Full Opinion

Case: 25-51058 Document: 67-1 Page: 1 Date Filed: 11/06/2026 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. Case: 25-51058 Document: 67-1 Page: 2 Date Filed: 11/06/2026 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 Case: 25-51058 Document: 67-1 Page: 3 Date Filed: 11/06/2026 No. 25-51058 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 3 Case: 25-51058 Document: 67-1 Page: 4 Date Filed: 11/06/2026 No. 25-51058 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. 4 Case: 25-51058 Document: 67-1 Page: 5 Date Filed: 11/06/2026 No. 25-51058 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. 5