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Western Watersheds Project v. Zinke

United States District Court, D. Idaho

August 21, 2018

RYAN K. ZINKE, Secretary of the Interior, et al., Defendants.



         Now pending before the Court are: (1) State of Wyoming's (“Wyoming”) Motion to Intervene (Docket No. 13), and (2) Western Energy Alliance's (“WEA”) Motion to Intervene (Docket No. 20). Having carefully considered the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:[1]

         I. BACKGROUND

         Broadly speaking, this case challenges the Trump Administration's allegedly unlawful actions to promote and expedite oil and gas leasing on public lands (or managed by the United States) that, according to WWP, “will adversely impact essential habitats and populations across the range of the greater sage-grouse . . ., and violate bedrock environmental laws including the Federal Land Policy and Management Act (“FLPMA”), the National Environmental Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”).” Compl., ¶ 1 (Docket No. 1). More specifically, WWP alleges that the Federal Defendants have issued a series of orders, reports, and directives that effectively disregard previously-understood/followed protections for sage-grouse populations, while limiting opportunities for public involvement during the oil and gas leasing process - materializing in eight “final” BLM oil and gas leases (three in Montana, one in Utah, and four in Wyoming) that impact sage-grouse habitats. See id. at ¶¶ 1-14, 73-225. WWP now challenges these leasing actions as violating the 2015 Sage-Grouse Plan Amendments to BLM Resource Management Plans, FLPMA, NEPA, and the APA. See id. at ¶¶ 276-307. WWP additionally challenges two recent BLM “Instruction Memoranda” (“IMs”) that WWP claims revised BLM oil and gas leasing and development policies without any public procedures (notice and comment) or environmental review - IM 2018-026, which overrides the “prioritization” requirement of the 2015 Sage-Grouse Plan Amendments (prioritizing oil and gas leasing outside of sage-grouse habitat); and IM 2018-034, which avoids environmental analysis of oil and gas leasing and development decisions, while limiting public notice and involvement in those decisions. See id. at ¶¶ 98-112.


         Federal Rule of Civil Procedure 24 allows intervention by right or by permission. Intervention by right under Rule 24(a)(2) requires that: “(1) the applicant must timely move to intervene; (2) the applicant must have a significantly protectable interest related to the property or transaction that is the subject of the action; (3) the applicant must be situated such that the disposition of the action may impair or impede the party's ability to protect that interest; and (4) the applicant's interest must not be adequately represented by existing parties.” Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003); see also Fed. R. Civ. P. 24(a)(2). In general, courts construe Rule 24(a) liberally in favor of intervention. See Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 2001). Moreover, the court's evaluation is “guided primarily by practical considerations, ” not technical distinctions. See id. Nonetheless, the “[f]ailure to satisfy any one of the requirements is fatal to the application.” Perry v. Prop. 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009).

         Where intervention as of right is unavailable, a party may still seek permissive intervention. Under Rule 24(b), “the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.” Fed.R.Civ.P. 24(b)(1)(B). The Rule also requires the court to consider “whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.” Fed.R.Civ.P. 24(b)(3). As with Rule 24(a) intervention, the court should interpret the requirements broadly in favor of intervention. See United States v. Aerojet, 606 F.3d 1142 (9th Cir. 2010).


         There is no question that Wyoming's and WEA's at-issue applications for intervention are timely - the first factor. Consideration of the second and third factors - whether Wyoming and WEA may suffer an impairment of a “significantly protectable” interest as a result of this lawsuit - calls on the Court to follow “practical and equitable considerations” and construe Rule 24(a) broadly in favor of Wyoming's and WEA's intervention efforts. Wilderness Society v. U.S. Forest Serv., 630 F.3d 1173, 1179 (9th Cir. 2011). For instance, is there an “interest protectable under some law” and is there “a relationship between the legally protected interest and the claims at issue?” Id. at 1180. Wyoming and WEA “ha[ve] a sufficient interest for intervention purposes if [they] will suffer a practical impairment of [their] interests as a result of the pending litigation.” Id.

         Here, Wyoming characterizes its interest as preventing the interruption of the four oil and gas leases located in the state that are involved in this case. See Wyoming Mem. in Supp. of Mot. to Intervene, p. 3 (Docket No. 13-1). Additionally, Wyoming asserts that 37% of the total population of the greater sage-grouse exists in Wyoming (more than twice as much as any other state) and further asserts that the state has expended significant resources to ensure the successful implementation of its coordinated conservation efforts concerning sage-grouse populations and habitat. See generally id. at pp. 3-5, 7-9. Wyoming argues that, if WWP's requested relief is granted, its ability to maintain a balance between conservation of the greater sage-grouse and the economic needs of its citizens may be compromised. See id. at p. 9 (“[Wyoming] has a vested interest in the implementation of the 2015 Plans. In addition, programs dependent on taxes from oil and gas development on federal lands will suffer from a loss of funds. The loss of those governmental revenues constitutes a concrete and imminent injury that would be fairly traceable to the conservation organizations' success in this litigation.”) (internal quotation marks and citations omitted).

         WEA, in turn, represents oil and gas producers. Specifically, WEA is a regional trade association representing more than 300 member companies engaged in all aspects of oil and gas exploration and production in the western United States, including Idaho, Wyoming, Colorado, Nevada, Montana, North Dakota, South Dakota, and Utah. See WEA Mem. in Supp. of Mot. to Intervene, p. 2 (Docket No. 20-1). WEA claims that it not only has significant monetary interests in the challenged oil and gas leases at issue in this case, but also an organizational interest in maintaining regulatory certainty in the BLM's oil and gas leasing program. See id. at pp. 5-6. (“[WEA] members have invested tens of millions of dollars on the leases in question and billions of dollars in operations in greater sage-grouse habitat, operations that expand across much of the range affected by the challenged actions.”). If WWP prevails in this case, WEA claims that its members “would suffer economic harm from greater restrictions that would be imposed on federal leases and property rights owned by them, ” while being “unable to fully develop their leased oil and natural gas resources, ” resulting in reduced income to the member companies. Id. at 7.

         These arguments sufficiently satisfy the second and third factors, in that Wyoming and WEA each has a “significantly protectable” interest that could be impaired by this litigation. This litigation may impact oil and gas leases (both existing and future) in Wyoming, while also affecting regulatory procedures surrounding the issuance of oil and gas leases generally in portions of the Western United States. Hence, both entities have a significantly protectable interest at stake in this litigation - interests that could be impaired if they are not permitted to intervene. See, e.g., Western Watershed Project v. U.S. Fish and Wildlife Serv., 2011 WL 2690430 (D. Idaho 2011) (granting intervention upon showing that relief might consist of mitigation measures that could have substantial effect on permits held by proposed intervenors).

         The fourth factor examines whether Wyoming's and WEA's interests are adequately represented by the Federal Defendants. To resolve this issue, courts 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.” Berg, 268 F.3d at 822. In short, Wyoming and WEA must demonstrate that the Federal Defendants may not adequately represent its interests. See id. The burden of showing inadequacy is “minimal” - Wyoming and WEA need only show that representation of their interests by the Federal Defendants “may be” inadequate. Id. In assessing the adequacy of representation, the focus should be on the “subject of the action, ” not just the particular issues before the court at the time of the motion. See id.

         While the Federal Defendants have a duty to represent the interests of the public, they have no duty to represent the personal or economic interests of non-federal governmental entities like Wyoming or WEA regarding environmental litigation that challenges federal action. See, e.g., Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1499 (9th Cir. 1995) (finding that federal government is “required to represent a broader view than the more narrow, parochial interests” of a proposed state or county intervenor). It is true that the Federal Defendants, Wyoming, and WEA have a fundamental interest in seeing the oil and gas lease sales upheld; but, it cannot be said that the Federal Defendants will “undoubtedly” make Wyoming's and WEA's arguments for them, and not with the same level of urgency and priority. While the Federal Defendants will generally defend the Secretary's decision (and decision-making process), only Wyoming and WEA are uniquely capable of explaining how any potential ruling will affect a state's economy and the property interests of a private trade association that are both heavily dependent on oil and gas production/leasing. See Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893, 899 (9th Cir. 2011) (“government's representation of the public interest may not be ...

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