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Northern Plains Resource Council v. U.S. Army Corps of Engineers

United States District Court, D. Montana, Great Falls Division

November 7, 2019

U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, TC ENERGY CORPORATION, et al., Intervenor-Defendants.


          Brian Morris, United States District Court Judge.


         Northern Plains Resource Council, Bold Alliance, Natural Resources Defense Council, Sierra Club, Center for Biological Diversity, and Friends of the Earth (collectively, “Plaintiffs”), filed their complaint in this case on July 1, 2019. (Doc. 1.) Plaintiffs named the U.S. Army Corps of Engineers (“Corps”) and Lieutenant General Todd T. Semonite, in his official capacity, as defendants (collectively, “Federal Defendants”). (Id.) TransCanada Keystone Pipeline LP and TC Energy Corporation (collectively, “TC Energy”) filed a motion to intervene shortly thereafter, on July 16, 2019. The Court granted TC Energy's motion to intervene on July 23, 2019. (Doc. 20.) Plaintiffs filed an amended complaint on September 10, 2019. (Doc. 36.) Federal Defendants filed their answer on October 1, 2019. (Doc. 39.) TC Energy field its answer on October 8, 2019. (Doc. 45.)


         I. The State of Montana's Motion to Intervene

         The State of Montana (“Montana”) filed an “Unopposed Motion to Intervene” on October 7, 2019. (Doc. 42.) Montana's motion stated that “[t]he Plaintiffs, Defendants, and Intervenor-Defendants do not oppose this Motion.” (Id. at 2.) The Court granted Montana's motion on October 8, 2019. (Doc. 44.) Montana filed an answer to Plaintiffs' amended complaint on October 10, 2019. (Doc. 46.)

         Plaintiffs timely filed a Response to Montana's motion to intervene on October 18, 2019. (Doc. 50.) Plaintiffs assert that Montana mischaracterized the motion to intervene as “unopposed.” (Id. at 2.) Plaintiffs state that Plaintiffs and Plaintiffs' counsel were still considering Plaintiffs' position regarding the motion on the date Montana planned to file. (Id.) Plaintiffs' counsel notified Montana's counsel that Plaintiffs took no position on Montana's motion to intervene at that time, but Plaintiffs' counsel reserved the right to file a response. (Doc. 50-1 at 4.)

         Plaintiffs now notify the Court that they oppose Montana's intervention as of right, but do not oppose permissive intervention. (Doc. 50 at 2.) Plaintiffs request that the Court issue an order to clarify that Montana's intervention is on a permissive basis. Plaintiffs ask additionally that the Court strictly limit Montana's participation in the case to avoid delay and prejudice to the parties. (Id.)

         II. NWP 12 Coalition's Motion to Intervene

         Five national energy organizations, American Gas Association, American Petroleum Institute, Association of Oil Pipe Lines, Interstate Natural Gas Association of American, and National Rural Electric Cooperative Association (collectively, the “Coalition”) filed a motion to intervene on October 15, 2019. (Doc. 48.) Plaintiffs oppose the Coalition's motion. TC Energy and Montana consent to the Collation's motion. Federal Defendants do not oppose the Coalition's motion for permissive intervention. (Id. at 2.)

         III. Intervention as of Right

         A party seeking to intervene as of right pursuant to Fed.R.Civ.P. 24(a) bears the burden of establishing that: (1) the motion is timely; (2) the applicant has a “significantly protectable” interest relating to the action; (3) the applicant is so situated that the disposition of the action may, as a practical matter, impair or impeded the applicant's ability to protect its interest; and (4) the existing parties will not adequality represent the applicant's interests. Wilderness Soc. v. U.S. Forest Service, 630 F.3d 1173, 1177 (9th Cir. 2011).

         Courts determine adequacy of representation by examining three factors: (1) whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor's arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether a proposed intervenor would offer any necessary elements to the proceeding that the other parties would neglect. Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893, 898 (9th Cir. 2011).

         Neither Montana, nor the Coalition, have demonstrated that they are entitled to intervention as of right. Both submitted timely motions and articulated a “significantly protectable” interest in Nationwide Permit 12 (“NWP 12”) that relates to the present action. Montana and the Coalition have failed to demonstrate at this point, however, that they are situated so that the action's disposition would impair or impede their ...

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