ELR Citation: ELR 20163
No(s). 84-1018 (7th Cir. Feb 22, 1985)

The court holds that an environmental group with an interest in preserving land subject to a condemnation action under the Indiana Dunes National Lakeshore Act may not intervene as of right under Rule 24(a) of the Federal Rules of Civil Procedure (FRCP) in the condemnation proceeding. The court rules that appellant lacks the "direct, significant, legally protectable interest in the property" necessary to justify intervention. Appellant's interest cannot be legally protectable since an eminent domain proceeding concerns only two rights: that of the sovereign, which Congress delegated to the Department of the Interior (DOI), and that of the landowner. Appellant has no ownership interest in the land and cannot assert the prerogatives of the sovereign. The court rejects appellant's argument that since its interest is sufficient to confer standing to challenge DOI's performance of its mandate to acquire the land, it is qualified to intervene, ruling that FRCP 24(a) imposes a stricter standard. The court also rules that appellant's environmental interest in the subject of the litigation is not direct and substantial, affirming the district court's denial of intervention as of right. The court then affirms the denial of permissive intervention under FRCP 24(b), finding no abuse of discretion. The court concludes that it has not deprived appellant of all opportunity to protect its interests; it may pursue a mandamus action, which it in fact has brought.

A dissent would grant intervention as of right, arguing that the requirements for intervention are more liberal than those for standing and that denial would frustrate the intent of Congress, because DOI has been dilatory in pursuing condemnation and has collaborated with the landowner.

Counsel for Appellants
Edward W. Osann Jr.
Leydig, Voit, Osann, Mayer & Holt
Suite 4600, One IBM Plaza, Chicago IL 60611
(312) 822-9666

Counsel for Appellee
Andrew Baker, Ass't U.S. Attorney
312 Federal Bldg., 507 State St., Hammond IN 46320
(219) 932-5500

Before BAUER, WOOD, and CUDAHY, Circuit Judges.