American Tradition Institute et al v. State of Colorado, The et al

Filing 96

ORDER Interwest Energy Alliances Motion to Intervene ECF No. 73 is GRANTED; Interwest Energy Alliances proposed Answer ECF No. [73-2] is ACCEPTED AS FILED. The Clerk shall docket the proposed Answer; Solar Energy Industries Associations Motion to Intervene ECF No. 75 is GRANTED; Solar Energy Industries Associations proposed Answer ECF No. [75-3] is ACCEPTED AS FILED. The Clerk shall docket the proposed Answer; and The Clerk shall amend the caption of this case to reflect that Solar Energy Industries Association and Interwest Energy Alliance are Intervenors-Defendants in this action. By Judge William J. Martinez on 10/26/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-00859-WJM-BNB
AMERICAN TRADITION INSTITUTE,
AMERICAN TRADITION PARTNERSHIP, and
ROD LUECK,
Plaintiffs,
v.
JOSHUA EPEL,
JAMES TARPEY, and
PAMELA PATTON, in their official capacities as Commissioners of the Colorado Public
Utilities Commission,
Defendants,
and
ENVIRONMENT COLORADO,
COLORADO ENVIRONMENTAL COALITION,
SIERRA CLUB, and
THE WILDERNESS SOCIETY,
Intervenor-Defendants,
and
SOLAR ENERGY INDUSTRIES ASSOCIATION, and
INTERWEST ENERGY ALLIANCE,
Proposed Intervenor-Defendants.

ORDER GRANTING PROPOSED INTERVENOR-DEFENDANTS’
MOTIONS TO INTERVENE

In this declaratory judgment action, Plaintiffs American Tradition Institute,
American Tradition Partnership, and Rod Lueck ask the Court to declare that

Colorado’s Renewable Energy Standard Act (“RES”), Colo. Rev. Stat. § 40-2-124,
violates Article I, Section 8 of the United States Constitution.
Before the Court are the following motions: (1) Interwest Energy Alliance’s
Motion to Intervene (ECF No. 73); and (2) Solar Energy Industries Association’s Motion
to Intervene (ECF No. 75). As both Motions to Intervene (“Motions”) raise the same
arguments and both parties are seeking to intervene as Defendants, the Court will
address the Motions together. The Court will refer to Interwest Energy Alliance and
Solar Energy Industries Association as the “Movants”.
For the reasons set forth below, the Motions are granted.
I. LEGAL STANDARD
Federal Rule of Civil Procedure 24(a)(2) provides that, on timely motion, the
court must permit intervention as of right to anyone who:
[C]laims 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.
Fed.R.Civ.P. 24(a)(2). Under Tenth Circuit law interpreting this rule, “an applicant may
intervene as a matter of right if (1) the application is timely, (2) the applicant claims an
interest relating to the property or transaction which is the subject of the action, (3) the
applicant's interest may be impaired or impeded, and (4) the applicant’s interest is not
adequately represented by existing parties.” Elliott Indus. Ltd. P'ship v. B.P. Am. Prod.
Co., 407 F.3d 1091, 1103 (10th Cir. 2005).
Federal Rule of Civil Procedure 24(b)(1)(B) provides that, on timely motion, the
court may permit intervention to anyone who “has a claim or defense that shares with
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the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). The
decision whether or not to grant a motion for permissive intervention under Rule 24(b) is
within the district court’s sound discretion. See, e.g., City of Stilwell v. Ozarks Rural
Elec. Co-op. Corp., 79 F.3d 1038, 1043 (10th Cir. 1996). In exercising this discretion,
“the court must consider whether the intervention will unduly delay or prejudice the
adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).
II. ANALYSIS
Movants seek to intervene both as a matter of right under Rule 24(a) and
permissively under Rule 24(b). (ECF No. 73 at 4; ECF No. 75 at 4.) Because the Court
will exercise its discretion and allow the Movants to intervene under Rule 24(b), it need
not address whether Movants are entitled to intervene as a matter of right. See Lower
Arkansas Valley Water Conservancy Dist. v. United States, 252 F.R.D. 687, 690 (10th
Cir. 2008).
Permissive intervention requires that the would-be intervenor have a “claim or
defense that shares with the main action a common question of law or fact.” Fed. R.
Civ. P. 24(b)(1)(B). This case is solely about the constitutionality of RES. (Am. Compl.
(ECF No. 12).) Movants seek to defend the constitutionality of the RES, which is the
same defense the Government and the Intervenors1 have raised. (ECF No. 73 at 12;
ECF No. 75 at 10-11.) Accordingly, the Court finds that Movants have a defense in
common with the existing parties.

1

The Court previously permitted Environment Colorado, Colorado Environmental
Coalition, Sierra Club, and The Wilderness Society to intervene as Defendants in this action
based on arguments very similar to those raised in the instant Motions. (ECF No. 51.)

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The Court also finds that the current Defendants cannot adequately represent
the interests of the Movants. See National Farm Lines v. Interstate Commerce
Comm’n, 564 F.2d 381, 384 (10th Cir. 1977) (“an agency seeking to protect both the
public interest and the interest of a private intervenor undertakes a task which is on its
face impossible.”); see also Dimond v. District of Columbia, 792 F.2d 179, 192-93 (D.C.
Cir. 1986) (noting that “a governmental entity charged by law with representing the
public interest of its citizens might shirk its duty were it to advance the narrower interest
of a private entity.”).
Finally, the Court finds that allowing Movants to intervene would not cause
undue delay or prejudice the existing parties. See Fed. R. Civ. P. 24(b)(3).
The Tenth Circuit has held that Rule 24 is to be construed liberally in favor of
intervention. Utahns for Better Transp. v. United States Dep’t of Trans., 295 F.3d 1111,
1115 (10th Cir. 2002). The Court notes that Plaintiffs have not opposed these Motions
to Intervene. In this case, the Court finds that Movants’ request to intervene is timely,
that Movants have a defense with facts common to existing parties, and that allowing
intervention will not unduly delay these proceedings or cause undue prejudice to the
existing parties. Accordingly, the Motion to Intervene is granted.
III. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Interwest Energy Alliance’s Motion to Intervene (ECF No. 73) is GRANTED;

2.

Interwest Energy Alliance’s proposed Answer (ECF No. 73-2) is ACCEPTED AS
FILED. The Clerk shall docket the proposed Answer;

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3.

Solar Energy Industries Association’s Motion to Intervene (ECF No. 75) is
GRANTED;

4.

Solar Energy Industries Association’s proposed Answer (ECF No. 75-3) is
ACCEPTED AS FILED. The Clerk shall docket the proposed Answer; and

5.

The Clerk shall amend the caption of this case to reflect that Solar Energy
Industries Association and Interwest Energy Alliance are Intervenors-Defendants
in this action.
Dated this 26th day of October, 2012.
BY THE COURT:

William J. Martínez
United States District Judge

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