Natural Resources Defense Council et al v. Gina McCarthy et al
Filing
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ORDER GRANTING MOTION TO INTERVENE by Judge Jon S. Tigar; granting 45 Motion to Intervene. (wsn, COURT STAFF) (Filed on 11/3/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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NATURAL RESOURCES DEFENSE
COUNCIL, et al.,
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Plaintiffs,
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GINA MCCARTHY, et al.,
Re: ECF No. 45
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. 16-cv-02184-JST
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Before the Court is a Motion to Intervene, filed by the San Joaquin Tributaries Authority.
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ECF No. 45. Defendants have stated that they do not oppose intervention. ECF No. 49. Plaintiffs
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oppose the motion. ECF No. 50. The Court grants the motion.
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I.
BACKGROUND
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This case involves revisions to water quality standards adopted by the California State
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Water Resources Control Board from 2014 through 2016 in response to drought conditions in
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California and affecting the Sacramento San Joaquin Delta. ECF No. 1 (“Compl.”) ¶¶ 1, 43-51;
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ECF No. 45 at 8-9. The Natural Resources Defense Council, Bay.org d/b/a The Bay Institute, and
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Defenders of Wildlife (collectively, “Plaintiffs”) allege that the Delta “serves as [a] critical habitat
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to a broad array of fish and wildlife.” Compl. ¶ 3. The revisions reduced river flows, increased
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the proportion of water exported out of the Delta, allowed higher salinity water to enter the Delta,
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and weakened restrictions on when the Delta cross-channel gates could be opened. Id. ¶¶ 6-7, 9.
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Plaintiffs allege that the resulting poor water quality has contributed to “severe adverse impacts”
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on fish and wildlife species. Id. ¶ 8. Plaintiffs bring this suit against Gina McCarthy, in her
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official capacity as Administrator of the United States Environmental Protection Agency (“EPA”),
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and Jared Blumenfeld, in his official capacity as Regional Administrator of the EPA Region IX,
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(collectively, “Defendants”) for failure to comply with their duty under the Clean Water Act to
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review a state’s revisions to water quality standards. Id. ¶ 1; see 33 U.S.C. § 1313(c). Plaintiffs
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request declaratory and injunctive relief. Compl. ¶ 1. The San Luis & Delta-Mendota Water
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Authority and Westlands Water District (“SLDMWA/Westlands”) moved to intervene on May 4,
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2016, approximately two weeks after the complaint was filed. ECF No. 10. This Court granted
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their motion, finding that they were entitled to intervention as a matter of right. ECF No. 37 at 1,
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3.
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The San Joaquin Tributaries Authority (“Proposed Intervenors”) moved to intervene on
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August 10, 2016, and requests that the Court take judicial notice of certain documents. ECF Nos.
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45, 45-2. Their motion to intervene alleges that the challenged revisions were “temporary urgency
change orders” that provided for “temporary relief” from meeting certain conditions for water
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United States District Court
Northern District of California
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right permits but did not alter the water quality control plan for the San Francisco Bay-
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Sacramento/San Joaquin Delta Estuary (“Bay-Delta Plan”). ECF No. 45 at 9. Due to the ongoing
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drought, the California Governor had issued proclamations and executive orders directing the
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State Water Resources Control Board (“Board”) to “consider modifying requirements for reservoir
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releases or diversion limitations, where existing requirements were established to implement a
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water quality control plan.” Id. at 7-8. Subsequently, the California Department of Water
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Resources (“DWR”) and United States Bureau of Reclamation (“USBR”), which operate water
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facilities controlling water flow into, through, and out of the Delta, filed “Temporary Urgency
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Change Petitions” to request that the Board temporarily relax conditions of their water right
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permits in order to conserve water. Id. at 8. The Board approved in part and denied in part these
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petitions. Id. at 9. Proposed Intervenors contend that Plaintiffs conflated the “temporary changes”
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with “amendments” to water quality standards, and that only the latter would require EPA review
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under the Clean Water Act. Id. at 11.
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Proposed Intervenors are senior water right holders on the Stanislaus and Tuolumne
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Rivers, tributaries to the San Joaquin River, with their water rights predating those held by the
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DWR and USBR. Id. at 10. Proposed Intervenors are currently not responsible for meeting the
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water requirements under the Bay-Delta Plan. Id. However, the Board has released draft changes
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to the Bay-Delta Plan that would impose minimum flow requirements on the tributaries to the San
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Joaquin River, which would affect Proposed Intervenors’ water rights, and Proposed Intervenors
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allege that the Board will include these requirements in future revisions. Id.
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II.
JURISDICTION
This Court has jurisdiction over this action pursuant to 33 U.S.C. § 1365(a) and 28 U.S.C.
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§ 1331, as an action arising under the laws of the United States.
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III.
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REQUESTS FOR JUDICIAL NOTICE
Proposed Intervenors request that the Court take judicial notice, pursuant to Federal Rule
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of Evidence 201, of documents reflecting official acts of the executive branch of the United States,
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records of state agencies, and public records available from government agency websites. ECF
No. 45-2. Federal Rule of Evidence 201(b) states that a court “may judicially notice a fact that is
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United States District Court
Northern District of California
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not subject to reasonable dispute because it: (1) is generally known within the trial court’s
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territorial jurisdiction; or (2) can be accurately and readily determined from sources whose
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accuracy cannot reasonably be questioned.”
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The Court grants Proposed Intervenors’ requests for judicial notice. First, Proposed
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Intervenors request that the Court take judicial notice of the following documents: (1) “A
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Proclamation of a State of Emergency” signed by California Governor Edmund G. Brown, dated
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January 17, 2014; (2) “A Proclamation of a Continued State of Emergency” signed by California
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Governor Edmund G. Brown, dated April 25, 2014; and (3) Executive Order B-28-14, issued by
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California Governor Edmund G. Brown, dated December 22, 2014. Plaintiffs have not filed an
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opposition to this request. The Court takes judicial notice of these documents because they
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“reflect[] official acts of the executive branch of the United States.” Suelen v. Wells Fargo Bank,
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N.A., No. C-13-002, 2013 WL 1320697, at *5 (N.D. Cal. Apr. 1, 2013).
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Second, Proposed Intervenors request that the Court take judicial notice of the following
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documents: (1) Temporary Urgency Change Petition filed by the DWR and USBR with the Board,
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dated January 29, 2014; (2) Temporary Urgency Change Petition filed by the DWR and USBR
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with the Board, dated January 23, 2015; and (3) Temporary Urgency Change Petition filed by the
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DWR and USBR with the Board, dated March 24, 2015. Plaintiffs have not filed an opposition to
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this request. The Court takes judicial notice of these documents because they are “records of state
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agencies, and therefore appropriate subjects of judicial notice.” Minor v. FedEx Office & Print
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Servs., Inc., 78 F. Supp. 3d 1021, 1027-28 (N.D. Cal. 2015).
Third, Proposed Intervenors request that the Court take judicial notice of the following
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documents: (1) the Board’s Water Rights Decision 1641, revised March 15, 2000; (2) Order of the
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Board dated Februrary 3, 2015, approving in part and denying in part, the Temporary Urgency
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Change Petition filed by the DWR and the USBR on January 23, 2015; (3) Revised Order of the
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Board dated March 5, 2015, modifying the Order of the Board dated February 3, 2015; and (4)
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Order of the Board dated April 6, 2015, modifying an Order of the Board dated March 5, 2015.
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Plaintiffs have not filed an opposition to this request. The Court takes judicial notice of these
documents because they are matters of public record available on a governmental agency website
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United States District Court
Northern District of California
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(the Board’s website), and they therefore are capable of ready and accurate determination and are
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from a reliable source.
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IV.
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MOTION TO INTERVENE
Proposed Intervenors have moved both for intervention as a matter of right and permissive
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intervention. Because the Court concludes they are entitled to intervention as a matter of right,
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this order does not address permissive intervention.
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A.
Legal Standard
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Federal Rule of Civil Procedure 24(a)(2) provides for intervention as a matter of right
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where the potential intervenor “claims an interest relating to the property or transaction that is the
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subject of the action, and is so situated that disposing of the action may as a practical matter
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impair or impede the movant’s ability to protect its interest, unless existing parties adequately
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represent that interest.” The Ninth Circuit has summarized the requirements for intervention as of
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right under Rule 24(a)(2) as follows:
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(1) [T]he [applicant’s] motion must be timely; (2) the applicant must have
a “significantly protectable” interest relating to the property or transaction
which is the subject of the action; (3) the applicant must be so situated that
the disposition of the action may as a practical matter impair or impede its
ability to protect that interest; and (4) the applicant’s interest must be
inadequately represented by the parties to the action.
Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836, 841 (9th Cir. 2011) (quoting
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California ex rel. Lockyer v. United States, 450 F.3d 436, 440 (9th Cir. 2006)). Proposed
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intervenors must satisfy all four criteria, and “[f]ailure to satisfy any one of the requirements is
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fatal to the application.” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir.
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2009). In evaluating motions to intervene, “courts are guided primarily by practical and equitable
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considerations, and the requirements for intervention are broadly interpreted in favor of
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intervention.” United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004). “Courts are
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to take all well-pleaded, nonconclusory allegations in the motion to intervene, the proposed
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complaint or answer in intervention, and declarations supporting the motion as true absent sham,
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frivolity or other objections.” Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th
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United States District Court
Northern District of California
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Cir. 2001).
B.
Discussion
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Timeliness
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Plaintiffs do not dispute that Proposed Intervenors’ motion—filed only a few months after
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the Complaint, before Defendants have filed their answer, and before any substantive orders have
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been issued—is timely. ECF No. 45 at 12; see ECF No. 50 at 5. The Court concludes the
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Proposed Intervenors’ motion is timely.. See Alisal, 370 F.3d at 921 (stating that the timeliness
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determination is based on the stage of the proceeding, the prejudice to other parties, and the reason
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for and length of delay).
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2.
Protectable Interest
“Rule 24(a)(2) does not require a specific legal or equitable interest,” and it is “generally
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enough that the interest is protectable under some law, and that there is a relationship between the
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legally protected interest and the claims at issue.” Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d
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1173, 1179 (9th Cir. 2011) (citations omitted).
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Proposed Intervenors contend that they have “legally protectable interests” in the form of
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“appropriative water rights.” ECF No. 45 at 13. They cite to Casitas Municipal Water District v.
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United States for the proposition that “appropriative water rights . . . have long been recognized by
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California courts as private property subject to ownership and disposition.” 708 F.3d 1340, 1354
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(Fed. Cir. 2013).
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Proposed Intervenors acknowledge that existing water quality control plans do not impose
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any requirements on them, and therefore that the changes challenged by Plaintiffs do not directly
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impact their interests. ECF No. 45 at 10. Nonetheless, Proposed Intervenors allege that the Board
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has indicated that an updated water quality control plan will impose minimum flow requirements
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on tributaries to the San Joaquin River, which would affect Proposed Intervenors. Id. at 13; ECF
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No. 51 at 8. They argue that in the future, they may also wish to seek “temporary relief” from
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these minimum flow requirements, and should Plaintiffs prevail, it would be more difficult to do
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so if they were required to obtain EPA approval. ECF No. 45 at 13-14. Proposed Intervenors
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additionally assert that if Plaintiffs prevail, the USBR may resort to releasing water from its New
Melones facility in order to satisfy requirements at a separate compliance point, and that the
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United States District Court
Northern District of California
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Proposed Intervenors have senior rights to that water. Id. at 14.
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Plaintiffs argue that the “highly speculative chain of events” needed to occur to impact
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Proposed Intervenors does not support intervention. ECF No. 50 at 5. They analogize to the case
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of Montana v. United States Environmental Protection Agency, 137 F.3d 1135, 1138-39 (9th Cir.
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1998), which concerned a challenge to the EPA’s decision to permit Indian tribes to promulgate
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water quality standards, as states do, regulating the discharge of pollutants into water by holders of
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a National Pollutant Discharge Elimination System (“NPDES”) permit. Because none of the
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parties seeking intervention held an NPDES permit, the Ninth Circuit concludes that the litigation
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had “no immediate or any foreseeable, demonstrable effect upon the proposed intervenors.”
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Montana, 137 F.3d at 1141. Plaintiffs argue that here, Proposed Intervenors’ “lack of a ‘permit’ or
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other tangible interest that might actually be impacted” also renders their interest too “tenuous” to
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provide a basis for intervention. ECF No. 50 at 6.
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The Court concludes that Proposed Intervenors have demonstrated their interests are
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significantly protectable and related to this matter. To begin, it does not appear that the Plaintiffs
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dispute that if any of the events described by Proposed Intervenors came to pass, they would have
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an interest in the outcome of the litigation. As Proposed Intervenors note, water rights are “private
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property subject to ownership and disposition” and are a legally protectable interest. ECF No. 45
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at 10; Casitas, 708 F.3d at 1354. The question is therefore whether the likelihood of these events
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occurring is sufficient to support granting intervention.
Viewed in this light, Plaintiffs’ analogy to Montana is misplaced. There, not only did the
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proposed intervenors not hold NPDES permits, but their “uses of the land [were also] not sources
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of emissions regulated by the Clean Water Act,” and thus the litigation had no “foreseeable” effect
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on them. 137 F.3d at 1138, 1141. Here, by contrast, the events described by Proposed Intervenors
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are clearly foreseeable. The outcome of this litigation could affect the ability of the Board to
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revise water quality standards and issue temporary urgency change orders, thus impacting
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Proposed Intervenors’ water rights upon either the Board updating the water quality control plan
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or the USBR releasing water from the New Melones facility. Proposed Intervenors have further
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stated that the Board clearly indicated their updated water quality control plan will impose flow
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United States District Court
Northern District of California
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requirements on tributaries to the San Joaquin River, and on Proposed Intervenors’ water rights.
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ECF No. 45 at 13; ECF No. 51 at 8.
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A more comparable case is Southwest Center for Biological Diversity v. Berg, 268 F.3d
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810 (9th Cir. 2001). In Berg, an agreement between the City of San Diego and other parties was
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challenged for failing to comply with the Endangered Species Act. Id. at 816. The agreement
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gave the City the power to give “Third Party Beneficiary status” to construction projects, which
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prevented the City from imposing additional mitigation or protective measures on those projects.
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Id. at 815-16. Though the projects of the proposed intervenors, a construction company and
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several building trade associations, had not yet attained Third Party Beneficiary status, they were
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in the “pipeline” for approval and “granted assurances” they would receive it. Id. at 820, 822.
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The court concluded that these facts gave the intervenors sufficient legally protectable interests.
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Id. at 820-21. Similarly, Proposed Intervenors are not yet subject to water quality control plans,
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but have demonstrated that they likely will be in the near future. ECF No. 45 at 13; ECF No. 51 at
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8. By the same reasoning, foreseeable obligations give Proposed Intervenors sufficient legally
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protectable interests to support intervention.
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3.
Impairment of Interests
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Rule 24(a)(2) requires that the party seeking intervention is “so situated that disposing of
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the action may as a practical matter impair or impede the movant’s ability to protect its interest.”
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The Ninth Circuit has followed the guidance of Rule 24 advisory committee notes in holding that
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“[i]f an absentee would be substantially affected in a practical sense by the determination made in
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an action, he should, as a general rule, be entitled to intervene.” Berg, 268 F.3d at 822.
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Proposed Intervenors offer two reasons why their interests will be impaired by a decision
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in favor of Plaintiffs. ECF No. 45 at 15. First, if the Board implements the updated water quality
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control plan, as it has indicated it will do, Proposed Intervenors’ ability to seek temporary relief
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from conditions affecting their water rights would be adversely affected. Id. Second, Proposed
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Intervenors allege that if the Board cannot issue temporary urgency change orders, the USBR
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could be required to release water from the New Melones facility in order to satisfy water
requirements, which would affect water rights belonging to Proposed Intervenors. Id. at 15-16. In
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United States District Court
Northern District of California
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response, Plaintiffs assert that Proposed Intervenors’ “interests are not impaired where [they]
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ha[ve] ‘other means’ and ‘alternative forum[s]’ to protect them,” as Proposed Intervenors retain
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the ability to urge the Board to adopt future orders protecting their interests. ECF No. 50 at 8
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(quoting Lockyer, 450 F.3d at 442).
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The Court is persuaded that the disposition of this action may impair or impede Proposed
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Intervenors’ ability to protect their water rights. In its previous order granting SLDMWA/
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Westlands’ motion to intervene, the Court noted that delay in obtaining temporary urgent change
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orders would affect SLDMWA/Westlands’ interests because it could reduce the amount of water
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they could receive out of the quantity to which they are entitled. ECF No. 37 at 6. The same
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holds true here. Plaintiffs’ citation to Lockyer is unavailing. The “other means” and “alternative
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forum” mentioned in that case was a “separate process” that “the district court had set up”
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specifically to approve the types of claims asserted by the proposed intervenors. 450 F.3d at 442.
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Such an established process is a far cry from Plaintiffs’ argument here that Proposed Intervenors,
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like any other party or private citizen, can “urge” the Board to act in a certain way.
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4.
Interests Inadequately Represented by the Parties
“The burden of showing inadequacy of representation is ‘minimal’ and satisfied if the
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applicant can demonstrate that representation of its interests ‘may be’ inadequate.” Citizens for
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Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 898 (9th Cir. 2011) (quoting Arakaki v.
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Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)). Three factors are examined to evaluate adequacy
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of representation: (1) whether the interest of a present party is such that it will “undoubtedly”
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make all of a proposed intervenor’s arguments; (2) whether the present party is “capable and
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willing” to make such arguments; and (3) whether a proposed intervenor would offer any
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“necessary elements” to the proceeding that other parties would neglect. Id.
Proposed Intervenors argue that the EPA does not adequately address their interests
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because it would be the Proposed Intervenors, as water right holders, who would suffer if
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Plaintiffs’ relief is granted, not the EPA. ECF No. 45 at 16. As with the intervenors
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SLDMWA/Westlands, the Court cannot conclude that the EPA will undoubtedly make all of
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Proposed Intervenors’ arguments given the two parties’ distinct interests.
As to whether SLDMWA/Westlands adequately represent Proposed Intervenors’ interests,
United States District Court
Northern District of California
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Proposed Intervenors argue that the “parties’ interests in this case are simply not sufficiently
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aligned.” ECF No. 51 at 14. As SLDMWA/Westlands are customers of the USBR for water
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supplies, a release of water at New Melones by the USBR would in fact likely benefit
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SLDMWA/Westlands. Id. Plaintiffs argue that the parties share interests because both “seek to
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retain the existing [temporary urgency change] process without EPA review.” ECF No. 50 at 8-9.
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But the fact that two parties desire the same outcome in litigation cannot alone defeat intervention
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– such a rule would effectively curtail the mechanism of intervention entirely. The Court
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accordingly finds that the fourth element for intervention as of right is met.
CONCLUSION
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The Court concludes that Proposed Intervenors have met the requirements for intervention
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as of right. It therefore grants the motion without reaching the question of permissive
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intervention.
Plaintiffs request that Proposed Intervenors and SLDMWA/Westlands be required to
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provide joint briefing in order to “avoid delay and duplicative arguments that would prejudice
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Plaintiffs’ ability to obtain a prompt and efficient resolution of its claims.” ECF No. 50 at 10-11.
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Plaintiffs’ request is denied. As noted above, Proposed Intervenors and SLDMWA/Westlands
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may potentially possess diverging interests.
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IT IS SO ORDERED.
Dated: November 3, 2016
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______________________________________
JON S. TIGAR
United States District Judge
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United States District Court
Northern District of California
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