United States Court of Appeals
                       For the First Circuit
                       ____________________
No. 01-1770


                      STATE OF MAINE, ET AL.,

                      Plaintiffs, Appellees,

                                v.

  DIRECTOR, UNITED STATES FISH AND WILDLIFE SERVICE, ET AL.,

                            Defendants,

                  DEFENDERS OF WILDLIFE, ET AL.,

                       Movants, Appellants.
                       ____________________

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                     FOR THE DISTRICT OF MAINE

              [Hon. Gene Carter, U.S. District Judge]

                       ____________________

                              Before

                       Boudin, Chief Judge,
                  Gibson, Senior Circuit Judge,*
                    and Lynch, Circuit Judge.

                       ____________________


     Howard M. Crystal with whom Eric R. Glitzenstein and Meyer and
Glitzenstein were on brief for appellants.




    *    Of the Eighth Circuit, sitting by designation.
     Catherine R. Connors with whom Peter W. Culley and Pierce
Atwood were on brief for appellees.

                     ____________________

                        August 24, 2001
                     ____________________




                             -2-
          LYNCH, Circuit 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, 

, 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


                                 -3-
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.

          With a caveat, we affirm the order as within the trial

court's discretion. In doing so, we decline to adopt a per se rule,

urged by Defenders, that the "inadequacy of representation" test of

Fed. R. Civ. P. 24(a)(2) is automatically met where the litigation

challenges governmental action which the government defends and the

proposed intervenor had earlier sued the government trying to bring

about a similar action. Rather, the "inadequacy" test must be looked

at in context of the facts of the specific case. That context leads to

the caveat: should, in the course of this litigation, the trial court

conclude that the government appears not to represent adequately the

interest of Defenders, then it should reconsider afresh, on

application, the matter of intervention.

                                  I.

          Legend has it that salmon were once so plentiful in the great

rivers of Maine that workers along the Kennebec River negotiated as a

term of employment that they would not be fed salmon for breakfast,

lunch, and dinner. W.H. Bunting, A Day's Work (2000). In the year

2000, by contrast, very few wild adult salmon returned to the seven


                                 -4-
Maine Rivers at issue in this case (the Dennys, East Machias, Machias,

Pleasant, Narraguagus, Ducktrap, and Sheepscot Rivers). Me. Atl.

Salmon     Comm'n,     2000      Trap     Catch     Statistics,      at

http://www.state.me.us/asa/2000catchstats.html (last modified Nov. 3,

2000). This is significant because the Atlantic Salmon spawns in

freshwater rivers. Young salmon live in those rivers for one to three

years before they undergo changes which enable them to live in

saltwater.   The salmon then migrate to the Atlantic Ocean.          In

reproducing, they return to the streams where they were born, where the

female salmon delivers the eggs.

           Concerned about the decline in salmon population, in 1993 one

of the conservation groups petitioned the Services to list the salmon

as an "endangered" species under the Endangered Species Act ("ESA").

See 16 U.S.C. § 1540(g)(2)(C) (requiring written notice); 65 Fed. Reg.

69,459 at 69,462 (2000) (providing a history of previous federal action

concerning the salmon).

           "Endangered species" is a legal term of art that signifies

"any species which is in danger of extinction throughout all or a

significant portion of its range."       16 U.S.C. § 1532(6).     It is

contrasted with "threatened species," which signifies "any species

which is likely to become an endangered species within the foreseeable

future."   

   The ESA requires the Secretary of the

Interior to "determine whether any species is an endangered species or


                                  -5-
a threatened species because of any of the following factors: (A) the

present or threatened destruction, modification, or curtailment of its

habitat or range; (B) overutilization for commercial, recreational,

scientific, or educational purposes; (C) disease or predation; (D) the

inadequacy of existing regulatory mechanisms; or (E) other natural or

manmade factors affecting its continued existence." 

The Secretary must classify species as endangered or threatened "solely

on the basis of the best scientific and commercial data available to

him after conducting a review of the status of the species and after

taking into account those efforts, if any, being made by any State . .

. to protect such species."      

          The purpose of such classification is to conserve the

endangered or threatened species. See 

But there are

differences between the two classifications. While the ESA requires

the Secretary to issue regulations to provide for the conservation of

threatened species, 

it also prohibits the import,

export, or taking of endangered species, 

When making

either the "threatened" or "endangered" determination, the Secretary

must take state efforts to protect the species into account. 

If the Secretary enters into a cooperative agreement

with a state to protect a threatened species, regulations to protect

that species, with the exception of regulations prohibiting the taking

of that species, apply only to the extent that the state has adopted


                                 -6-
them.    

           This legislative framework sets the stage for the regulatory

history, which is essential to understanding Defenders' argument.

                                 II.

           In 1994, in response to the 1993 petition to list the

Atlantic Salmon under the ESA, the Services published a notice in the

Federal Register indicating that such a listing was potentially

warranted. 59 Fed. Reg. 3067 (1994). In 1995, the Services concluded

that the requested listing was not warranted because the salmon as they

had been described in the earlier petition did not meet the ESA's

definition of a species. 60 Fed. Reg. 14,410 (1995).1 In this same

notice, the Services concluded that the Atlantic Salmon in seven Maine

rivers did meet the ESA's criteria for a species because they were

found to be evolutionarily significant and reproductively isolated from

other populations belonging to the same species.        

           In 1995, the Services published a proposed rule listing the

Gulf of Maine Distinct Population Segment ("DPS") of the Atlantic

Salmon as threatened under the ESA. 60 Fed. Reg. 50,530 (1995). But

in 1997, the Services withdrew the proposed rule because of scientific

data bearing on the health of the DPS and ongoing and planned actions

     1    The 1993 petition requested the Services to list the
naturally spawning anadromous Atlantic Salmon throughout its known
historic range in the United States. The Services "determined that
available biological evidence" did not support such a listing. 60 Fed.
Reg. at 14,412.

                                 -7-
to protect the Atlantic Salmon, including federal conservation efforts

and the State of Maine's development of the "Atlantic Salmon

Conservation Plan for Seven Maine Rivers." 62 Fed. Reg. 66,325 at

66,332-37 (1997).

          Maine's Conservation Plan addresses both ongoing and proposed

actions to reduce threats to the Atlantic Salmon. 

"The

stated intent of the Conservation Plan is to minimize human impacts on

the Atlantic salmon and restore the species . . . ." 

Plan identifies five categories of threats to the salmon: agriculture,

aquaculture, forestry, recreational fishing, and other natural and

human related threats. 

For each category of threat,

the Plan describes ongoing and planned future actions to protect the

salmon.   

whether to classify a species as threatened or

endangered under the ESA, the Secretary must consider the status of the

species after accounting for any state efforts to protect the species.

16 U.S.C. § 1533(b)(1)(A).     After doing so, the Services in 1997

concluded that ongoing actions had "substantially reduced threats to

the species" and that the DPS was "not likely to become endangered in

the foreseeable future" and so listing was "not warranted" at the time.

62 Fed. Reg. 66,325 at 66,337.

          In 1999, the proposed intervenors filed suit in the U.S.

District Court for the District of Columbia, challenging the Services'


                                 -8-
1997 withdrawal of the proposed rule. While the D.C. litigation was

underway, the Services in November 1999 proposed a new rule that listed

the Gulf of Maine Salmon as endangered, 64 Fed. Reg. 62,627 (1999), not

merely threatened. Once a proposed listing rule is promulgated, the

Services ordinarily have one year to make a final decision. 16 U.S.C.

§ 1533(b)(6)(A)(i).

          On June 14, 2000, the parties in the D.C. litigation entered

into a court-endorsed stipulation agreeing to stay that litigation

pending the Services' decision to promulgate or withdraw the proposed

endangered species rule by November 17, 2000.        In entering the

stipulation, the Services were modifying their unilateral ability to

extend the review process by six months, see 16 U.S.C. § 1533(b)(6)(B).

The stipulation did provide that a party could ask the court to modify

the terms of the agreement. Eventually, the D.C. litigation concluded

and judgment entered. The Services complied with the stipulation by

deciding within the stipulated time frame of one year.

          The Services issued a final rule listing the Gulf of Maine

Atlantic Salmon as an endangered species. 65 Fed. Reg. 69,459 (2000)

(to be codified at 50 C.F.R. pts. 17 and 224). In their justification

for listing the Atlantic Salmon as endangered, the Services considered,

among other factors, the low number of returning adult salmon, 65 Fed.

Reg. 69,459 at 69,461, 69,479, the escalating threat of disease, 

and threats to the salmon from existing aquaculture


                                 -9-
practices, 

          The State of Maine, the Maine State Chamber of Commerce, and

various Maine businesses and business associations challenged the

regulation. They alleged, pursuant to the Administrative Procedure

Act, that the Services' designation of the Maine Atlantic Salmon as

endangered was arbitrary and capricious and should therefore be set

aside. See 5 U.S.C. § 706(2)(A) (1994). Their complaint included

allegations that the Services (1) failed to base their listing decision

on the best available data; (2) ignored Maine's Plan to protect and

restore the salmon; (3) unlawfully agreed to restrict their own ability

to extend the statutory deadline for regulating; and (4) acted

inconsistently with their prior decision not to list the salmon as

threatened or endangered.

                                 III.

          We start with Defenders' challenge to the district court's

denial of their motion for intervention of right. Intervention of

right, in the absence of a federal statute granting intervention, is

governed by Fed. R. Civ. P. 24(a)(2), which states:

          Upon timely application anyone shall be permitted to
          intervene in an action: . . . (2) when the applicant claims
          an interest relating to the property or transaction which is
          the subject of the action and the applicant is so situated
          that the disposition of the action may as a practical matter
          impair or impede the applicant's ability to protect that
          interest, unless the applicant's interest is adequately
          represented by existing parties.



                                 -10-
This suit largely turns2 on the clause "unless the applicant's interest

is adequately represented by existing parties."

          The appellate standard of review in this Circuit is that

"[w]e will reverse the denial of a motion to intervene as of right 'if

the court fails to apply the general standard provided by the text of

Rule 24(a)(2), or if the court reaches a decision that so fails to

comport with the standard as to indicate an abuse of discretion.'"

Public Serv. Co. of N.H. v. Patch, 

, 204 (1st Cir. 1998)

(quoting International Paper Co. v. Town of Jay, 

, 344 (1st

Cir. 1989)). As we have said, "'abuse of discretion' . . . may be a

misleading phrase. Decisions on abstract issues of law are always

reviewed de novo; and the extent of deference on 'law application'

issues tends to vary with the circumstances." Cotter v. Mass. Ass'n of

Minority Law Enforcement Officers, 

, 34 (1st Cir. 2000),

cert. denied, 

(2001).      "Despite its nomenclature,

intervention 'as of right' usually turns on judgment calls and fact

assessments that a reviewing court is unlikely to disturb except for

clear mistakes. . . . [I]n practice, the district court enjoys a

reasonable measure of latitude . . . ."        Daggett v. Comm'n on



     2    The district court assumed that Defenders' asserted interest
satisfied Rule 24(a)(2)'s "interest relating to the property or
transaction which is the subject of the action" requirement, and held
that the disposition of the case may impede Defenders' ability to
protect that interest. The business interests' protests need not be
addressed. Our decision focuses on the "inadequacy" point.

                                 -11-
Governmental Ethics and Election Practices, 

, 113 (1st Cir.

1999).3

          Some burden of showing inadequacy is placed on the proposed

intervenor. See 

(not deciding whether burden is one of

production or persuasion). The general alignment of interest of the

Services and Defenders in upholding the designation is self-evident.

This case is not an instance of the government having to make a

regulatory choice which may be adverse to the proposed intervenors; the

government has made the choice to designate the species as endangered,

and the result is what the proposed intervenors wanted. There is no

inadequacy immediately apparent in such a situation.

          Defenders make two arguments as to intervention of right,

only one of which has any substance. The primary argument is that the

Services, formerly Defenders' antagonists, cannot be trusted to defend

fully the endangered species designation because they will not make an

argument which Defenders would make. The argument the Services are

unlikely to make is that the Services should have protected the

Atlantic Salmon earlier, that they were wrong when they failed to do



     3     Other circuits, but not this one, apparently review de novo
most issues of denial to intervene. E.g., Mausolf v. Babbitt, 

, 1302 (8th Cir. 1996) (reviewing de novo); Coalition of Ariz./N.M.
Counties for Stable Econ. Growth v. Dep't of the Interior, 

, 840 (10th Cir. 1996) (reviewing de novo save for timeliness
issue); Idaho Farm Bureau Fed'n v. Babbitt, 

, 1397 (9th
Cir. 1995) (same); but see In re Sierra Club, 

, 779 (4th
Cir. 1991) (abuse of discretion review).

                                 -12-
so, particularly in deferring to Maine's State Plan in 1997, and that

the 2000 designation corrected an earlier mistake. Indeed, the issue

on which Defenders focus is in the case as a result of plaintiffs'

pleading.    Plaintiffs' complaints claim that the change in the

government's position between 1997 and 2000 is evidence of the

arbitrariness of the Services' 2000 designation. More specifically,

Defenders say that the argument they would make is different in kind

from the other arguments because it is an argument under step one of

Chevron that as a matter of law, the Services could not in 1997 have

deferred to the Maine Conservation Plan. See Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 

, 842-43 (1984).

That is because, in their view, that Plan was not an "existing"

regulatory mechanism under 16 U.S.C. § 1533(a)(1)(D).

            The Services, having not opposed intervention below, have not

appeared in this appeal, but we assume that they are not likely to

confess any error as to the 1997 withdrawal of the "threatened" species

designation. Rather, they will likely say that the sum of information

available to them justified the 2000 designation.

            Defenders argue that the Supreme Court has said that

applicants for intervention need only make a "minimal" showing that

representation "may be" inadequate. Trbovich v. United Mine Workers,

, 538 n.10 (1972). From this Defenders make a stab at an

argument that the district court made an error of law, reviewed de


                                  -13-
novo, by holding them to the test of demonstrating that the Services

"will fail to adequately protect their claimed interest." Norton, 

at *6. "Will fail," they say, is a harsher standard than

"may be inadequate." This argument, which relies on a single phrase

plucked out of a lengthy opinion, is not a fair reading of what the

district court did. The court applied Trbovich and this Circuit's law

and there is no serious argument that the court misapprehended the

legal standard in its careful analysis. In addition, this case is

meaningfully different from Trbovich. In Trbovich, the Court's doubts

about the adequacy of the government's representation stemmed from the

Labor Secretary's statutory duty to represent the "two distinct

interests" of the individual union members and the general 

. Here there is no statutorily imposed conflict and the

Services' interests are closely aligned with Defenders' interests.

          This case presents a recurring situation: a group with

recognized interests wishes to intervene and defend an action of the

government which the government is itself defending. Trbovich is such

a case, as are several of our decisions in the area. E.g., Cotter, 

(minority police officers and Massachusetts Association of

Minority Law Enforcement Officers sought to intervene to defend police

department's promotion of minority officers); Mass. Food Ass'n v. Mass.

Alcoholic Beverages Control Comm'n, 

(1st Cir. 1999) (trade

associations sought to intervene to defend Massachusetts liquor


                                 -14-
regulation), cert. denied, 

(2000); Daggett, 

(parties intending to run for office sought to intervene to defend

Maine Clean Election Act); Patch, 

(industry and consumer

groups sought to intervene to defend New Hampshire electric utility

restructuring plan); United Nuclear Corp. v. Cannon, 

(1st

Cir. 1982) (Conservation Law Foundation sought to intervene to defend

Rhode Island nuclear power regulation).

          Generally, our decisions have proceeded on the assumption,

subject to evidence to the contrary, that the government will

adequately defend its actions, at least where its interests appear to

be aligned with those of the proposed intervenor. E.g., Mass. Food

.     Indeed, our cases use the language of

"presumption."     E.g., 

.

Although the bar is raised higher for proposed intervenors in this

situation, there is danger in a mechanistic application of such

language. "Presumption" means no more in this context than calling for

an adequate explanation as to why what is assumed -- here, adequate

representation -- is not so. See Fed. R. Evid. 301; 2 McCormick on

Evidence § 344 at 445-46 (John W. Strong et al. eds., 5th ed. 1999).

The facts of these cases vary greatly and whether the proposed

intervenors' explanation of inadequacy suffices must be determined "in

keeping with a commonsense view of the overall litigation." 

.

                                -15-
          Here, Defenders have offered an explanation and the question

is whether the district court abused its discretion in concluding that

the explanation did not presently suffice.        As the case is now

configured, we cannot find abuse of discretion. At bottom Defenders

show one argument which they wish to present and (we assume) the

government does not. The district court has said, through its grant of

amicus-plus status, that it will hear the arguments Defenders wish to

present. At oral argument before our Court, the plaintiff business

interests have said they will not object to Defenders presenting

arguments on the basis that they are not intervenors (and will respond

to the arguments on the merits).     And our cases have said that a

difference in tactics as to presenting a legal argument does not

necessarily an inadequacy make.      E.g., 

.

          The argument Defenders wish to advance may be thought of as

a supplement to the defendants' main argument in the case. The main

argument, under the APA, concerns whether the 2000 designation is

"arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law." 5 U.S.C. § 706(2)(A). Whether the Services

should have earlier so designated the salmon may be a building block in

an argument, but is hardly a necessary one to the defense. Defenders'

additional argument is better thought of as a rejoinder to plaintiffs'

argument that the Services' different result in 2000 than in 1997 is

evidence that the 2000 decision was arbitrary. There are several


                                 -16-
obvious, more direct arguments for the government to make in response

in which the Services and Defenders have a common interest, and which

do not depend on the alternate argument.

          Defenders seek to wrap themselves in decisions of this Court

reversing district court decisions denying intervention. See Cotter,

; Conservation Law Found. v. Mosbacher, 

(1st

Cir. 1992). But in each of those cases the intervenors had direct

private interests (in 

, the jobs and

promotions available to black police officers and in Conservation Law

, commercial fishing interests) which the

government had and could have no interest in protecting. Further, in

Conservation Law Foundation, the government did not answer or defend

the case but simply agreed to a consent decree that imposed additional

burdens on and was unacceptable to intervenors. 

are a far cry from this case, which involves no dissimilar interests,

but only a tactical disagreement.       It is difficult to analyze

"inadequacy" without looking at the strength of the interests the

would-be intervenors present and the tests of inadequacy may vary with

the strength of the interests. 

, 113-14.

These proposed intervenors, like those in Daggett, are more in the

middle of the range as to strength of interests, and, as in Daggett, an

appellate court is hard pressed to reverse a district court's decision,

either way it goes.

                                 -17-
          Given plaintiffs' emphasis on the Services' supposed "change"

of position, we might view this case differently if the argument

Defenders wish to present depended on introduction of evidence that the

Services would refuse to present.4      But review of federal agency

administrative actions is usually confined to the record before the

agency. See SEC v. Chenery Corp., 

, 87-88 (1943). No one

has suggested that the record of agency action will not permit the

argument to be made that Defenders wish to pursue. And there is no

suggestion the case requires presentation of evidence only available

through Defenders' participation as intervenors.

          This leaves the argument that because of the prior

litigation, we should question the government's zeal in adequately

defending the designation.     The Ninth and the Tenth Circuit have

considered this, among other factors, in finding inadequacy in such

circumstances. Idaho Farm Bureau Fed'n v. Babbitt, 

, 1398

(9th Cir. 1995); Coalition of Ariz./N.M. Counties for Stable Econ.

Growth v. Dep't of the Interior, 

, 845-46 (10th Cir. 1996).

Our view is that the former adversary relationship between the

government and proposed intervenors may raise questions about adequacy,

but does not alone answer the questions.         An earlier adverse



     4    Plaintiff business interests informed the district court they
wish to discover and introduce evidence outside of the record. The
United States has taken the position review is restricted to the
record. We take no position on the matter.

                                 -18-
relationship with the government does not automatically make for a

present adverse relationship.

          Here, the Services did not designate the Atlantic Salmon as

endangered under litigation compulsion to reach that result, but rather

of their own accord.    Further, the Services' endangered species

designation goes beyond what Defenders sought in the earlier

litigation. After all, Defenders' suit challenged the 1997 withdrawal

of the designation of the Atlantic Salmon as "threatened," a

designation which provides less protection. The articulated reasoning

supporting the Services' 2000 designation cites to new studies and

information not available at the time of the earlier litigation. This

fact distinguishes the subject matter of this litigation from the

earlier case.   The prior litigation was not marked by the sort of

conduct from the government that would evidence bad faith.         Cf.

Coalition of 

(intransigence of government

in prior litigation resolved only after contempt citation); 

(reversing denial of intervention where inadequacy not

based on "nebulous and paranoid 'distrust of government,'" but on a

"well-documented history" of government failure to enforce regulations;

government inevitably has to choose among competing interests and

interests may be adverse to those of proposed intervenor); In re Sierra

Club, 

, 780 (4th Cir. 1991) (reversing denial of

intervention where interests of government and intervenors diverge at


                                 -19-
a number of significant points, including remedy). In another case

involving different facts, a prior adversary relationship might

suffice.     Here it does not and there was no abuse of discretion.

            The second argument5 made by Defenders is that they must be

allowed to intervene to protect what they won in their litigation

against the government in the District of Columbia. The main purpose

of the argument seems to be to reinforce the antagonism point discussed

above.     On its own terms the argument is without merit.       As the

district judge correctly and succinctly concluded, all that Defenders

won was a stipulation that the Services would decide what to do on

listing the Atlantic Salmon by a particular date. That bargain was

kept, the decision was made, and there is no risk to that completed

bargain in this litigation.6

            As to permissive intervention, appellate review is even more

restrictive. 

. The district court denied

intervention because it felt intervention would delay and complicate

matters.    This was a judgment call for the court.     It applied the


     5     In a footnote, Defenders argue that the change of
administration also makes the Services' representation inadequate. The
district court correctly noted that Defenders have not presented "any
evidence" on inadequacy resulting from the new administration. Norton,

at *6.

     6    Plaintiff business interests also claim that the stipulation
as to timing forced USFWS into a precipitous and ill-considered
decision. There appears to be a perfect alignment of interests between
USFWS and Defenders in denying this.

                                  -20-
appropriate standards and we cannot say it was wrong.

          This litigation is at its early stages. Should it appear to

the district court from some event that the government may not be

adequately representing the interest, advanced by Defenders, that the

Atlantic Salmon remain listed as an endangered species, the court

should revisit the matter of intervention. See Mass. Food 

("[I]f the [government] refused to appeal from a defeat, a

would-be intervenor could then seek to intervene."); cf. Coalition of

(intervention allowed after government had

refused to take procedural steps which would have helped its case).

          Affirmed.    No costs are awarded.




                                 -21-