United States District Court, D. Idaho
CENTER FOR BIOLOGICAL DIVERSITY, DEFENDERS OF WILDLIFE, CONSERVATION NORTHWEST, IDAHO CONSERVATION LEAGUE, SELKIRK CONSERVATION ALLIANCE, and THE LANDS COUNCIL, Plaintiffs,
BRIAN KELLY, U.S. Fish and Wildlife Service Idaho State Supervisor, and U.S. FISH AND WILDLIFE SERVICE, Defendants.
REPORT AND RECOMMENDATION
CANDY W. DALE, Magistrate Judge.
Pending before the Court are motions to intervene filed by the Kootenai Tribe of Idaho; Boundary County, Idaho; and Idaho Governor C.L. "Butch" Otter. All three movants move to intervene as Defendants in support of the United States Fish and Wildlife Service's designation of critical habitat for the southern Selkirk Mountains population of woodland caribou. Each movant seek to intervene as a matter of right, or alternatively, permissively, under Fed.R.Civ.P. 24. Only Plaintiffs oppose the motions.
Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter will be decided on the record without oral argument. Dist. Idaho Loc. Civ. R. 7.1. For the reasons stated below, the Court will grant the motions.
Mountain caribou require large contiguous areas of high-elevation old growth coniferous forests with little or no disturbance from vehicles or other human activities. The primary threats to mountain caribou are habitat loss or fragmentation such as from timber harvest or wildfire, disturbances that displace caribou from their habitat such as snowmobile use in winter or off-road vehicle use in summer, and predation. These animals make movements between seasonal habitat types. Mountain caribou currently occupy mountainous terrain in eastern British Columbia and the Selkirk Mountains of northern Idaho and northeast Washington.
Due to the imperiled status of the southern Selkirk Mountains population of caribou, this population was emergency listed as endangered under the ESA on January 14, 1983 (48 Fed. Reg. 1722) and a final listing rule was published on February 29, 1984 (49 Fed. Reg. 7390). At the time of listing, only an estimated 25-30 animals existed in the population. Recovery Action Plans for the southern Selkirk Mountains woodland caribou written by the Woodland Caribou Recovery Team set a goal of 125 animals for this population. The current population is still below that goal.
In 2002, a coalition of environmental groups petitioned the Service to designate critical habitat for the endangered southern Selkirk Mountains caribou. The coalition sued the Service in 2009. A settlement of that lawsuit resulted in a proposed critical habitat rule being issued on November 30, 2011 (76 Fed. Reg. 74, 018), and a final rule on November 28, 2012 (77 Fed. Reg. 71, 042). The proposed rule designated 375, 562 acres of critical habitat. After considerable input,  the Service completed a draft final rule selecting 227, 100 acres of critical habitat for the final designation, and sent it to the Regional Office for preliminary review near the end of July 2012.
In September of 2012, the Service significantly reduced the critical habitat designation. The new recommendation eliminated all critical habitat in Idaho except a small area near the borders of Washington and Canada, and resulted in a total of 30, 010 acres of critical habitat. The new recommendation included only federal land, with no critical habitat on state or private land. The final designation included 6, 029 acres of federal land in Idaho. The Service did not allow for additional public comment on the revised version of the critical habitat designation before it issued the final rule.
Plaintiffs ask the Court to set aside the final critical habitat designation for the southern Selkirk Mountains population of woodland caribou and to order the Service to complete a new critical habitat rule that complies with the law.
The applicants move to intervene under Fed.R.Civ.P. 24(a) or (b) because of their respective interests in managing federal land, their economic interests, and tribal interests. Collectively, the movants contend that any action that would affect the final designation of critical habitat by expanding its boundaries, as Plaintiffs propose, would adversely affect these interests. The movants argue they each have a distinct and substantial interest in this litigation.
1. LEGAL STANDARD
The Federal Rules of Civil Procedure set forth two types of intervention: 1) as a matter of right and 2) permissive. See Fed.R.Civ.P. 24(a)(2), 24(b). To intervene as of right under Rule 24(a)(2), the proposed intervenor must demonstrate: (1) it has a significant protectable interest relating to the property or transaction that is the subject of the action; (2) the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect its interest; (3) the motion is timely; and (4) the applicant's interest may be inadequately represented by the parties to the action. Wilderness Soc. v. U.S. Forest Servs. , 630 F.3d 1173, 1177 (9th Cir. 2011). The party seeking to intervene bears the burden of showing all requirements for intervention have been met. United States v. City of Los Angeles , 288 F.3d 391, 397 (9th Cir. 2002); see also Perry v. Proposition 8 Official Proponents , 587 F.3d 947, 950 (9th Cir. 2009) ("failure to satisfy any one of the requirements is fatal to the application"). In determining whether intervention is appropriate, courts are guided primarily by practical and equitable concerns, and the requirements for intervention are broadly interpreted in favor of intervention. City of Los Angeles , 288 F.3d at 397, cited in Wilderness Soc. , 630 F.3d at 1179.
An applicant who seeks permissive intervention under Rule 24(b)(2) must prove it meets three threshold requirements: (1) it shares a common question of law or fact with the main action; (2) its motion is timely; and (3) the court has an independent basis for jurisdiction over the applicant's claims. Donnelly v. Glickman , 159 F.3d 405, 412 (9th Cir.1998). The court must also consider whether "intervention will ...