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State v. Director, United States Fish and Wildlife Service

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Gene Carter, U.S. District Judge]

In November, 2000 the National Marine Fisheries Service and the U.S. Fish and Wildlife Service (collectively, “the Services”) issued a final decision designating Atlantic Salmon in an area comprised of seven Maine rivers to be an endangered species under the Endangered Species Act. 16 U.S.C. �� 1531-1544 (1994 & Supp. IV 1998). Several weeks later, the State of Maine and business group plaintiffs sued to have the decision set aside. The United States appeared to defend the Services. Several conservation groups, Defenders of Wildlife, Biodiversity Foundation, Conservation Action Project, Forest Ecology Network, and Coastal Waters Project (collectively, “Defenders”), sought to intervene also attempting to defend the designation of the Atlantic Salmon as an endangered species. Defenders’ chief argument was that the Services had recently been their adversaries in earlier litigation, which Defenders had brought to force the Services to protect the salmon, and this meant the United States did not and could not adequately represent the conservation groups’ interests. No party opposed the intervention.

The district court nonetheless denied the intervention, but did say it would allow Defenders to participate in the litigation on an amicus-plus status. Maine v. Norton, No. CIV 00-250-B-C, 2001 WL 360991, at *7 (D. Me. Apr. 11, 2001). As amicus-plus, Defenders have the right to submit briefs (including arguments not presented by the government), a limited right to call and cross-examine witnesses, and a right to receive notice and service of all documents and events as if they were parties in the case. Defenders appealed from the denial of intervention. The plaintiff business interests appeared to defend the district court’s order as within its discretion. The State of Maine has not taken a position on the appeal.

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