, 255 F.3d at 1253. They pointed o u t that removing the plan would open up much of the land comprising the mo n u me n t to unrestricted off-road travel, allowing the wilderness character of the l a n d to be degraded. See id. We held that such an outcome would impair their e n v i r o n me n t a l and conservationist interests. See id. Notwithstanding the p r o s p e c t i v e intervenors' ability to participate in any renewed land use decisionma k i n g process that would result if the plaintiffs won, we recognized that it was " n o t speculative to conclude that the protection accorded the [prospective] i n t e r v e n o r s ' interest in preserving the wilderness nature of the monument land w o u l d be diminished if the land were to lose its designation as a national mo n u me n t . " Id. at 1254. In Coalition, we likewise held that the impairment element was satisfied, at l e a s t in part, based on environmental concerns. In that case, the prospective i n t e r v e n o r had a cognizable interest in the protection of the Mexican Spotted Owl. See Coalition, 100 F.3d at 838S39, 844. We found that interest would be -14- Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 15 i mp a i r e d if the plaintiff was granted the relief it requested in its complaint--a d e c l a r a t i o n that the government failed to conduct a sufficient assessment of the o w l ' s condition and an injunction removing the owl from the endangered species l i s t . See id. at 844. In so concluding, we explained: The appellant could submit a new petition to [] protect the [o]wl; however, h e would, "as a practical matter," be impaired by the stare decisis effect of t h e district court's decision, not to mention the direct effect of a possible p e r ma n e n t injunction. Furthermore, the [o]wl and its habitat would not be p r o t e c t e d . . . while [the appellant] tried to lift such a permanent injunction a n d [the government] considered [his] new petition. Id. Finally, the inadequate representation element of Rule 24(a)(2) also p r e s e n t s a minimal burden. The movant must show only the possibility that r e p r e s e n t a t i o n may be inadequate. See Utahns, 295 F.3d at 1117. "The p o s s i b i l i t y that the interests of the applicant and the parties may diverge need not b e great in order to satisfy this minimal burden." Id. We have repeatedly r e c o g n i z e d that it is "on its face impossible" for a government agency to carry the t a s k of protecting the public's interests and the private interests of a prospective i n t e r v e n o r . Id.; see also WildEarth Guardians, 573 F.3d at 996; Clinton, 255 F . 3 d at 1255. Where a government agency may be placed in the position of d e f e n d i n g both public and private interests, the burden of showing inadequacy of r e p r e s e n t a t i o n is satisfied. See Utahns, 295 F.3d at 1117. -15- Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 16 W i t h this legal framework in mind, we consider whether Safari Club has s a t i s f i e d the elements of intervention as of right. 2. Safari Club May be Entitled to Intervene as of Right S a f a r i Club contends it satisfies Rule 24's elements. It argues its interest in t h e management and conservation of wildlife at Rocky Mountain National Park a n d other national parks may be impaired if WildEarth succeeds in its case. Safari Club also argues the National Park Service will not adequately represent t h a t interest. We agree, in part. F i r s t , Safari Club demonstrated a sufficient interest, for purposes of Rule 2 4 ( a ) ( 2 ) , in maintaining and furthering the use of culling at RMNP and other n a t i o n a l parks for wildlife management and conservation purposes. 7 Cf. Clinton, 2 5 5 F.3d at 1252 (concluding that organizations whose purpose is the protection a n d conservation of wildlife have a protectable interest). During the a d mi n i s t r a t i v e decision-making process, Safari Club submitted comments to the N P S demonstrating its interest in and support of the chosen plan, which utilizes In its opposition brief and at oral argument, WildEarth argued that Safari C l u b did not sufficiently articulate this interest in its motion to intervene. At the h e a r i n g it held on Safari Club's motion for reconsideration, the district court a p p e a r e d to note the same. We conclude, however, that Safari Club satisfactorily s t a t e d this interest in its intervention motion. When Safari Club's motion to i n t e r v e n e , supporting memorandum, and reply brief, see supra n. 4S5, are viewed i n combination with Safari Club's discussion of the use of culling at RMNP in the s a me documents, and the statements concerning the Organic Act and the e q u i v a l e n c e of hunting and culling in WildEarth's complaint, see supra n. 2S3, w e have no difficulty in finding that the interest was sufficiently stated. -167 Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 17 c u l l i n g as a wildlife management and conservation tool. Moreover, the record d e mo n s t r a t e s that the NPS intends to cull elk at RMNP. The plan also evidences t h e NPS's willingness to consider the use of culling at national parks other than R M N P . Safari Club's articulated interest in furthering the use of culling as a me a n s of wildlife management and conservation, which it pursued during the N P S ' s administrative proceedings, is not too speculative under our case law to s u p p o r t intervention as of right. As a final interest, Safari Club has a strong organizational interest in d e f e n d i n g and preserving the NPS's interpretation of the Organic Act and i n d i v i d u a l national park enabling statutes, including the Rocky Mountain National P a r k Act. If WildEarth were to prevail on its broad legal contentions, this case c o u l d establish a precedent that prohibits hunting on these public lands for the p u r p o s e of culling overpopulated wildlife absent specific statutory authorization. I n sum, Safari Club has sufficient cognizable interests in the WildEarth l i t i g a t i o n to satisfy the first intervention requirement. S e c o n d , Safari Club also meets the impairment element. It demonstrated t h a t its interest in maintaining and furthering the use of culling as a wildlife ma n a g e me n t and conservation tool at RMNP and other national parks might be i mp a i r e d if the district court decides in WildEarth's favor. In its complaint, WildEarth requests, among other things, declaratory j u d g me n t that "hunting" is "culling" and that, therefore, culling violates the -17- Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 18 O r g a n i c Act and the RMNP Act. WildEarth also seeks an injunction barring the N P S from culling elk at RMNP. If WildEarth is granted the relief it requests, the N P S would be prohibited from employing culling as a means of managing and c o n s e r v i n g wildlife at RMNP. Such a result would directly impair Safari Club's interest. Further, a practical effect of declaratory judgment in WildEarth's favor ma y be preventing or, at the very least, significantly discouraging the NPS from u t i l i z i n g culling for wildlife management and conservation purposes at other n a t i o n a l parks. See Coalition, 100 F.3d at 844 (stating that we "may consider any s i g n i f i c a n t legal effect in the applicant's interest;" and that, for purposes of Rule 2 4 ( a ) ( 2 ) , sufficient impairment may result from the stare decisis effect). In short, Safari Club has shown that its interest in the litigation might be i mp a i r e d if it is not allowed to intervene. Finally, Safari Club demonstrated they may satisfy Rule 24(a)(2)'s i n a d e q u a t e representation element. However, because the district court denied S a f a r i Club's motion to intervene without reaching the adequacy of representation e l e me n t , we conclude the best course is to remand the case for the district court to c o n s i d e r the issue in the first instance. The district court found that Safari Club d i d not identify an interest at risk of impairment and ended its analysis of the e l e me n t s of intervention as of right there. Rather than confront the inadequate r e p r e s e n t a t i o n issue for the first time on appeal, we will leave it to the district -18- Case: 08-1479 Document: 01018419965 Date Filed: 05/12/2010 Page: 19 c o u r t to examine initially. See AIMCO v. Nutmeg Ins. Co., 593 F.3d 1188, 1198 ( 1 0 t h Cir. 2010) ("[T]he better practice on issues raised [in] but not ruled on by t h e district court is to leave the matter to the district court in the first instance.") ( i n t e r n a l quotation marks and brackets omitted). We note that a brief from the N P S addressing the adequacy of representation may prove useful in deciding the issue. In sum, the district court erred by concluding Safari Club did not meet the i n t e r e s t and impairment elements, and by not considering whether the NPS can a d e q u a t e l y represent Safari Club's interest. III. Conclusion F o r the foregoing reasons, we REVERSE and REMAND with instructions t o consider whether the NPS is capable of adequately representing Safari Club's interest. -19-

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