NRDC, et al v. West Coast Seafood Processors, et al

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, A. WALLACE TASHIMA and CARLOS T. BEA) DISMISSED. Judge: DFO , Judge: AWT Authoring, Judge: CTB Dissenting. FILED AND ENTERED JUDGMENT. [7808486] [09-16245, 09-16796]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WEST COAST SEAFOOD PROCESSORS
ASSOCIATION,
Applicant-in-interventionAppellant,
v.
NATURAL RESOURCES DEFENSE
COUNCIL, INC.; PACIFIC MARINE
CONSERVATION COUNCIL, INC.,
Plaintiffs-Appellees,
MAKAH INDIAN TRIBE,
Intervenor-Appellee,
GARY LOCKE, Secretary of
Commerce; NATIONAL MARINE
FISHERIES SERVICE; NATIONAL
OCEANIC AND ATMOSPHERIC
ADMINISTRATION,
Defendants-Appellees.

9019







No. 09-16245
DC No.
3:01 cv-0421 JL

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NATURAL RESOURCES DEFENSE
COUNCIL, INC.; PACIFIC MARINE
CONSERVATION COUNCIL, INC.,
Plaintiffs-Appellees,
MAKAH INDIAN TRIBE,
Intervenor-Appellee,
v.
GARY LOCKE, Secretary of
Commerce; NATIONAL MARINE
FISHERIES SERVICE; NATIONAL
OCEANIC AND ATMOSPHERIC
ADMINISTRATION,
Defendants-Appellees.





No. 09-16796
DC No.
3:01 cv-0421 JL
OPINION



Appeals from the United States District Court
for the Northern District of California
James Larson, Magistrate Judge, Presiding
Argued and Submitted
June 14, 2010—San Francisco, California
Filed July 6, 2011
Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Tashima;
Dissent by Judge Bea

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COUNSEL
Gwen L. Fanger, Davis Wright Tremaine LLP, San Francisco,
California, for the applicant-in-intervention-appellant.
Selena K. Kyle, Natural Resources Defense Council, San
Francisco, California, for the plaintiffs-appellees.

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OPINION
TASHIMA, Circuit Judge:
West Coast Seafood Processors Association (“WCSPA”)
appeals from the district court’s denial of its motion to intervene as a defendant in this case, in which the Natural
Resources Defense Council, Inc., and Pacific Marine Conservation Council, Inc. (together, “NRDC”) challenged the
National Marine Fisheries Service’s (“NMFS”) program to
preserve groundfish species off the coast of California, Oregon, and Washington. Because the litigation between NRDC
and NMFS has ended, we dismiss WCSPA’s appeal as moot.
I.
Exercising its authority under the Magnuson-Stevens Act,
16 U.S.C. § 1801 et. seq., NMFS uses two primary and interrelated tools to regulate Pacific groundfish fisheries: (1) the
Pacific Coast Groundfish Fishery Management Plan
(“Groundfish Plan”), established in 1982 and amended periodically since, which sets forth procedures for assessing the
health of groundfish populations and for formulating preservation measures; and (2) annual or biennial “specifications
and management measures” (“Specifications”), which set
quotas on the catch for each overfished species and impose
restrictions on the methods used to catch such species.
II.
This case was already eight years old when WCSPA sought
to intervene, both as of right and permissively, but in one
sense the case was brand new. NRDC originally filed the case
as a challenge to Amendment 12 of the Groundfish Plan,
which governs the development of rebuilding plans for overfished species. WCSPA began to participate as an amicus in
late 2002, but it did not move to intervene. Between 2004 and
2007, NRDC amended its complaint four times, each time to

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add a challenge to a new amendment to the Groundfish Plan.
WCSPA moved to intervene in anticipation of the Fourth
Amended Complaint, but the presiding Magistrate Judge
denied the motion as untimely, and WCSPA did not appeal.
In 2009, NRDC changed the nature of the case by filing a
Fifth Amended Complaint that added a challenge to NMFS’
2009-10 Specifications. Whereas previously the case had concerned only the Groundfish Plan, the Fifth Amended Complaint brought in an attack on NMFS’ other major regulatory
mechanism, the Specifications that set fishing quotas.1 In the
past, NRDC had challenged the Specifications in separate
actions. Between 2002 and 2005, it filed separate actions
challenging the annual Specifications for 2002, 2003, and
2004, and the biennial Specifications for 2005-06. WCSPA
successfully intervened in all four actions, thereby demonstrating a strong interest in fully participating in litigation
concerning the Specifications. Predictably, WCSPA also
moved to intervene in this case two days after NRDC filed its
challenge to the 2009-10 Specifications in its Fifth Amended
Complaint. But the Magistrate Judge2 denied the motion as
untimely because of the age of the litigation. On appeal,
WCSPA argues that the Magistrate Judge erred by basing his
decision on the age of the litigation (eight years) rather than
the time that had elapsed between the filing of the Fifth
Amended Complaint and the motion to intervene (two days).
While this appeal was pending, however, the underlying litigation — the dispute between NRDC and NMFS — fully ran
its course. On the parties’ cross-motions for summary judg1

At its inception, this case was consolidated with a separate case that
challenged the 2001 Specifications, but that separate case was dismissed
after we resolved the challenge to the 2001 Specifications on appeal in
2003. See Natural Res. Def. Council, Inc. v. Evans, 316 F.3d 904 (9th Cir.
2003).
2
All parties consented under 28 U.S.C. § 636(c)(1) to a Magistrate
Judge entering judgment in the case.

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ment, the Magistrate Judge held that the Specifications for
three species violated the Magnuson-Stevens Act, but that the
Specifications for four other species did not. In an Order on
Remedy, filed April 29, 2010 — six weeks before we heard
oral argument on this appeal — the Magistrate Judge directed
NMFS to establish new Specifications within one year and
retained jurisdiction to ensure the agency’s compliance.
Although NMFS filed a notice of appeal from the Order on
Remedy, it voluntarily dismissed that appeal before briefing
by either party. The Magistrate Judge entered final judgment
on May 5, 2011.
III.
[1] An appeal is moot if there exists no “ ‘present controversy as to which effective relief can be granted.’ ” Outdoor
Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900
(9th Cir. 2007) (quoting Vill. of Gambell v. Babbitt, 999 F.2d
403, 406 (9th Cir. 1993)). WCSPA appeals from the denial of
its motion to intervene in a case that the district court has
since decided, through the Order on Remedy and the subsequent final judgment, from which neither party has appealed.
Because the underlying litigation is over, we cannot grant
WCSPA any “effective relief” by allowing it to intervene
now. The appeal is therefore moot. See United States v. Ford,
650 F.2d 1141, 1143 (9th Cir. 1981) (dismissing as moot an
appeal of a denial of a motion to intervene where the underlying litigation was voluntarily dismissed) (“Since there is no
longer any action in which appellants can intervene, judicial
consideration of the [intervention] question would be fruitless.”); cf. Canatella v. California, 404 F.3d 1106, 1109 n.1
(9th Cir. 2005) (holding that entry of judgment in the underlying litigation does not moot an appeal from a denial of a
motion to intervene, if one of the parties keeps the underlying
litigation live by pursuing an appeal).
[2] The “capable of repetition, yet evading review” exception to mootness does not apply. That exception applies only

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in “extraordinary cases.” Doe v. Madison Sch. Dist. No. 321,
177 F.3d 789, 798 (9th Cir. 1999) (en banc). Although it
might apply to an appeal of the underlying litigation about the
biennial Specifications, it does not apply to WCSPA’s appeal
of the denial of its motion to intervene.
[3] First, the “capable of repetition” prong of the exception
requires a “reasonable expectation” that the same party will
confront the same controversy again. Feldman v. Bomar, 518
F.3d 637, 644 (9th Cir. 2008). On this appeal, the controversy
is whether WCSPA’s motion to intervene was timely. Unique
circumstances produced this controversy. For eight years,
NRDC maintained an action challenging amendments to the
Groundfish Plan, a subject that did not prompt WCSPA to
intervene, at least not for the first six years of the case. NRDC
then amended its complaint to add an attack on the 2009-10
Specifications, a subject that WCSPA did consider
intervention-worthy. The district court denied the motion to
intervene as untimely because of the age of the litigation.
WCSPA disagrees and argues that the motion came in timely
response to the Fifth Amended Complaint. It is not reasonable
to expect that this dispute about timeliness will arise again.
The hybrid Groundfish Plan/Specifications litigation is over.
Although NRDC will likely challenge future Specifications
and WCSPA will likely file future motions to intervene, the
timeliness issue, which is the subject of this appeal, will not
likely reappear (as it did not appear in any of the other cases
in which the NRDC challenged earlier Specifications and in
which WCSPA successfully intervened), unless the same
unlikely, hybrid scenario develops again over the next decade.
Such a speculative possibility does not constitute a “reasonable expectation.” See Sze v. INS, 153 F.3d 1005, 1009 (9th
Cir. 1998); Luckie v. EPA, 752 F.2d 454, 458 (9th Cir. 1985).
[4] Second, the intervention issue does not “evade review.”
A controversy evades review only if it is “ ‘inherently limited
in duration such that it is likely always to become moot before
federal court litigation is completed.’ ” Ctr. for Biological

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Diversity v. Lohn, 511 F.3d 960, 965 (9th Cir. 2007) (quoting
Native Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th
Cir. 1994)). With respect to this inquiry, one must not conflate the issue in the underlying litigation — whether the
2009-10 Specifications are valid — with the controversy in
this appeal over WCSPA’s motion to intervene. The controversy over the 2009-10 Specifications does evade review,
because the Specifications are biennial. See Alaska Ctr. for
the Env’t v. U.S. Forest Serv., 189 F.3d 851, 855 (9th Cir.
1999) (two-year permit evades review); see also Evans, 316
F.3d at 911 (one-year NMFS specifications “evade review”).
But the mootness vel non of the controversy over WCSPA’s
right to intervene depends on the duration of the underlying
litigation, not on the duration of the Specifications. See Canatella, 404 F.3d at 1109 n.1. Therefore, the intervention controversy does not evade review because, by virtue of the very
fact that the underlying dispute satisfies the mootness exception and could continue well past the two-year Specifications
period, the intervention dispute is not “inherently limited in
duration” nor “likely always to become moot.” Lohn, 511
F.3d at 965. Had NMFS not voluntarily dismissed its appeal,
the underlying case would have remained alive, and we could
have granted WCSPA effective relief by allowing it to intervene. See Canatella, 404 F.3d at 1109 n.1. The intervention
controversy avoids review here only because NMFS acquiesced in the court-ordered remedy by dismissing its appeal,
not because the controversy is “inherently limited in duration.” Therefore, the exception does not apply. See Lohn, 511
F.3d at 965.3
3

The dissent contends that WCSPA “has at most two years to challenge
the denial of its motion to intervene before its challenge becomes moot.”
Dissent at 9031. This statement conflates the underlying litigation with
WCSPA’s appeal. Because the Specifications are biennial, under mootness
principles NRDC would have but two years to challenge them. That is not
enough time; therefore, the exception applies. See Evans, 316 F.3d at 911.
And because the exception applies, the underlying litigation could endure
longer than two years — indeed, had NMFS not voluntarily dismissed its

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IV.
In sum, these appeals are moot and no exception to mootness can revive them. Accordingly, these appeals are
DISMISSED.

BEA, Circuit Judge, dissenting:
The majority concludes that the case is moot and does not
reach its merits. I respectfully dissent since I conclude the
case survives mootness because it falls in the “capable of repetition, yet evading review” exception to mootness. I would
thus reach the merits of the appeal and reverse.
A seafood processors’ trade association moved to intervene
in a pending action, as of right and also permissively, two
days after the magistrate judge had granted the plaintiff, an
environmental organization, leave to file an amended complaint that challenged agency-set fishing quotas. For the past
several years, the environmental organization had challenged
such fishing quotas in separate federal court actions and the
trade association had intervened in almost all of those actions.
Here, however, the magistrate judge denied the trade association’s motion to intervene on the sole ground the motion was
untimely.
The proposed intervenor in this case is West Coast Seafood
Processors Association (“WCSPA”), a nonprofit trade associappeal, the litigation would still be ongoing now, despite the expiration of
the Specifications. Because a remedy existed on WCSPA’s motion to
intervene for as long as the underlying litigation endured, and because the
duration of the underlying litigation had no inherent limit (as its ten-year
life span attests), the intervention controversy does not “evade review”
under our case law. See Lohn, 511 F.3d at 965.

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ation whose member companies, located in California, Oregon, and Washington, process fish taken from fisheries into
consumable fish products. WCSPA appeals the magistrate
judge’s denial of its motion to intervene in this case brought
by the Natural Resources Defense Council, Inc., and Pacific
Marine Conservation Council, Inc. (together the “NRDC”),
self-styled environmental organizations, against the Secretary
of Commerce, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service
(“NMFS”).
In its Fifth Amended Complaint, NRDC alleges that NMFS
violated the Magnuson-Stevens Fishery Conservation and
Management Act (“Magnuson Act”), 16 U.S.C. § 1801 et
seq., which directs NMFS to end overfishing and to increase
the populations of overfished species off the coasts of the
United States. NMFS adopts fishery management plans to
accomplish this statutory mandate. These plans set target
dates by which to increase overfished populations to certain
levels, as well as procedures to impose fishing limits to
achieve those targets. Pursuant to those procedures, NMFS
separately announces fishing limits that set quotas, in metric
tons, on the amount of fish that may be caught each year.
In years past, NRDC has sued NMFS on the Pacific Coast
Groundfish Fishery Management Plan (“Groundfish Plan”)
amendments, contending that the amendments violated the
Magnuson Act. Between 2004 and 2007, NRDC amended its
original complaint four times, each time to incorporate a challenge to a newly adopted Groundfish Plan amendment.
WCSPA did not intervene in the suits as a party because it
was satisfied with NMFS’s representation as to issues raised
relating to the Groundfish Plan.
However, in separate federal actions, NRDC also sued
NMFS to challenge the annual fishing quota specifications for
2002, 2003, and 2004, as well as the biennial specifications
for 2005-06, which dealt with quotas (metric tons of fish).

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WCSPA timely intervened in each case for each year (save
one). Here, however, NRDC decided simply to amend its
Groundfish Plan lawsuit by its Fifth Amended Complaint
instead of following its longtime practice of bringing a separate and new lawsuit to challenge the 2009-10 specifications.
Two days after the magistrate judge granted NRDC leave to
so amend its complaint, WCSPA moved to intervene, as it had
done in each of NRDC’s separate, prior federal actions challenging fishing quotas since 2002. The magistrate judge here
denied WCSPA’s motion as untimely, and WCSPA appealed.
Given that NRDC fundamentally altered WCSPA’s interest
in this case when NRDC amended its complaint to challenge
the 2009-10 fishing quotas, as opposed to another amendment
to NMFS’s fishery management plan, and given that WCSPA
promptly moved to intervene after the magistrate judge
granted NRDC leave to file the amended complaint, I find the
magistrate judge below abused his discretion by such denial;
hence, I would reverse.
I.
I disagree with the majority that the panel cannot reach the
merits of the appeal because it is moot. Mootness is determined by whether a present controversy exists as to which a
court can grant any effective relief. Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 559 (9th Cir. 2009). I
agree with the majority that because the subject of the controversy that once existed between the NRDC and NMFS—the
2009-10 specifications—has expired and is on the verge of
being replaced by a new set of specifications, there is no longer any effective relief this court can grant to WCSPA.
Nonetheless, I conclude that this case falls within the “capable of repetition, yet evading review” exception to mootness. This exception applies if two requirements are met: “(1)
the challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there [is]

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a reasonable expectation that the same complaining party
[will] be subjected to the same action again.” Weinstein v.
Bradford, 423 U.S. 147, 149 (1975) (per curiam). The present
case meets both of these requirements.
First, the challenged action here is too short in its duration
to be fully litigated before a Court of Appeals and the
Supreme Court prior to its expiration. The underlying lawsuit
between NRDC and NMFS deals with fishing quota specifications which expire every two years. Once the fishing quota
specifications expire, the controversy over WCSPA’s right to
intervene in the suit challenging the fishing quota specifications becomes moot. WCSPA thus has at most two years to
challenge the denial of its motion to intervene before its challenge becomes moot. Both the Supreme Court and this court
have held that two years is too short in duration for a case to
be fully litigated. S. Pac. Terminal Co. v. ICC, 219 U.S. 498,
514-16 (1911) (order that expires by its terms after two years
evades review); Alaska Ctr. for Env’t v. U.S. Forest Serv., 189
F.3d 851, 855 (9th Cir. 1999) (a permit that expired in two
years is too short for judicial review); see also Greenpeace
Action v. Franklin, 14 F.3d 1324, 1329-30 (9th Cir. 1992)
(fishing quota specifications that expire in one year evade
review).
Second, the challenged action is capable of repetition. The
Supreme Court has explained it is enough that the litigant
“faces some likelihood of becoming involved in the same
controversy in the future.” U.S. Parole Comm’n v. Geraghty,
445 U.S. 388, 398 (1980). The central consideration is
“whether the controversy [is] capable of repetition and not . . .
whether the claimant ha[s] demonstrated that a recurrence of
the dispute [is] more probable than not.” Honig v. Doe, 484
U.S. 305, 318 n.6 (1988) (emphasis in original). Further, “[i]n
estimating the likelihood of an event’s occurring in the future,
a natural starting point is how often it has occurred in the
past.” Clarke v. United States, 915 F.2d 699, 704 (D.C. Cir.
1990) (en banc). For almost a decade before its Fifth

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Amended Complaint, NRDC had, without exception, challenged fishing quotas in separate actions, and WCSPA had,
with only one early exception, intervened in each of those
actions. In the present case, WCSPA attempted to intervene
in the fishing quota suit only two days after NRDC successfully amended its separate Groundfish Plan lawsuit to challenge the 2009-10 fishing quota specifications. Yet, the
magistrate judge inexplicably concluded that WCSPA’s
motion to intervene was untimely despite WCSPA’s promptness in filing its motion. Given that NRDC successfully prevented WCSPA from intervening in its fishing quota suit, it
is now likely that NRDC will pursue its fishing quota challenges by amendment to future Groundfish Plan suits against
NMFS rather than by separate action. Hence, WCSPA faces
some likelihood of becoming involved in the same controversy in the future.
Because both prongs of the repetition and evasion exception are satisfied, I conclude this case falls within the “capable
of repetition, yet evading review” exception to mootness.
Therefore, I would reach the merits of WCSPA’s appeal.
II.
On the merits, I would hold that the magistrate judge
abused his discretion when he denied WCSPA’s motion to
intervene as untimely. Under United States v. Hinkson, 585
F.3d 1247, 1251, 1262 (9th Cir. 2009) (en banc), a trial court
abuses its discretion if it fails to apply the correct legal standard to decide an issue. If, however, the trial court applies the
correct legal standard, there is no abuse of discretion unless
the trial court’s findings of fact, and its application of those
findings of fact to the correct legal standard, are illogical,
implausible, or without support in inferences that may be
drawn from facts in the record. Id.
Here, the magistrate judge correctly identified the three factors that courts weigh to determine whether a motion to inter-

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vene is timely: “(1) the stage of the proceeding at which an
applicant seeks to intervene; (2) the prejudice to other parties;
and (3) the reason for and length of the delay.” League of
United Latin Am. Citizens v. Wilson (“LULAC”), 131 F.3d
1297, 1302 (9th Cir. 1997). But the magistrate judge abused
his discretion because his findings as to those three factors are
without support in inferences that may be drawn from facts in
the record, as set out below.
A.

Stage of the proceedings

To determine whether the “stage of the proceeding” factor
supports a finding of untimeliness, the court should consider
not only “what had not yet occurred” prior to the motion to
intervene, but also “what had already occurred by that time.”
See LULAC, 131 F.3d at 1303 (emphases in original). This
factor weighs heavily against allowing intervention as of right
where the trial court has substantially engaged the issues in a
case. Smith v. Marsh, 194 F.3d 1045, 1051 (9th Cir. 1999).
But the mere lapse of time, without more, is not necessarily
a bar to intervention; “changed circumstance” may “suggest[ ]
that the litigation is entering a new stage” and, therefore,
“militate in favor of granting the application.” United States
v. Oregon, 745 F.2d 550, 552 (9th Cir. 1984).
The magistrate judge found that this factor weighed against
timeliness in this case, but the reasons he cited for this finding
are without support in inferences that may be drawn from
facts in the record. The magistrate judge first noted that two
related cases that challenged the 2001 and 2002 specifications, respectively, had been resolved on appeal. But this says
little, if anything, about the stage of the proceedings in this
case which dealt with fish quotas for 2009-10, not 2001 and
2002. This is true even as to the 2001 specifications case,
which was consolidated with this case and then dismissed.
The 2002 specifications case has an even more tenuous connection to this case because that case was never consolidated
with this one. Moreover, WCSPA timely intervened in the

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2002 specifications case, but later moved to participate in this
case only as an amicus. The only reasonable inference is that
WCSPA perceived its interest to be stronger in challenges to
the quotas in the specifications than in challenges to the procedural reforms of the Groundfish Plan amendments.
The magistrate judge also noted that, back in August 2001,
he had granted summary judgment in this case to NRDC, in
part because Amendment 12 violated the Magnuson Act’s
requirement that rebuilding plans take the form of a fishery
management plan, plan amendment, or proposed regulation.
NRDC v. Evans, 168 F. Supp. 2d 1149, 1158 (N.D. Cal.
2001). But Amendment 12 is no longer at issue in this case
because, by its own admission, “NRDC is no longer pursuing
. . . claims [as to] Amendments 12 and 16-1 through 16-3.”
Only Amendment 16-4, which supersedes the prior amendments, is still at issue in this case. Summary judgment as to
Amendment 12 therefore does not support the magistrate
judge’s finding that this case is at a late stage in the proceedings. Cf. United States v. Alisal Water Corp., 370 F.3d 915,
921 (9th Cir. 2004) (motion that was pending as to the “bulk”
of ongoing claims supported a finding that the motion to intervene came at a late stage in the litigation).
What the magistrate judge did not consider is that the filing
of the Fifth Amended Complaint started the clock running as
to the substance of that Amendment; the stage of the proceeding was now the initial stage of the proceeding with respect
of NRDC’s challenge to the 2009-10 specifications. The Fifth
Amended Complaint challenged specifications for the first
time in this case as to the 2009-10 specifications and quotas,
rather than in a separate action as NRDC had done before
without exception. Indeed, because NRDC did not file a separate action to challenge the 2009-10 specifications, the Fifth
Amended Complaint challenged those specifications for the
first time ever, in this case or any other. The magistrate judge
therefore had not engaged—much less substantially engaged
—the 2009-10 specifications in any prior proceeding in this

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case. At the time WCSPA moved to intervene, this case was
not “at issue;” NMFS had not even filed a responsive pleading
to the Fifth Amended Complaint. See LULAC, 131 F.3d at
1303 (holding the stage of the proceedings supported a finding of untimeliness of the proposed intervention where the
defendant had filed an answer). Thus, this case entered a new
stage with the filing of the Fifth Amended Complaint.
Here, I find instructive our opinion in Oregon, where the
State of Idaho moved to intervene as of right in litigation over
the extent to which two other states could, consistent with the
treaty rights of several Indian tribes, regulate fishing in a river
that runs through all three states. 745 F.2d at 551. The district
court, which five years earlier had approved a plan between
the parties for managing fisheries in the river, denied Idaho’s
motion as untimely. Id. at 552. It did so even though the
motion was filed soon after two Indian tribes had withdrawn
from the fisheries management plan and the district court had
ordered the parties to renegotiate the plan. Id. at 552. We
reversed, largely because “the possibility of new and
expanded negotiations” between the parties regarding a modified fisheries management plan constituted a “changed circumstance” and suggested the litigation was entering a new
stage. Id. Far from agreeing with the district court that the
stage of litigation disfavored intervention, we held that the
changed circumstance essentially had reset the clock on the
time for filing a motion to intervene, such that “the stage of
the proceeding . . . militate[d] in favor of granting” Idaho’s
motion to intervene. See id.
In this case, I would likewise hold that the filing of the
Fifth Amended Complaint constituted a changed circumstance
that reset the timeliness clock. Even if, prior to WCSPA’s
motion to intervene in this case, “a lot of water had already
passed underneath [the] litigation bridge” as to Plan amendments, LULAC, 131 F.3d at 1303, no water had passed underneath that bridge as to the 2009-10 specifications. The 2001
specifications case, which had been consolidated with this

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case, was dismissed following our opinion in NRDC, 316 F.3d
at 913; and none of the actions that challenged the 2002,
2003, 2004, and 2005-06 specifications/quotas were ever consolidated with this case. Significantly, WCSPA intervened as
a full-fledged party in each of those actions. Thus, the magistrate judge’s finding that WCSPA’s motion to intervene came
too late in the proceedings is without support in inferences
that may be drawn from facts in the record.
B.

Prejudice to the parties

To determine whether intervention prejudices the other parties to a case, the court compares the harm from allowing
intervention at a later stage of the proceedings with what
would have occurred no matter when the applicant was
allowed to intervene. Day v. Apoliana, 505 F.3d 963, 965 (9th
Cir. 2007) (“[T]hat the [applicant] is filing its Motion now,
rather than earlier in the proceedings, does not cause prejudice
. . . since the practical result of its intervention . . . would have
occurred whenever the state joined the proceedings.”). That
is, prejudice in this context is the harm that arises from late
intervention as opposed to early intervention. See, e.g., Cal.
Dep’t of Toxic Substances Control v. Commercial Realty
Projects, Inc., 309 F.3d 1113, 1119 (9th Cir. 2002) (agreeing
with the district court’s finding of prejudice where the parties
had already reached a settlement agreement, because late
intervention “would complicate the issues and upset the delicate balance achieved by” the parties’ agreement). Without
more, additional delay does not cause prejudice; “otherwise
every intervention motion would be denied out of hand
because it carried with it, almost [by] definition, the prospect
of prolonging the litigation.” LULAC, 131 F.3d at 1304.
Here, the magistrate judge found that WCSPA’s intervention would cause prejudice to the parties in this case for two
reasons. First, the magistrate judge stated that NRDC, as “a
nonprofit organization fighting environmental battles on many
fronts,” would have to allocate additional resources to this

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case if WCSPA were allowed to intervene. Puzzlingly, the
magistrate judge did not explain what additional resources
NRDC would need to expend that would not have been
expended had WCSPA intervened earlier in this case. Second,
the magistrate judge stated that WCSPA may attempt to conduct discovery, file motions, and challenge pervious rulings,
and thus possibly could unravel all the progress of over seven
years of litigation.
First, I am unaware that prejudice determinations should be
made differently as to “nonprofit organizations” than as to
“for profit organizations.”1 This court does not accord privileged status to nonprofit organizations based on some notion
of their greater civic virtue when compared to for profit—and
thereby taxpaying—organizations. Neither is prejudice to be
judged by whether a party is “fighting environmental battles
on many fronts” or fishing fish out of many fisheries. The lapidary lettering on the front of the Supreme Court reads:
“Equal Justice Under Law,” without an asterisked reference
that self-styled environmental organizations are more “equal”
than other parties because they are “fighting environmental
battles”—often of their own choosing.
Second, nor is there any authority for the proposition that
the reallocation of resources, without more, may constitute
prejudice. If this court were to permit a finding of prejudice
merely because a party would be forced to expend more
resources to litigate a case, prejudice would exist in every
case. See id. Thus, it was illogical for the magistrate judge to
base his finding as to prejudice on these two reasons.
The notion that WCSPA’s motion to intervene could
unravel all the progress of the last seven years of litigation is
also unpersuasive. Although the general rule is that “intervenors are permitted to litigate fully once admitted to a suit,”
1

Nor why this factor should be considered where the opponent WCSPA
is itself also a nonprofit association.

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LULAC, 131 F.3d at 1304, WCSPA denies that additional discovery is necessary and that it could challenge any prior rulings. But “neither [the magistrate judge’s] speculation nor
[WCSPA’s] reassurance can be dispositive of the timeliness
issue” with respect to prejudice. See id.
On the issue of prejudice, I find our decision in LULAC
instructive. In LULAC, public interest groups and individual
citizens sued in the Central District of California for declaratory and injunctive relief to bar California state officials from
enforcing provisions of Proposition 187, which required, inter
alia, that foreign citizens present in California without proper
immigration status be denied social services, health care, and
education benefits. Id. at 1300-01. After the district court
granted partial summary judgment to the plaintiffs, a foundation that helped draft and sponsor Proposition 187 moved to
intervene. Id. at 1301. The district court summarily denied the
motion, id., and this circuit affirmed on the ground the motion
was untimely, id. at 1308. As to prejudice, we held:
[I]n a case like this one, in which the proposed intervenor waited twenty-seven months before seeking to
interject itself into the case, only to move the court
for full-party participation at a time when the litigation was, by all accounts, beginning to wind itself
down, we believe that the additional delay caused by
the intervenor’s presence is indeed relevant to the
timeliness calculus, and counsels against granting
[the proposed intervenor’s] motion.
Id. at 1304. In this case, by contrast, WCSPA did not wait to
intervene to test the propriety of the challenged 2009-10 specifications; it sought to intervene two days after the magistrate
judge granted NRDC leave to file the Fifth Amended Complaint, which challenged those specifications for the first time
ever, and obviously, the first time in this case. This was significant because, prior to the filing of the Fifth Amended
Complaint, NRDC had consistently challenged earlier specifi-

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cations in separate actions and, beginning in 2002, WCSPA
had consistently intervened in those separate actions.
Moreover, there was some discussion at oral argument as
to whether WCSPA would withhold consent to the magistrate
judge’s jurisdiction and therefore force a transfer to another
judge who would need to familiarize himself with this case.
This possibility cannot support a finding of prejudice here.
Not only is the point speculative, but it has “little to do with
timeliness.” Oregon, 745 F.2d at 553. Nothing suggests this
possibility is “materially different now than [it] would have
been had [WCSPA] sought to intervene a decade or [so] ago.”
See id. I therefore find no inferences which can be drawn
from the record for holding that WCSPA’s intervention would
prejudice the existing parties due to the passage of time.
C.

Reason for and length of delay

The final factor that bears on the timeliness of a motion to
intervene is the “the length of and the reason for its delay.”
LULAC, 131 F.3d at 1304. To assess the timeliness of a
motion to intervene, the crucial date is not the date the applicant learned of the case, but rather “the date that the applicant
should have been aware its interests would no longer be protected adequately by the parties.” Id. (internal quotation marks
and brackets omitted). The applicant’s failure adequately to
explain the reason for its delay in moving to intervene may
weigh even more heavily than the delay itself in finding the
motion untimely. See id.
Here, the magistrate judge found that WCSPA waited over
seven years from the time NRDC filed the original complaint
in 2001, and over four years from the time we highlighted—
in NRDC, 421 F.3d at 878—the economic impact of rebuilding plans on fishing communities, before WCSPA moved to
intervene in response to the Fifth Amended Complaint. The
magistrate judge also found that WCSPA gave no reason for
its delay, but merely denied that there had been any delay. But

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WCSPA was correct to insist that it did not delay; WCSPA
moved to intervene only two days after the magistrate judge
granted NRDC leave to file the Fifth Amended Complaint.
As noted above, in the Fifth Amended Complaint NRDC
raises new issues not mentioned in the previously operative
complaint—it challenged the 2009-10 specifications, as
opposed to mere Groundfish Plan amendments. In so doing,
NRDC fundamentally altered WCSPA’s interest in this case
because by challenging the 2009-10 specification, NRDC
challenged specific quotas on the amount of each overfished
groundfish species that may be fished—and therefore
processed—in 2009 and 2010. This bears far more heavily
and directly on the ability of WCSPA’s members to earn their
livelihood processing fish than the Groundfish Plan amendment. These new issues triggered WCSPA’s right to intervene. Whereas WCSPA had been content to participate in this
case as an amicus, it consistently intervened in separate
actions that challenged the specifications/quotas. The most
reasonable inference from this pattern of litigation is that
WCSPA concluded that NMFS could adequately protect
WCSPA’s interests as to Groundfish Plan amendments at
issue in this case, but that NMFS could not adequately protect
WCSPA’s interests as to specifications at issue in the other
actions.
Thus, WCSPA had no cause to intervene in this case until
the filing of the Fifth Amended Complaint. Given the pattern
of litigation set out above, in which NRDC challenged successive Groundfish Plan amendments in this case and annual/biennial specifications in separately filed actions, WCSPA
had no reason to know that NRDC would one day challenge
the 2009-10 specifications not by continuing its practice of
commencing a separate action, but by amending its complaint
in this case. WCSPA therefore had no reason to intervene in
this case prior to the filing of the Fifth Amended Complaint.
See Alisal, 370 F.3d at 923 (“A party must intervene when he
knows or has reason to know that his interests might be

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adversely affected by the outcome of litigation.” (internal
quotation marks omitted)); cf. United States v. Washington,
86 F.3d 1499, 1506 (9th Cir. 1996) (“A failure to realize that
one’s interests are in jeopardy until very late in the proceedings may make a late motion to intervene ‘timely.’ ”).
Accordingly, the magistrate judge’s finding that WCSPA’s
motion to intervene in this case was long delayed, for no
apparent reason, is without support in inferences that may be
drawn from facts in the record. Thus, in light of all the factors
that bear on timeliness, the magistrate judge abused his discretion when he denied WCSPA’s motion to intervene as
untimely.
III.
For the reasons set out above, I conclude that the case is
capable of repetition and the magistrate judge erred when he
denied WCSPA’s motion to intervene as of right. I therefore
respectfully dissent.