Yuba County Water Agency v. National Marine Fisheries Service et al

Filing 49

ORDER signed by Chief Judge Morrison C. England, Jr on 5/23/13 GRANTING 27 Motion to Intervene; Nevada Irrigation District is DIRECTED to file its Proposed Complaint (Ex. 1) in Intervention forthwith not later than 10 days following the date of th is Order; GRANTING 31 Motion to Intervene; inasmuch as no proposed complaint has been submitted on behalf of Brophy/Hallwood, any such complaint in intervention MUST be filed not later than 10 days following the date of this Order; GRANTING 36 Motion to Intervene, and its 33 Proposed Complaint MUST also be filed not later than 10 days following the date of this Order; GRANTING 37 Motion to Intervene, and its 38 Proposed Complaint SHALL be filed not later than 10 days following the date of this Order. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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YUBA COUNTY WATER AGENCY,

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Plaintiff,
NEVADA IRRIGATION DISTRICT;
BROPHY WATER DISTRICT;
HALLWOOD IRRIGATION COMPANY;
PACIFIC GAS AND ELECTRIC
COMPANY; STATE WATER
CONTRACTORS, INC.,

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No. 2:13-CV-00042-MCE-CKD

ORDER

Plaintiff-Intervenors,
v.
NATIONAL MARINE FISHERIES
SERVICE; UNITED STATES
DEPARTMENT OF COMMERCE;
REBECCA M BLANK, in her official
capacity as Acting Secretary of
Commerce; RODNEY R. MCINNIS, in
his official capacity as Regional
Administrator, Southwest Region,
National Marine Fisheries Service; U.S.
ARMY CORPS OF ENGINEERS;
LIEUTENANT GENERAL THOMAS P.
BOSTICK, in his official capacity as
Commanding General of U.S. Corps of
Engineers; and COLONEL WILLIAM J.
LEADY, P.E., in his official capacity as
District Commander, Sacramento
District, U.S. Army Corps of Engineers,
Defendants.
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Presently before the Court are four separate motions filed on behalf of five parties

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who seek to intervene as Plaintiffs in the above-entitled action filed by the Yuba County

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Water Agency on January 9, 2013. All motions seek to intervene as a matter of right

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under Federal Rule of Civil Procedure 24(a), and alternatively contend that permissive

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intervention is also indicated under Rule 24(b). No opposition has been submitted to

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any of the motions.

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Plaintiff Yuba County Water Agency’s case in chief challenges the issuance, on

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February 29, 2012, of a Biological Opinion (“BiOp”) by Defendant National Marine

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Fisheries Service (“NMFS”). That BiOp addresses the potential effects on certain

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species of salmonids and green surgeon (that are listed under the Endangered Species

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Act) by operation of the Englebright and Daguerre Point dams on the Yuba River in

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Central California.

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The parties now seeking to intervene argue that their rights will also be affected

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by the BiOp. Both the Nevada Irrigation District and Pacific Gas and Electric Company

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contend, inter alia, that implementation of the BiOp will affect their relicensing status with

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the Federal Energy Regulatory Commission (“FERC”). In addition to such potential

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hydroelectric impacts, the State Water Contractors, Inc., the Brophy Water District and

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the Hallwood Irrigation Company also contend that the BiOp may affect various water

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rights. All proposed Intervenors contend that their individual interests cannot be

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adequately addressed by the existing parties to this lawsuit, and point out that their

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intervention requests were made shortly after Plaintiff’s Complaint was filed earlier this

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year.

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Intervention as a matter of right under Federal Rule of Civil Procedure 24(a)(2)

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entails a four part test. First, the application to intervene must be made on a timely

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basis. Second, the applicant must have a “significantly protectable interest” relating to

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the property or transaction that is the subject of the action. Third, the applicant must

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show that disposition of the action may impair its ability to protect that interest.

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Fourth and finally, the applicant must demonstrate that existing parties will not

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adequately represent its own interest. Cemex, Inc. v. County of L.A., 92 F. App'x. 457,

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458-59 (9th Cir. 2004), citing Southwest Ctr. For Biological Diversity v. Berg, 268 F.3d

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810, 817-18 (9th Cir. 2001). This four-part test is to be construed liberally in favor of

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intervention . Id. at 818.

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The intervention requests before the Court detail how the applicable prerequisites

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for intervention as a matter of right, as delineated above, are satisfied. Having reviewed

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those representations, and given the lack of any opposition to said requests, the Court

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finds that good cause has been established for intervention as a matter of right. The

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Court similarly finds that applicants are alternatively entitled to permissive intervention

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under Federal Rule of Civil Procedure Rule 24(b) given the fact that the applicants’

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claims are timely and share common questions of fact or law with those presented by the

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case-in-chief.
The Motions to Intervene are accordingly granted1 as follows:

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1. The Motion for Intervention submitted on behalf of Nevada Irrigation

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District (ECF No. 27) is GRANTED. Nevada Irrigation District is

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directed to file its Proposed Complaint in Intervention (Ex.1 to Notice of

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Motion) forthwith not later than ten (10) days following the date of this

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Order;

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2. The Motion to Intervene on behalf of Brophy Water District and

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Hallwood Irrigation Company (ECF No. 31) is also GRANTED.

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Inasmuch as no proposed complaint has been submitted on behalf of

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Brophy/Hallwood, any such complaint in intervention must be filed not

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later than ten (10) days following the date of this Order;

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Having determined that oral argument was not of material assistance, the Court ordered this
matter submitted on the briefs. E.D. Cal. Local Rule 230(g).

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3. Pacific Gas and Electric Company’s Amended Motion to Intervene

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(ECF No. 36) is GRANTED, and its proposed Complaint for

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Declaratory and Injunctive Relief (ECF No. 33) must also be filed not

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later than ten (10) days following the date of this Order;

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4. The Motion to Intervene filed by State Water Contractors, Inc. (ECF

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No. 37) is also GRANTED, and its Proposed Complaint in Intervention

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for Injunctive and Declaratory Relief (ECF No. 38) shall be filed not later

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than ten (10) days following the date of this Order.

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IT IS SO ORDERED.
DATED: May 23, 2013

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___________________________________________
MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT COURT

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