United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE
Court has before it a motion to intervene filed by the Salmon
Headwaters Conservation Association (SHWCA). The motion is
fully briefed and at issue. For the reasons explained below,
the Court will grant the motion in part, allowing SHWCA to
intervene for remedy purposes, and deny the remainder of the
Idaho Conservation League (ICL) seeks to compel the Forest
Service to consult with NOAA and the Fish and Wildlife
Service (FWS) over the adverse effects on fish species listed
under the Endangered Species Act (ESA). ICL is concerned that
irrigation diversions are harming protected fish species, and
that the Forest Service is shirking its duty under the ESA to
complete the consultation on this danger that it started
years ago on this danger.
2001, the Forest Service prepared a Biological Assessment
(BA) for 23 irrigation diversions in the Sawtooth Valley and
found that 21 of these diversions were likely to adversely
affect protected fish species and their habitat. The Forest
Service submitted the BA to NOAA and FWS, in an effort to
initiate consultation under § 7 of the ESA. That
consultation, ICL alleges, was never completed although the
Forest Service continues to authorize the diversions to be
used, harming protected species such as sockeye salmon,
Chinook salmon, steelhead, bull trout, and their habitat.
ICL's Complaint seeks to compel the Forest Service to
initiate and complete § 7 consultations for the 23
diversions, and to adopt any interim measures necessary to
protect fish and fish habitat during consultation.
motion to intervene as a matter of right under Fed.R.Civ.P.
24(a)(2), is analyzed under a four-part test:
(1) the motion must be timely; (2) the applicant must claim a
“significantly protectable” interest relating to
the property or transaction which is the subject of the
action; (3) the applicant must be so situated that the
disposition of the action may as a practical matter impair or
impede its ability to protect that interest; and (4) the
applicant's interest must be inadequately represented by
the parties to the action.
Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173,
1177 (9th Cir. 2011). The court is guided by “practical
and equitable considerations” and construes the Rule
“broadly in favor of proposed intervenors.”
U.S. v. City of Los Angeles, 288 F.3d 391, 397 (9th
Cir. 2002). While the standard is liberal, the applicant
bears the burden of showing that each of the four elements is
met. Freedom from Religion Foundation, Inc. v.
Geithner, 644 F.3d 836, 841 (9th Cir. 2011).
Failure to satisfy any one of the requirements is fatal to
the application. Id.
application is timely, and it has a significant protectable
interest relating to the water rights of its members. The
ultimate remedy sought by ICL could as a practical matter
impair or impede SHWCA's ability to protect those water
rights. The real issue here is whether SHWCA has satisfied
the fourth factor - that SHWCA's interests are
inadequately protected by the Forest Service. To resolve this
issue, the Court must consider:
(1) whether the interest of a present party is such that it
will undoubtedly make all the intervenor's arguments; (2)
whether the present party is capable and willing to make such
arguments; and (3) whether the would-be intervenor would
offer any necessary elements to the proceedings that other
parties would neglect.
Southwest Center for Biological Diversity v. Berg,
268 F.3d 810, 822 (9th Cir. 2001). The prospective intervenor
must demonstrate that the existing parties may not adequately
represent its interest. Id. However, only a
“minimal” showing is needed. Id. The
focus should be on the “subject of the action, ”
not just the particular issues before the court at the time
of the motion. Id. Where the present party and
proposed intervenor share the same “ultimate objective,
” a presumption of adequacy of representation applies,
and the proposed intervenor can rebut that presumption only
with a “compelling showing” to the contrary.
Geithner, supra, 644 F.3d at 841.
liability portion of this case, the sole issue is whether the
Forest Service has a duty under § 7 of the ESA to
complete its consultation with NOAA and FWS. On this
liability issue, the ultimate objective of both the Forest
Service and SHWCA is to obtain a ruling that the Forest
Service has no such duty. Thus, a presumption arises that the
Forest Service will adequately protect the interests of SHWCA
on this liability issue, and SHWCA must make a compelling
showing to overcome that presumption. SHWCA has not made that
compelling showing for intervention on the liability issue.
That issue will be resolved solely as a question of law
concerning the scope of the Forest Service's duty of
consultation under § 7 of the ESA. The Forest Service
has indicated in its Answer that it has no such duty, and
SHWCA would essentially just be “piling on” if
allowed to intervene in the liability phase, offering nothing
of additional value. SHWCA is concerned, however, that the
agency might reverse course, agree that it has ...