Center for Biological Diversity et al v. U.S. Fish & Wildlife Service et al

Filing 49

ORDER GRANTING MOTION TO INTERVENE by Judge Jon S. Tigar granting 13 Motion to Intervene. (wsn, COURT STAFF) (Filed on 4/7/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CENTER FOR BIOLOGICAL DIVERSITY,
et al.,
Plaintiffs,

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U.S. FISH & WILDLIFE SERVICE, et al.,

Re: ECF No. 13

Defendants.

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United States District Court
Northern District of California

ORDER GRANTING MOTION TO
INTERVENE

v.

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Case No. 15-cv-05754-JST

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Before the Court is a Motion to Intervene filed by Siskiyou County of California, Douglas

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County of Oregon, and five trade associations. ECF No. 13. Plaintiffs do not oppose intervention,

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ECF No. 31, and therefore the Court will grant the motion. Plaintiffs additionally request two

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restrictions on intervention. The Court will deny both requests.

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I.

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FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Center for Biological Diversity and Environmental Protection Information Center

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(“Plaintiffs”) submitted a listing petition under section 4(b)(3) of the Endangered Species Act

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(“ESA”), 16 U.S.C. § 1533(b)(3), seeking to have the coastal marten—a bushy-tailed woodland

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carnivore, also known as the Humboldt marten, that inhabits the western United States west of the

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crest of the Rocky Mountains—listed as an endangered or threatened species. ECF No. 13 at 9.

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U.S. Fish & Wildlife Service (“USFW”) initiated a status review and concluded that “coastal

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martens are not at risk of extinction throughout all or a significant portion of their range, either

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now or in the foreseeable future . . . and listing coastal martens as a threatened or endangered

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under the ESA is ‘not warranted.’” ECF No. 1 ¶ 35.

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As a result, Plaintiffs brought this action against the USFW and other Defendants (Sally

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Jewel and Daniel M. Ashe, in their official capacities) seeking declaratory and injunctive relief.

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ECF No. 1. Plaintiffs request that the Court declare the USFW’s finding for the coastal marten

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contrary to the best scientific and commercial data available and in conflict with the plain

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language of the ESA. Id. at 13-17. Plaintiffs also request the Court set aside the USFW’s finding

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and instruct the USFW to reconsider the coastal marten’s listing in accordance with the ESA. Id.
On February 18, 2016, Siskiyou County of California, Douglas County of Oregon, and five

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trade associations (“Intervenors”) moved for leave to intervene as of right, or in the alternative,

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permission to intervene. ECF No. 13 at 7. The trade associations are the American Forest

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Resource Council, National Association of Home Builders, California Forestry Association,

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Oregon Forest Industries Council, and Douglas Timber Operators. Id.
Plaintiffs submitted their Response on February 24, 2016,. ECF No. 31. Plaintiffs do not

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oppose intervention by Intervenors, but request two conditions be imposed on the intervention. Id.

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United States District Court
Northern District of California

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at 1. First, they request that Intervenors be prohibited from seeking to discover or otherwise

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introduce any extra-record evidence. Second, they request that Intervenors be restricted to filing

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only a single brief in opposition to Plaintiffs’ anticipated motion for summary judgment. Id. at 2.
Intervenors filed their Reply to Plaintiff’s Response (“Reply”) on March 10, 2016. ECF

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No. 42. Intervenors again argued that the Court should grant them intervention as of right and

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opposed both of Plaintiffs’ requested conditions because “they are incompatible with rule[s]

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governing intervention as of right and are unnecessary to efficient resolution of this case.” Id. at 2.

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II.

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LEGAL STANDARD
Federal Rule of Civil Procedure 24(a) allows parties to intervene in actions as of right:

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On timely motions, the court must permit anyone to intervene who . . .
claims an interest relating to the property or transaction that is the subject
of the action, and is so situated that disposing of the action may as a
practical matter impair or impede the movant’s ability to protect its
interest, unless existing parties adequately represent that interest.

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To be entitled to intervention as of right, “(1) the motion must be timely; (2) the applicant

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must claim a ‘significant protectable’ interest relating to the property or transaction which is the

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subject of the action; (3) the applicant must be so situated that the disposition of the action may as

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a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s

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interest must be inadequately represented by the parties to the action.” Wilderness Soc. v. U.S.

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Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (en banc) (citing Scotts Valley Band of Pomo
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Indians v. United States, 921 F.2d 924, 926 (9th Cir. 1990)).
Courts considering 24(a) motions follow “‘practical and equitable considerations’” and

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construe the rule “broadly in favor of proposed intervenors.” Wilderness Soc., 630 F3d at 1179

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(quoting United States v. City of Los Angeles, 288 F.3d 391, 397 (9th Cir. 2002)). “We do so

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because ‘[a] liberal policy in favor of intervention serves both efficient resolution of issues and

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broadened access to the courts.’” Id.

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III.

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ANALYSIS
For the reasons discussed below, the motion to intervene is granted, and Plaintiffs’

requested restrictions are denied.
A.

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United States District Court
Northern District of California

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Motion to Intervene

Intervenors have moved the Court for intervention both as of right and by permission.

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ECF No. 13 at 7. Plaintiffs “dispute both the relevance and the veracity of many factual

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assertions” by Intervenors, but state that they do not oppose intervention by the proposed

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intervenors. ECF No. 31 at 1. Because no one contests that the conditions for intervention are

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met, the Court will grant the motion.

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First, as Intervenors suggest, the motion is timely. Three factors should be evaluated to

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determine whether a motion to intervene is timely: “(1) the stage of the proceeding at which an

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applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of

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the delay.” Cal. Dep’t of Toxic Substances Control v. Commercial Realty Projects, 309 F.3d

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1113, 1119 (9th Cir. 2002) (citation omitted). At the time of the filing of the motion, Defendants

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had not yet filed a response to the complaint, and no substantive proceedings have occurred.

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Plaintiffs acknowledgment of Intervenors’ right to intervene also suggests there will be no

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prejudice.

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Second, Intervenors also argue that they have significant protectable interests. A “specific

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legal or equitable interest” is not required, and it is “generally enough that the interest is

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protectable under some law, and that there is a relationship between the legally protected interest

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and the claims at issue.” Wilderness Soc’y v. United States Forest Serv., 630 F.3d 1173, 1179

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(9th Cir. 2011) (en banc) (citations omitted). Here, Intervenors allege that many of them own
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significant amounts of land within the current range of the coastal marten, and that this land would

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be affected by decisions regarding the treatment of the marten’s habitat. ECF No. 14-15. They

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further allege that they have contract interests, in particular timber sale contracts involving the

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land affected by this case. Id. at 15-16. Intervenors also claim that they have “ongoing use

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interests” in the areas occupied by the marten, such as in avoiding the dangers of fire risk from

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reduced management. Id. at 16-17. Finally, the two counties participating in the motion to

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intervene, Siskiyou and Douglas County, both argue they have economic interests at stake,

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including revenue from timber sales, job growth, and value derived from the presence of the

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timber industry. Id. at 17-18.

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With regards to the third factor, Intervenors argue their ability to protect the above interests

United States District Court
Northern District of California

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may be impaired without intervention, pointing to Plaintiffs’ allegations that “ongoing logging” is

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one of the reasons the costal marten should be listed under the ESA. ECF No. 13 at 19. As a

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result, Plaintiffs’ requested relief would likely affect the availability of timber resources and

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harvesting. See id.

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Finally, Intervenors suggest that the USFW may not adequately represent Intervenors’

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interests. Intervenors’ burden “in showing inadequate representation is minimal: it is sufficient to

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show that representation may be inadequate.” Forest Conservation Council v. U.S. Forest Serv.,

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66 F.3d 1489, 1498 (9th Cir. 1995) (citations omitted), abrogated on other grounds by Wilderness

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Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011). Intervenors contend they have “strong

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interests in maintaining employment and community stability in the places they operate, which are

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not the focus of the federal defendants’ concerns.” ECF No. 13 at 21 (citing to Forest

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Conservation Council, 66 F.3d at 1499 (“Inadequate representation is most likely to be found

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when the applicant asserts a personal interest that does not belong to the general public.”)).

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In light of Intervenors’ arguments and the lack of any opposition by Plaintiffs, the Court
concludes Intervenors may intervene pursuant to Fed. R. Civ. P. 24.
Plaintiffs’ Requested Restrictions

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B.

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The Court turns next to Plaintiffs’ request that it subject Intervenors to two restrictions.

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ECF No. 31 at 1. Other courts have held that “[a]n intervention of right under the amended rule
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may be subject to appropriate conditions or restrictions responsive among other things to the

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requirements of efficient conduct of the proceedings.” San Juan Cty., Utah v. United States, 503

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F.3d 1163, 1189 (10th Cir. 2007) (quoting Fed. R. Civ. P. 24, Advisory Committee notes to the

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1966 Amendment). Here, the Court concludes neither requested restriction is appropriate at this

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time.

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Restriction on Seeking Discovery and Introduction of Record Evidence

Plaintiffs first urge that “[I]ntervenors should be prohibited from seeking to discover or
otherwise introduce any extra-record evidence in this administrative record review case.” Id. at 2.

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Relying on San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 992 (9th Cir. 2012)

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and other case law, they argue that the Court’s review of agency action should be limited to the

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United States District Court
Northern District of California

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administrative record, and therefore that “prohibiting [I]ntervenors from seeking to introduce

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evidence not contained in the federal defendants’ administrative record is appropriate.” ECF No.

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31 at 2. Intervenors respond that “[w]ith the record not yet lodged, it is premature to determine

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whether the record should be supplemented.” ECF No. 42 at 5.

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It is true that under the Administrative Procedure Act (“APA”), a court’s review of agency

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action is generally limited to the administrative record. San Luis, 776 F.3d at 992 (citation

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omitted); See also Fence Creek Cattle Co. v. U.S.F.S., 602 F.3d 1125, 1131 (9th Cir. 2010)

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(“Generally, judicial review of an agency decision is limited to the administrative record on which

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the agency based the challenged decision.”). The Ninth Circuit has explained that “[t]his rule

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ensures that the reviewing court affords sufficient deference to the agency’s action.” San Luis,

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776 F.3d at 992. Plaintiffs neglect to mention, however, that there are several exceptions to this

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rule. A reviewing court may consider extra-record evidence where admission of that evidence

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“(1) is necessary to determine whether the agency has considered all relevant factors and has

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explained its decision, (2) is necessary to determine whether the agency has relied on documents

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not in the record, (3) when supplementing the record is necessary to explain technical terms or

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complex subject matter, or (4) when plaintiffs make a showing of agency bad faith.” San Luis,

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776 F.3d at 992 (9th Cir. 2014) (citation omitted).

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Outside of reference to this general standard of review, Plaintiffs offer no further support
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for their request to prevent Intervenors from introducing extra-record evidence. The request is

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therefore denied. To the extent that Plaintiffs seek simply to ensure that Intervenors rely only on

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the administrative record absent a showing of some exception, no order by this Court is required,

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since all parties must follow this rule. To the extent that Plaintiffs seek to prevent Intervenors

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from arguing for an extra-record exception while the other parties remain able to do so, they have

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demonstrated no justification for this prohibition. Rather, any party that seeks to introduce

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evidence outside of the administrative record must satisfy the narrowly construed exceptions

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referenced above.

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2.

Limiting Intervenors to Filing a Single Brief

Plaintiffs assert that “[I]ntervenors should be restricted to filing a single brief during the

United States District Court
Northern District of California

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summary judgment proceedings; specifically, a brief in opposition to plaintiffs’ motion for

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summary judgment.” ECF No. 31 at 3. Plaintiffs argue that because the case will likely be

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resolved by summary judgment, restricting Intervenors to filing a single brief in opposition to

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Plaintiffs’ motion for summary judgment will avoid undue prejudice to Plaintiffs and ensure an

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orderly resolution of this case. Id. Intervenors contest that limiting their ability to participate is

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inconsistent with the policies underlying Rule 24. ECF No. 42 at 6.

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Plaintiffs’ second request is also denied. Though they refer generally to “undue prejudice”

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and “orderly resolution,” they have not demonstrated why it is necessary to limit Intervenors to a

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single brief, or what prejudice will occur if Intervenors are not so limited. The briefing schedule

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for the case has been set out by the separate Scheduling Order issued by the Court. ECF No. 48.
CONCLUSION

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For the reasons set forth above, the Court grants Intervenors’ Motion to Intervene.
Plaintiffs’ requested restrictions on intervention are denied.
IT IS SO ORDERED.
Dated: April 7, 2016
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JON S. TIGAR
United States District Judge

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