Water Supply and Storage Company, The v. United States Department of Agriculture et al

Filing 19

ORDER granting 17 CTU's Motion to Intervene, subject to limitations, by Judge John L. Kane on 1/26/12.(gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 11-cv-02896-JLK
THE WATER SUPPLY AND STORAGE COMPANY,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE,
TOM VILSAK, in his official capacity as Secretary of the United States Department of
Agriculture,
MARIBETH GUSTAFSON, in her official capacity as Regional Forester for the Rocky
Mountain Region of the United States Department of Agriculture Forest Service,
GLENN P. CASAMASSA, in his official capacity as Forest Supervisor of the Arapaho and
Roosevelt National Forest and Pawnee National Grassland, United States Department of
Agriculture Forest Service,
UNITED STATES DEPARTMENT OF INTERIOR,
KEN SALAZAR, in his official capacity as Secretary of the United States Department of
Interior,
UNITED STATES PARK SERVICE,
JOHN WESSELS, in his official capacity as Director, Intermountain Region, United States
National Park Service,
Defendants,
and,
COLORADO TROUT UNLIMITED,
Proposed Defendant Intervenor.

ORDER
Kane, J.
This matter is currently before me on Proposed Defendant Intervenor Colorado Trout
Unlimited’s (“CTU”) Unopposed Motion to Intervene as Defendant (doc. 17). After carefully
considering the Motion and applicable legal authorities, I find that CTU has satisfied the

1

requirements of Fed. R. Civ. P. 24(a)(2), and CTU’s Motion is GRANTED. The clerk shall enter
CTU’s Proposed Answer (doc. 17-6) as CTU’s Answer.
BACKGROUND
Since Water Supply and Storage Company’s (“WSSC”) permit to use the Long Draw
Reservoir and Dam (“LDR”) first expired in 1994, the federal defendants, WSSC, and CTU have
been involved in protracted negotiations regarding the terms of WSSC’s future permit to operate
the LDR. Following CTU’s successful challenge of a 1994 easement granted by the Forest
Service for WSSC’s continued operation of the LDR, the Forest Service issued its Record of
Decision on the LDR. It is that Record of Decision, specifically the Forest Service’s decision to
condition the permit for the LDR on the Greenback Cutthroat Trout Restoration Project (“GBCT
Restoration Project”), that forms the basis for WSSC’s challenge.
Claiming that the Forest Service’s decision to condition the LDR permit on the GBCT
Restoration Project exceeds the government’s authority under, and erroneously interprets, the
Federal Lands Policy and Management Act of 1976’s requirement that damage to the land be
minimized, WSSC filed suit on November 7, 2011. On January 9, 2012, the federal defendants
filed their Answer to WSSC’s Amended Complaint (doc. 14), and on January 12, 2012, CTU filed
its Unopposed Motion to Intervene as Defendant (doc. 17).
ANALYSIS
In order to intervene as a matter of right, CTU must establish the following: (1) its motion
was timely; (2) it has an interest relating to the LDR permit; (3) the disposition of this litigation
may, as a practical matter, impair or impede CTU’s interest relating to the LDR permit; and (4)
neither the federal defendants nor WSSC adequately represent CTU’s interest. See WildEarth

2

Guardians v. Nat’l Park Serv., 604 F.3d 1192, 1198 (10th Cir. 2010). When analyzing these
factors and deciding whether CTU’s intervention is proper, my central concern is the practical
effect of this litigation on CTU and its interest. See San Juan Cnty. v. United States, 503 F.3d
1163, 1193 (10th Cir. 2007). In the Tenth Circuit, this test has been liberally interpreted in favor
of intervention. See, e.g., Utahns for Better Transp. v. U.S. Dep’t of Transp., 295 F.3d 1111,
1115 (10th Cir. 2002) (quoting Coalition of Ariz./N.M. Counties for Stable Econ. Growth v. Dep’t
of Interior, 100 F.3d 837, 840 (10th Cir. 1996)).
Applying these factors and considerations here, I find that CTU has met its burden and
should be permitted to intervene as a defendant. As a threshold matter, CTU’s motion is timely;
it was filed only three days after the federal defendants filed their answer and before the parties
have filed their Joint Case Management Plan. Second, CTU has adequately established that it has
an interest in the subject matter of this litigation. CTU has interests in the health of the watershed
in question and the in restoration of the greenback cutthroat trout, both of which are implicated by
the LDR permit. Such environmental concerns are “indisputably” legally protectable interests.
See WildEarth Guardians, 604 F.3d at 1198 (citing San Juan Cnty., 295 F.3d at 1199). In
addition, disposing of the action has the potential of impairing CTU’s ability to protect these
interests. Finally, CTU’s interests are not adequately represented by the federal defendants;
although the government’s interest is related to those of CTU, their interests are not identical. See
Utah Ass’n of Counties v. Clinton, 255 F.3d 1246, 1255-56 (10th Cir. 2001). Thus, because CTU
has established each of the factors under Rule 24(a)(2), it is entitled to intervene in this litigation
as a matter of right.
CTU’s intervention, however, is not without limitation. Rule 24(a)(2)’s “reference to

3

practical consideration in determining whether an applicant can intervene implies that those same
considerations can justify limitations on the scope of intervention.” San Juan Cnty., 503 F.3d at
1189. “[I]ntervention of right under the amended rule may be subject to appropriate
considerations or restrictions responsive among other things to the requirements of efficient
conduct of the proceedings.” Id. (quoting Fed. R. Civ. P. 24 Advisory Committee Notes (1966
Amendment)).
Therefore, the federal defendants’ counsel and CTU’s counsel must confer before filing
any motion, responsive filing, or brief to determine whether their positions may be set forth in a
consolidated fashion. CTU may file separate motions, responsive filings, or briefs only to raise
arguments or issues the federal agencies decline to raise in their filings. Moreover, any separate
filings must include a Certificate of Compliance with the condition requiring CTU to confer with
counsel for defendants before filing, and a statement that the issues raised are not adequately
covered by the defendants’ position.
CONCLUSION
In sum, CTU’s Motion to Intervene is granted pursuant to Fed. R. Civ. P. 24(a)(2), but its
intervention is subject to the above limitations.

Dated: January 26, 2012

BY THE COURT:
s/John L. Kane
Senior U.S. District Judge

4