Animal Legal Defense Fund et al v. Otter et al

Filing 48

MEMORANDUM DECISION AND ORDER denying 16 IDA's Motion to Intervene. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF the IDAHO

ANIMAL LEGAL DEFENSE FUND, et
al.,
Plaintiffs,

Case No. 1:14-cv-00104-BLW
MEMORANDUM DECISION AND
ORDER

v.
C.L. BUTCH OTTER, in his official
capacity as Governor of Idaho; and
LAWRENCE WASDEN, in his official
capacity as State of Idaho,
Defendants.

INTRODUCTION
Before the Court is a motion to intervene filed by the Idaho Dairymen’s
Association, Inc. (the “IDA”) (Dkt. 16). The motion is fully briefed and at issue. For the
reasons expressed below, the Court will deny the motion and not allow the applicants to
intervene.

ORDER - 1

BACKGROUND
The Animal Legal Defense Fund, et al1 (collectively, “ALDF”) challenge
Section 18-7042, Idaho Code, as unconstitutional. The ALDF alleges that section 187042 has both the purpose and effect of stifling public debate about modern agriculture
“by (1) criminalizing all employment-based undercover investigations; and (2)
criminalizing investigative journalism, whistleblowing by employees, or other expository
efforts that entail images or sounds.” Compl. ¶ 14, Dkt. 1. Based on these allegations, the
ALDF’s complaint raises two substantive constitutional challenges against the State2 –
violation of the Free Speech Clause of the First Amendment and the Equal Protection
Clause of the Fourteenth Amendment – as well as preemption claims under three
different federal statutes. Id. ¶¶ 144-68.
Proposed Intervenor, the Idaho Dairymen’s Association, is an agricultural trade
association and the driving force behind enactment of section 18-7042. The IDA seeks to
intervene because its members are “a specific target” of the undercover investigations and
videography the law prohibits, and therefore have a special interest in ensuring that “the

1

The other plaintiffs include non-profit organizations People for the Ethical Treatment of
Animals, American Civil Liberties Union of Idaho, Center for Food Safety, Farm Sanctuary, River’s
Wish Animal Sanctuary, Western Watersheds Project, Sandpoint Vegetarians, Idaho Concerned Area
Residents for the Environment, Idaho Hispanic Caucus Institute for Research & Education, and Farm
Forward; the news journal CounterPunch; author and journalist Will Potter; animal agriculture scholar
and historian James McWilliams; investigator Monte Hickman; freelance journalist Blair Koch; and
agricultural investigations expert Daniel Hauff.
2

State defendants include Governor Butch Otter and Attorney General Lawrence Wasden.

ORDER - 2

protections provided by the Idaho Legislature in I.C. § 18-7042” remain in effect. IDA
Opening Br. at 2, Dkt. 16-1.
On the basis of these interests, the IDA seeks intervention as of right and
permissive intervention. The ADLF opposes intervention on the grounds that the State
will adequately protect the IDA’s interests.
LEGAL STANDARD
Rule 24(a) contains the standards for intervention as of right, and it states in
pertinent part as follows:
Upon timely application anyone shall be permitted to intervene in an
action: ... (2) when the applicant claims an interest relating to the property
or transaction which is the subject of the action and the applicant is so
situated that the disposition of the action may as a practical matter impair or
impede the applicant's ability to protect that interest, unless the applicant's
interest is adequately represented by existing parties.
The Circuit has distilled this provision into a four-part test: (1) the application for
intervention must be timely; (2) the applicant must have a “significantly protectable”
interest relating to the property or transaction that 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 the applicant's ability to protect that interest; and (4) the applicant's
interest must not be adequately represented by the existing parties in the lawsuit.
Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th 2001).
In general, the Court must construe Rule 24(a) liberally in favor of potential
intervenors. Id. at 818. Moreover, the Court's evaluation is “guided primarily by practical
ORDER - 3

considerations,” not technical distinctions. Id. However, “[f]ailure to satisfy any one of
the requirements is fatal to the application.” Perry v. Prop. 8 Official Proponents, 587
F.3d 947, 950 (9th Cir. 2009).
ANALYSIS
1. Intervention as a Matter of Right
Challenging the IDA’s motion to intervene as a matter of right, the ALDF focuses
primarily on the fourth factor. The fourth element requires the Court to consider whether
the interests of the applicants may be adequately represented by the State. In resolving
this issue, the Court must consider:
(1) whether the interest of a present party is such that it will undoubtedly
make all the intervenor's arguments; (2) whether the present party is
capable and willing to make such arguments; and (3) whether the would-be
intervenor would offer any necessary elements to the proceedings that other
parties would neglect.
Berg, 268 F.3d at 822. Although courts construe Rule 24(a)(2) broadly in favor of
proposed intervenors, the applicant bears the ultimate burden of demonstrating that the
existing parties may not adequately represent its interest. Id. To meet this burden, the
applicant need only show that representation of its interests by existing parties “may be”
inadequate. Id.
When the party and the proposed intervenor share the same “ultimate objective,”
however, a presumption of adequacy of representation applies. Freedom From Religion
Foundation, Inc. v. Geithner, 644 F.3d 836 (9th Cir. 2011). Such presumption can be
rebutted only by “a compelling showing to the contrary.” Id. An assumption of adequacy
ORDER - 4

also arises when the government is acting on behalf of a constituency that it represents.
Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003). Absent a “very compelling
showing to the contrary, it is assumed that the state adequately represents its citizens
when the proposed intervenor shares the same interest. Id.
Here, both the State and the IDA share the same ultimate objective –ensuring that
the agricultural security act is upheld. Because they share the same ultimate objective, a
presumption of adequate representation arises, which the IDA must rebut.
But the IDA fails to rebut this presumption. The IDA explains that its participation
in this lawsuit is necessary because the IDA “asserts a discrete, personal interest that does
not belong to the general public,” and it has property or financial interests at stake that
create an incentive to make additional arguments that the State may not advance. IDA’s
Opening Br. at 7, Dkt. 16-1. Also, the IDA argues, the State lacks specialized knowledge
and expertise regarding the issues at play, which the IDA possesses. None of these
arguments is convincing.
First, “mere differences in litigation strategy are not enough to justify intervention
as a matter of right.” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 954 (9th
Cir. 2009). So the fact that the State “may take a more cautious, balanced approach as to
issues related to federal preemption and whistleblower protection,” IDA’s Reply at 4, Dkt.
41, is not a compelling showing that overcomes the presumption of adequate
representation. Indeed, a review of the State’s motion to dismiss and supporting briefing
illustrates its intention to mount a vigorous defense of section 18-7042. And there is no
ORDER - 5

reason to believe that Governor Otter and Attorney General Wasden cannot be “counted
on to argue vehemently in favor of the constitutionality of [section 18-7042].” League of
United Latin American Citizens v. Wilson, 131 F.3d 1297, 1306 (9th Cir. 1997). In fact,
the State’s proactive filing of a motion to dismiss and the arguments they have advanced
in support of that motion, suggest precisely the opposite conclusion. Id.
Likewise, the IDA’s professed expertise in the subject of the dispute does not
amount to a compelling showing of inadequate representation by the State. See, e.g.,
Prete v. Bradbury, 438 F.3d 949, 958 -959 (9th Cir. 2006). While the IDA may have
some specialized knowledge regarding section 18-7042 and the protections it affords to
the agricultural industry, it provides no evidence that Governor Otter and Attorney
General Wasden lack comparable expertise. Id. But even if they did, Governor Otter and
Attorney General Wasden “could also acquire additional specialized knowledge through
discovery (e.g.,by calling upon intervenor-defendants to supply evidence) or through the
use of experts.” Id. at 958. “Thus, such a reason is insufficient to provide the ‘compelling
showing’ necessary to overcome the presumption of adequate representation.” Id. at 959.
2. Permissive Intervention
Rule 24(b) allows permissive intervention “when an applicant's claim or defense
and the main action have a question of law or fact in common....” Fed.R.Civ.P. 24(b).
“In exercising its discretion the court shall consider whether the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties.” Id. When a
proposed intervenor has met those requirements, “The court may also consider other
ORDER - 6

ncluding ‘th nature an extent of the intervenors'
he
nd
f
factors in the exercise of its discretion, in
interest” and “whet
”
ther the inte
ervenors’ in
nterests are adequately represented by other
d
parties.’” Perry, 587 F.3d at 95 (quoting Spangler v Pasadena City Bd. o Educ., 55
55
g
v.
a
of
52
F.2d 132 1329 (9t Cir. 1977
26,
th
7)).
The Court fi
T
inds that the IDA meet all the req
e
ts
quirements for permiss
sive
interven
ntion. And th Court do not belie that the IDA’s par
he
oes
eve
e
rticipation w
would delay or
y
prejudice the proceedings. But for the sam reason th Court de
t
me
he
enied the ID
DA’s
applicati to interv
ion
vene as a matter of right, it will d
m
deny its mot
tion for perm
missive
interven
ntion. As described abo the Stat and the I
ove,
te
IDA’s goals in this pro
s
oceeding are
e
identical and the State can ade
l,
equately rep
present thos interests.
se
us
The Court, however, wi grant the IDA amicu curiae st
T
h
ill
e
tatus, if the IDA so
requests.
ORDER
O
T
ERED that the IDA’s Motion to Intervene (
t
(Dkt. 16) is DENIED.
IT IS ORDE

DA
ATED: June 16, 2014
e

___
_________
__________
_______
B. L
Lynn Winm
mill
Chi Judge
ief
Uni
ited States District Court

ORDER - 7