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Western Watersheds Project v. Ken Salazar

September 22, 2011


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge



The Court has before it a motion to reconsider filed by proposed intervenors National Cattlemen's Beef Association, Idaho Cattle Association, and the Public Lands Council (hereinafter collectively referred to as Public Lands). The motion is fully briefed and at issue. For the reasons explained below, the Court will grant the motion.


In this lawsuit, plaintiff WWP challenges about 600 separate decisions of the BLM concerning some 40 million acres spread out over two states, Idaho and Nevada. WWP argues that these decisions failed to protect the sage grouse, a BLM-designated sensitive species that was recently given a "warranted but precluded" listing under the Endangered Species Act (ESA). The complaint challenges the 600 decisions under NEPA and FLPMA, among other environmental laws.

Public Lands sought to intervene as of right. In an earlier decision, the Court allowed intervention only as to the remedy phase, holding that the BLM could adequately protect the interests of the proposed intervenors. Public Lands seeks reconsideration of that decision based on a recent Ninth Circuit case.


A motion to reconsider an interlocutory ruling requires an analysis of two important principles: (1) error must be corrected; and (2) judicial efficiency demands forward progress. The former principle has led courts to hold that a denial of a motion to dismiss or for summary judgment may be reconsidered at any time before final judgment. Preaseau v. Prudential Insurance Co., 591 F.2d 74, 79-80 (9th Cir. 1979). While even an interlocutory decision becomes the "law of the case," it is not necessarily carved in stone. Justice Oliver Wendell Holmes concluded that the "law of the case" doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power." Messinger v. Anderson, 225 U.S. 436, 444 (1912). "The only sensible thing for a trial court to do is to set itself right as soon as possible when convinced that the law of the case is erroneous. There is no need to await reversal." In re Airport Car Rental Antitrust Litigation, 521 F.Supp. 568, 572 (N.D.Cal. 1981)(Schwartzer, J.).

The need to be right, however, must be balanced with the need for forward progress. A court's opinions "are not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure." Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D.Ill.1988). "Courts have distilled various grounds for reconsideration of prior rulings into three major grounds for justifying reconsideration:

(1) an intervening change in controlling law; (2) the availability of new evidence or an expanded factual record; and (3) need to correct a clear error or to prevent manifest injustice." Louen v Twedt, 2007 WL 915226 (E.D.Cal. March 26, 2007). If the motion to reconsider does not fall within one of these three categories, it must be denied.


Public Lands argues that a recent Ninth Circuit decision changes the legal landscape on intervention in environmental cases and warrants another look at the issue. See Wilderness Society v. U.S. Forest Service, 630 F.3d 1173, 1179 (9th Cir. 2011) (en banc). The Court agrees, and in a recent decision cited Wilderness Society in allowing intervention-as-of-right in an environmental case. See WWP v. USFWS, 2011 WL 2690430 (D.Id. July 9, 2011). That case was also brought by WWP and it challenged the decision of the United States Fish and Wildlife Service that the listing of the sage grouse was "warranted but precluded by higher priority listing actions." This Court held that various trade organizations, along with the states of Utah and Wyoming, were allowed to intervene as of right under Rule 24. That decision, along with the Circuit's decision in Wilderness Society, compel a reconsideration of the Court's earlier decision here limiting intervention to remedy only.

In Wilderness Society, the Circuit held that the legal standards governing private party intervention in NEPA cases are the same as for any intervention-as-of-right case -- the Court must examine "practical and equitable considerations" and must apply "a liberal policy in favor of intervention." Wilderness Society, 630 F.3d at 1179. That decision was issued on January 14, 2011, about a year after the decision of this Court that is the subject of Public Lands' motion for reconsideration. By making it clear that no categorical rules apply to intervention issues in NEPA cases -- and by doing so en banc -- the Circuit changed the law in a way that at the very least requires the Court to re-examine its prior decision. That reexamination must begin with Rule 24(a)(2):

On timely motion, the court must permit anyone to intervene who ... claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect ...

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