Defenders of Wildlife v. Minerals Management Service et al

Filing 109

ORDER granting 102 Motion to Intervene of Apache Corporation. Apache is ordered, on or before 10/4/11, to file as a freestanding pleading the proposed answer that it submitted previously. Signed by Chief Judge William H. Steele on 9/26/2011. (mbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

DEFENDERS OF WILDLIFE,
Plaintiff,
v.
BUREAU OF OCEAN ENERGY
MANAGEMENT, REGULATION, AND
ENFORCEMENT, et al.,
Defendants,
AMERICAN PETROLEUM INSTITUTE,
et al.,
Intervenor-Defendants.

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CIVIL ACTION 10-0254-WS-C

ORDER
This matter comes before the Court on the Unopposed Motion of Apache Corporation for
Leave to Intervene as a Defendant (doc. 102).1
It is, by now, well established that this action was brought by plaintiff, Defenders of
Wildlife, against various federal agencies and officials (including, most notably, the Bureau of
Ocean Energy Management, Regulation, and Enforcement (“BOEMRE”)) concerning federal
administration of oil and gas leasing operations in the Gulf of Mexico in the wake of the
Deepwater Horizon oil spill. Among other things, Defenders of Wildlife is seeking to overturn
or invalidate certain leases awarded by BOEMRE after that spill.
Not surprisingly, various leaseholders have successfully petitioned this Court to intervene
in this action as party defendants pursuant to Rule 24(a), Fed.R.Civ.P., based on their undeniable
interest in these proceedings and the uncertainty that any existing defendants can or will
1

Also before the Court is a document styled “Apache Deepwater LLC’s Answer
to Third Amended Complaint” (doc. 101). Apache filed that Answer not as a proposed pleading
appended to its Motion as an exhibit, but as an actual, original responsive pleading. This is
improper on its face, given that Apache filed its Answer without having been granted leave to
intervene. Accordingly, Apache’s Answer to Third Amended Complaint (doc. 101) is stricken
as having been improperly filed without leave of court.

adequately address those other stakeholders’ interests. The Court has written at some length to
the intervention issue in this case on no fewer than three occasions. (See docs. 31, 67, 95.)2
Now, yet another interested entity, Apache Deepwater, LLC, seeks leave to intervene in
this action as a party defendant pursuant to Rule 24(a), Fed.R.Civ.P. As grounds for its Motion
to Intervene, Apache asserts that it owns some 40 deepwater leases and that those leases are
among the transactions and property that Defenders of Wildlife is challenging in this litigation.
Apache further states that neither Defenders of Wildlife nor the federal defendants have taken
any position on the Motion, and that all of the existing intervenors do not oppose it.
Upon careful review of the Motion, the undersigned finds that Apache’s request for
intervention is indistinguishable from those previously considered and granted in this action.
Like the other intervenors, Apache has a direct, substantial and legally protectable interest in the
subject matter of this litigation, which interest would be impaired if Defenders of Wildlife were
to prevail on the merits. See, e.g., Georgia v. U.S. Army Corps of Engineers, 302 F.3d 1242,
1249, 1258 (11th Cir. 2002) (intervention of right is appropriate where putative intervenor’s
interest in subject matter of suit “is direct, substantial, and legally protectable” and where party
“claims an interest in the very property and very transaction that is the subject of the main
action,” such that “the potential stare decisis effect may supply the practical disadvantage which
warrants intervention as of right.”) (citation omitted). Like the other intervenors, Apache has
met its “minimal” burden of showing that existing parties may be inadequate to protect its
interest. See id. at 1255 (“The proposed intervenor has the burden of showing that the existing
parties cannot adequately represent its interest, but this burden is treated as minimal.”) (citations
2

In the first such Order (doc. 31), entered on August 9, 2010, the undersigned
granted leave to intervene to various industry trade groups, including the American Petroleum
Institute, the Independent Petroleum Association of America, the U.S. Oil & Gas Association,
and the International Association of Drilling Contractors. In the second Order (doc. 67), entered
on December 9, 2010, the undersigned similarly granted leave to intervene to Chevron U.S.A.,
Inc., based on Chevron’s showing that it had been awarded dozens of leases that are the subject
of Defenders of Wildlife’s legal challenge herein and that the industry trade associations that had
previously intervened might not adequately represent Chevron’s interests in this action. The
third Order (doc. 95) reached similar conclusions in allowing Anadarko E&P Company LP to
intervene, where Anadarko’s bids on dozens of affected leases had been accepted by BOEMRE
and there may not be identity of interests among Anadarko and the other defendants and
intervenor-defendants.

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and internal quotation marks omitted). In that regard, Apache persuasively argues that (i) the
federal defendants cannot be expected to safeguard Apache’s interests in this action because they
are tasked with advancing the interests of the general public rather than specific stakeholders, (ii)
the trade association intervenors may not protect Apache’s interests because they are looking out
for an entire industry rather than a particular member of same, and (iii) Chevron and Anadarko
may not protect Apache’s interests because they hold different leases and are economic
competitors of Apache.
The Court further agrees that Apache’s request for intervention is timely for purposes of
Rule 24(a). Although this action commenced well over a year before Apache filed its Rule 24
Motion, this case remains in its relatively early stages. Apache has represented that it will make
any requests for supplementation of the administrative record “swiftly,” and that it will abide by
all deadlines in the Rule 16(b) Scheduling Order. On the record before the Court, there is no
reason to believe that any existing party would suffer unfair prejudice, or that resolution of this
action would be unreasonably delayed, if Apache were permitted to intervene at this time.
In light of these considerations, and also for the reasons discussed in the three previous
Orders of this Court granting other interested entities’ requests to intervene in this matter,
Apache’s Unopposed Motion for Leave to Intervene (doc. 102) as an intervenor-defendant is
granted as of right, pursuant to Rule 24(a), Fed.R.Civ.P.
As the Court has cautioned all of the other intervenors, however, Apache must exercise
its rights with care to avoid repetitious filings that merely repeat or rephrase arguments that
others have already articulated. In its Motion, Apache writes that, “[t]o the extent possible,
Apache will coordinate with the other intervenors to avoid duplicative filings and briefings on
common issues.” (Doc. 102, at 9.) The Court expects as much. Accordingly, Apache is
ordered to work together in good faith with the other intervenors and with the Federal
Defendants -- to the extent reasonably possible -- to coordinate and consolidate their motions,
briefs, and so on, to avoid unnecessary duplication and maximize the efficiency of these
proceedings for all concerned.

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Its Motion to Intervene having now been granted, Apache is ordered, on or before
October 4, 2011, to file as a freestanding pleading the proposed answer that it submitted
previously.
DONE and ORDERED this 26th day of September, 2011.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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