Texas v. Center for Bio Diversity
CourtCourt of Appeals for the Fifth Circuit
Date FiledNovember 6, 2026
Docket25-51058
StatusUnpublished
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Full Opinion
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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 25-51058 November 6, 2026
____________
Thomas B. Plunkett, III
Clerk
State of Texas,
Plaintiff—Appellee,
versus
Center for Biological Diversity,
Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:24-CV-233
______________________________
Before Smith, Graves, and Ho, Circuit Judges.
Per Curiam: *
On May 20, 2024, the U.S. Fish and Wildlife Service published a final
rule listing the dunes sagebrush lizard as endangered under the Endangered
Species Act (ESA). 89 Fed. Reg. 43,748. Shortly thereafter, Texas filed suit
to overturn the listing decision, arguing that it violated the Service’s policies,
rules, and the ESA.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 25-51058
In March 2025, following the change in presidential administration,
the Center for Biological Diversity (“the Center”) moved to intervene under
Federal Rule of Civil Procedure 24(a) to help defend the listing decision. But
the district court denied intervention, reasoning that the government
defendants adequately represented the Center’s interests.
While the Center appealed that order, a panel of this Court considered
an identical issue in State of Texas v. U.S. Department of Interior, 2026 WL
2672757 (5th Cir. Sep. 11, 2026). There, Texas sought to overturn the
Service’s decision to list the lesser prairie-chicken. And there too, the Center
sought intervention to defend the listing—which the district court denied.
The panel reversed the district court and granted intervention. That decision
governs our consideration of this case. Subsequently, we conclude that the
district court erred in denying the Center’s motion to intervene.
I.
We review de novo the denial of a motion to intervene of right. See
Field v. Anadarko Petrol. Corp., 35 F.4th 1013, 1017 (5th Cir. 2022). To obtain
intervention of right, an intervenor must show that “(1) its application is
timely; (2) it has an interest relating to the property or transaction which is
the subject of the action; (3) it is so situated that the disposition of the action
may, as a practical matter, impair or impede its ability to protect that interest;
and (4) its interest is inadequately represented by the existing parties to the
suit.” State of Texas, 2026 WL 2672757 at *5 (cleaned up). 1
Here, the district court only considered the fourth element—
inadequate representation. It found that the Center failed to prove
inadequate representation by the government defendants. And because
_____________________
1
The Center also sought permissive intervention in the district court under Rule
24(b) but does not renew that claim on appeal.
2
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intervention requires success on each of its four requirements, the district
court declined to reach the other elements.
A.
The burden for showing inadequate representation is typically
“minimal.” Edwards v. City of Houston, 78 F.3d 983, 1005 (5th Cir. 1996) (en
banc). But “it cannot be treated as so minimal as to write the requirement
completely out of the rule.” Id. (quoting Cajun Elec. Power Coop., Inc. v. Gulf
States Utilities, Inc., 940 F.2d 117, 120 (5th Cir. 1991)). Thus, our Court has
created two presumptions of adequate representation.
First, we presume adequate representation “when the intervenor has
the same ultimate objective as a party to the lawsuit.” State of Texas, 2026
WL 2672757, at *9 (quoting Texas v. United States, 805 F.3d 653, 661 (5th Cir.
2015)). Second, we presume that “a governmental body or officer charged
by law with representing the interests of a movant” adequately represents
those interests. Id. (quotation omitted).
To overcome the first presumption, the putative intervenor must
show “an adversity of interest, collusion, or nonfeasance on the part of the
existing party.” Id. (quoting La Union del Pueblo Entero v. Abbott, 29 F.4th
299, 308 (5th Cir. 2015)). To overcome the second, the intervenor must
show that “the intervenor’s interest is in fact different from that of the
governmental party and that the interest will not be represented by the
existing governmental party.” Id. (quotation omitted).
The district court found that the first presumption applied because,
like the Government, the Center sought to “uphold the Final Rule and
maintain the dunes sagebrush lizard’s endangered status.” It said that
President Trump’s policy statements about promoting American energy
through reconsidering species listings amount to nothing beyond a “mere
possibility of divergent interests at some point in the future.” And it
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emphasized that the Center failed to identify specific conduct showing
inadequate representation.
But in light of State of Texas, the district court overstates the Center’s
burden for overcoming the presumption of adequate representation. And it
understates the divergence between the Center’s interest and that of the
Government.
“Adversity of interest can be established simply by showing that an
interventor’s interests diverge from the putative representative’s interests in
a matter germane to the case.” State of Texas, 2026 WL 2672757 at *9
(cleaned up). And “[t]o show that their interest is in fact different from [that]
of the Government and that the interest will not be represented absent their
intervention, [an intervenor] need only point to specific conduct showing
that the party at issue inadequately represents their [interest],
notwithstanding that it shares an ultimate objective.” Id. (cleaned up).
In State of Texas, the intervenors pointed to “announced changes in
agency priorities” and “the Government’s efforts to vacate the Listing Rule
at issue.” Id. These facts showed more than a “mere possibility of divergent
interests” between the intervenors and the Government. Rather, they show
disagreement on “the core question of whether the Listing Rule’s
protections . . . are lawful at all.” Id. at *10.
So too here. The Center points to changes in agency priorities and the
Government’s abandonment of similarly situated ESA listings in the State of
Texas litigation and the Central Texas mussels litigation currently pending in
the Northern District of Texas. And as further evidence of divergent
interests, the Center points to the Government’s decision to settle and vacate
the listing at issue here. In short, the Center and the Government disagree
about whether the Lizard’s listing is lawful at all—the core issue in this case.
Thus, the Center has rebutted the presumption of adequate representation.
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B.
The Center also satisfies the three other elements of the intervention
test.
First, as the district court observed, timeliness is not an issue here.
The Center’s motion came early in the litigation, before the deadline for the
addition of new parties to the case and before the filing of the administrative
record. Nor does Texas dispute timeliness.
Second, the Center has an interest in the action. It worked for years
to secure ESA protection for the Lizard and filed its listing petition. The
district court assumed without deciding that the Center had an interest in the
litigation, and Texas does not object.
Third, the disposition of this action may impede the Center’s ability
to protect its interest in preserving the listing decision. An adverse result in
the underlying case may vacate, remand or otherwise weaken the listing
rule—the very thing the Center seeks to protect in this litigation. And again,
Texas does not contest that Center’s interest may be harmed.
As a result, the Center satisfies the requirements for intervention of
right. The district court’s denial of the Center’s motion to intervene is
reversed. The case is remanded to the district court for proceedings
consistent with this opinion.
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