United States District Court, D. Montana, Missoula Division
NATIVE ECOSYSTEM COUNCIL, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
LEANNE MARTEN, et. al, Defendants, and MONTANA WOOD PRODUCTS ASSOCIATION, a Montana Corporation, MONTANA LOGGING ASSOCIATION, a Montana Corporation, and MEAGHER COUNTY, a political subdivision of the State of Montana, Defendant-Intervenors.
W. MOLLDY, DISTRICT JUDGE.
October 2017, Plaintiffs Native Ecosystems Council and
Alliance for the Wild Rockies (collectively
"Plaintiffs") sued the United State Forest Service
and related individuals and entities (collectively
"Forest Service"), challenging their authorization
of the Moose Creek Vegetation Project and the May 20, 2014
landscape-scale insect and disease designations for Montana
under Section 602(d) of the Healthy Forest Restoration Act of
2003 (referred to as the Farm Bill categorical exclusion).
Montana Wood Products Association, Montana Logging
Association, and Meagher County (collectively "Proposed
Defendant-Intervenors") seek to intervene. (Doc. 14.)
Although Plaintiffs indicated opposition to the motion,
(see Doc. 14 at 2), they did not file a responsive
brief. See L.R. 7.1 (d)(1)(B)(ii) ("[F]ailure
to file a response brief may be deemed an admission that the
motion is well-taken."). The motion is granted.
applicant seeking to intervene as a matter of right under
Rule 24(a)(2) must meet four requirements: "(1) the
intervention application is timely; (2) the applicant has a
significant protectable interest relating to the property or
transaction that is the subject of the action; (3) the
disposition of the action may, as a practical matter, impair
or impede the applicant's ability to protect its
interest; and (4) the existing parties may not adequately
represent the applicant's interest." Citizens
for Balanced Use v. Mont. Wilderness Ass 'n, 647
F.3d 893, 897 (9th Cir. 2011) (quoting Prete v.
Bradbury, 438 F.3d 949, 954 (9th Cir. 2006)). These
requirements are interpreted broadly in favor of
determining whether a motion is timely, three factors are
weighed: (1) the stage of the proceeding; (2) any prejudice
to the other parties; and (3) the reason for the length of
any delay. Orange Cty. v. Air Cal., 799 F.2d 535,
537 (9th Cir. 1986). Here, while the Court has not made any
substantive rulings in the case, Proposed
Defendant-Intervenors did not file their request until seven
months after the complaint was filed, (see Doc. 1
(dated Oct. 20, 2017)), on the same day substantive briefing
began, (see Doc. 11 (dated May 4, 2018)). However,
Proposed Defendant-Intervenors state that they "will
work with the existing briefing schedule and do not
anticipate seeking discovery or separately supplementing the
administrative record." (Doc. 15 at 7.) Given the stage
in the case, prejudice is possible, but can be avoided.
Proposed Defendant-Intervenors will only be permitted to file
a substantive opening brief and reply brief. They will not be
permitted to file any discovery motions or motions to
applicant must establish its interest "is protectable
under some law, and . . . there is a relationship between the
legally protected interest and the claims at issue."
Wilderness Socy. v. U.S. Forest Serv., 630 F.3d
1173, 1180 (9th Cir. 2011) (quoting Sierra Club v. U.S.
EnvtI. Protec. Agency, 995 F.2d 1478, 1484 (9th Cir.
1993)). A putative intervener's ability to protect that
interest is impaired or impeded "if it will suffer a
practical impairment of its interests as a result of the
pending litigation." Id. (quoting
California ex rel. Lockyer v. United States, 450
F.3d 436, 441 (9th Cir. 2006)).
County has established a number of interests in both the
Moose Creek Project and the Farm Bill categorical exclusion.
In his declaration, County Commissioner Rod Brewer identifies
active forest management focusing on wildfire concerns and
fuel management as being of primary concern to the County.
(See Doc. 14-4 at 3-4.) Mr. Brewer also indicates
that the County has been involved in the administrative
process related to the Project. (Id. at 5.) These
interests are legally protected and an injunction against the
Project, or the Farm Bill categorical exclusion, would impact
logging associations have also established legally protected
interests at issue, including their collaborative work with
the Forest Service and the potential "source of
contracts, employment, and income for ... members" these
types of projects provide. (Doc. 14-2 at 4; Doc. 14-3 at 6.)
Although timber contracts have not yet been awarded, the
logging organizations have "a broader interest in any
litigation that might impede [their] ability to obtain timber
from federal lands in the future." Ctr. for
Biological Diversity v. Gould, 2015 WL 6951295, at *2
(E.D. Cal.Nov. 10, 2015).
Impairment of Interest
of this matter could substantially impact Meagher County and
those whose interests are represented by the logging
associations. If Plaintiffs prevail in challenging the Moose
Creek Project, prevention of future logging could increase
fire risk and decrease forest health by allowing further
spread of insect and disease infestation. (Doc. 14-3 at 6.)
On a broader scale, if Plaintiffs are successful in
challenging the Farm Bill categorical exclusion, it will also
affect future contracts and employment for members of the
logging associations. (See Doc. 14-2 at 5.)
No. Adequate Representation
Proposed Defendant-Intervenors have met their burden of
showing inadequacy of representation. "The burden of
showing inadequacy of representation is 'minimal' and
may be satisfied if the applicant can demonstrate that
representation of its interests 'may be'
inadequate." Citizens for Balanced Use, 647
F.3d at 898 (quoting Arakaki v. Cayetano, 324 F.3d
1078, 1086 (9th Cir. 2003)). Because the Forest Service and
Proposed Defendant-Intervenors share the same ultimate
objective -i.e., upholding the Forest Service's
regulatory decisions-there is a presumption of adequate
representation. Id. Nevertheless, "the
government's representation of the public interest may
not be 'identical to the individual parochial
interest' of a particular group just because 'both
entities occupy the same posture in the
litigation.'" Id. at 899 (quoting
WildEarth Guardians v. U.S. Forest Serv., 573 F.3d
992, 996 (10th Cir. 2009)).
while both the Forest Service and Proposed
Defendant-Intervenors seek to defend the regulatory process
that was followed in this case, their ultimate goals are
different. The Forest Service is bound to follow the proper
regulatory process even if the Project does not proceed or
proceeds in a way contrary to Proposed
Defendant-Intervenors' goals, rebutting the presumption
of adequate representation. Additionally, all three Proposed
Defendant-Intervenors have an economic interest in the Farm
Bill categorical exclusion, and Meagher County has specific
economic interests in the Moose Creek Project. The County
also has an interest in tourism and local use of the forest
not shared by the Forest ...