United States District Court, D. Montana, Missoula Division
L. CHRISTENSEN, CHIEF JUDGE UNITED STATES DISTRICT COURT
the Court is the Motion to Intervene (Doc. 32) filed by Sun
Mountain Lumber, Inc. ("Sun Mountain") in which Sun
Mountain seeks to intervene as defendant-intervenors in this
case "as of right" pursuant to Federal Rule of
Civil Procedure 24(a) or "permissively" pursuant to
Rule 24(b). (Doc. 33 at 2.) Neither Plaintiffs nor Defendants
take a position on Sun Mountain's request. (Id.)
For the following reasons, Sun Mountain's Motion will be
litigant seeking to intervene under Fed.R.Civ.P. 24(a) bears
the burden of establishing that the following criteria are
satisfied: (1) the motion is timely; (2) the applicant has a
"significantly protectable" interest relating to
the property or transaction that is the subject of the
action; (3) the applicant is so situated that the disposition
of the action may, as a practical matter, impair or impede
the applicant's ability to protect its interest; and (4)
the applicant's interest is not adequately represented by
the existing parties in the lawsuit. Wilderness Soc. v.
US. Forest Service, 630 F.3d 1173, 1177 (9th Cir. 2011)
(quoting Sierra Club v. EPA, 995 F.2d 1478, 1481
(9th Cir. 1993)); DBSI/TRJ IV Ltd. Partnership v. United
States, 465 F.3d 1031, 1037 (9th Cir. 2006).
evaluating these factors, "[c]ourts are to take all
well-pleaded, nonconclusory allegations in the motion to
intervene, the proposed complaint or answer in intervention,
and declarations supporting the motion as true absent sham,
frivolity or other objections." Southwest Center for
Biological Diversity v. Berg, 268 F.3d 810, 820 (9th
Cir. 2001). While "the party seeking to intervene bears
the burden of showing those four elements are met, 'the
requirements for intervention are broadly interpreted in
favor of intervention.'" Prete v. Bradbury,
438 F.3d 949, 954 (9th Cir. 2006) (quoting United States
v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir.
Mountain's Motion is timely. The timeliness of a motion
to intervene depends on three criteria: "(1) the stage
of the proceeding at which an applicant seeks to intervene;
(2) the prejudice to other parties; and (3) the reason for
the length of the delay." United States v.
Carpenter, 298 F.3d 1122, 1125 (9th Cir. 2002) (internal
quotation marks and citations omitted). First, the litigation
is currently in the summary judgment stage and will not be
delayed by Sun Mountain's intervention. (Doc. 33 at
9-10.) Second, while the Court has granted Plaintiffs'
request for a preliminary injunction of the North Hebgen
Project, the Court has yet to make any substantive rulings
and summary judgment briefing has not yet been received.
Consequently, the Court does not find that Sun Mountain's
intervention would prejudice either of the Parties. Lastly,
this litigation was initiated in May of this year, and the
Court issued its Case Management Order very recently, on
October 23, 2018. (Docs. 1; 34.) The Court finds that Sun
Mountain has not unreasonably delayed intervening in this
Significant Protectable Interest
an applicant for intervention as of right demonstrates
sufficient interest in an action is a practical, threshold
inquiry, and [n]o specific legal or equitable interest need
be established." Citizens for Balanced Use v. Mont.
Wilderness Ass 'n, 647 F.3d 893, 897 (9th Cir. 2011)
(internal quotation marks and citations omitted). "To
demonstrate a significant protectable interest, an applicant
must establish that the interest is protectable under some
law and that there is a relationship between the legally
protected interest and the claims at issue."
Id. Sun Mountain holds a timber contract which
serves to implement a portion of the challenged North Hebgen
Project. (Doc. 33 at 12.) This timber contract will provide
the mill with approximately a month and a half of work.
(Id. at 13.) More broadly, Sun Mountain asserts that
it has an economic interest in "maintaining the supply
of public timber on the market." (Id. at 14.)
Without getting into the sufficiency of the latter, the Court
finds that the former demonstrates a significant protectable
interest. "Contract rights are traditionally protectable
interests." Southwest Cntr. for Biological Diversity
v. Berg, 268 F.3d 810, 820 (9th Cir. 2001).
Impairment of Interest
"prospective intervenor has a sufficient interest for
intervention purposes if it will suffer a practical
impairment of its interests as a result of the pending
litigation." Wilderness Society v. U.S. Forest
Service, 630 F.3d 1173, 1180 (9th Cir. 2011) (internal
quotation marks and citation omitted). The relief requested
by Plaintiffs, the injunction of the North Hebgen Project and
a declaration that Defendants have violated NEPA or the ESA,
(Doc. 1 at 42), threatens the existence of Sun Mountain's
ability to implement the timber contract. Accordingly, the
Court finds that Sun Mountain will suffer a practical
impairment of its interests should Plaintiffs succeed in this
Inadequacy of Representation
prospective intervenor "bears the burden of
demonstrating that the existing parties may not adequately
represent its interest." Berg, 268 F.3d at 822.
The burden is minimal and is satisfied if the applicant can
demonstrate that representation of its interests "may
be" inadequate. Arakaki v. Cayetano, 324 F.3d
1078, 1086 (9th Cir. 2003) (quoting Trbovich v. United
Mine Workers, 404 U.S. 528, 538 n. 10 (1972)). This
Court is to consider:
(1) whether the interest of a present party is such that it
will undoubtedly make all the intervener'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 823 (quoting Northwest Forest
Res. Council v. Glickman,82 F.3d 825, 838 (9th Cir.
1996). Additionally, there is "an assumption of adequacy
when the government is acting on behalf of a constituency
that it ...