Center for Biological Diversity et al v. Otter et al

Filing 46

MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED, that the motion to intervene 32 is GRANTED pursuant to Rule 24(a)(2). The intervenors must comply with the existing Case Management Order (docket no. 29). 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 (st)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CENTER FOR BIOLOGICAL DIVERSITY,
WESTERN WATERSHEDS PROJECT,
FRIENDS OF THE CLEARWATER, and
WILDEARTH GUARDIANS,

Case No. 1:14-CV-258-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
C.L. “BUTCH” OTTER, Governor of Idaho, in
his official capacity; VIRGIL MOORE,
Director of the Idaho Department of Fish and
Game, in his official capacity; BRAD
CORKILL, FRED TREVEY, BOB
BAROWSKY, MARK DOERR, RANDY
BUDGE, KENNY ANDERSON, and WILL
NAILLON, members of the Idaho Fish and
Game Commission, in their official capacities,
Defendants.

INTRODUCTION
The Court has before it a motion to intervene filed by individual trappers and their
organizations. The motion is fully briefed and at issue. For the reasons expressed below,
the Court will grant the motion.
BACKGROUND
Plaintiffs are environmental groups asking the Court to protect the Canada Lynx, a
threatened species under the Endangered Species Act (ESA). Plaintiffs allege that in
Idaho, trapping of certain wild animals is currently allowed within the range of the Lynx.
Although no trapping of the Lynx is allowed, the Lynx is at times accidentally ensnared
Memorandum Decision & Order – page 1

in those traps and injured or killed as a result. While there are guidelines to reduce these
accidents, the plaintiffs allege that the guidelines are not mandatory and are not included
in the State’s trapping regulations.
Plaintiffs allege that the State is violating the ESA by allowing trapping in Lynx
habitat. They ask that the State change its regulations and obtain an Incidental Take
Permit before allowing any trapping in the Lynx habitat.
The proposed intervenors are trappers (and their organizations) who claim that
they could be adversely affected by changes in the State’s trapping regulations. The
trappers point out that they must obtain permits from the State to engage in trapping, and
allege that this litigation could affect their property rights in those permits. They seek to
protect those property rights by intervening in this action. The plaintiffs’ object, claiming
that the State will protect the trappers’ interests.
LEGAL STANDARD
Rule 24(a) contains the standards for intervention as of right, and it states in
pertinent part as follows:
On timely motion, the court must permit anyone to intervene who: . . . (2)
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.
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,
Memorandum Decision & Order – page 2

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. See
Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir.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
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
There is no contention that the application is untimely. To resolve the second and
third factors—whether the trappers may suffer, as a result of this lawsuit, an impairment
of a “significantly protectable” interest—the Court must follow “practical and equitable
considerations and construe the Rule broadly in favor of proposed intervenors.”
Wilderness Society v. U.S. Forest Service, 630 F.3d 1173, 1179 (9th Cir.2011). The
proposed intervenor must show an “interest protectable under some law” and further
show that “there is a relationship between the legally protected interest and the claims at
issue.” Id. at 1180. A prospective intervenor “has a sufficient interest for intervention
purposes if it will suffer a practical impairment of its interests as a result of the pending
litigation.” Id.
Here, the trappers argue that their interest consists of a property right in their
permits that is protected by law. The relief sought by the plaintiffs could affect those
permits. If the plaintiffs obtain the relief they seek, the State will have to obtain an
Memorandum Decision & Order – page 3

Incidental Take Permit (ITP) from the Environmental Protection Agency. To obtain an
ITP, the State will have to submit a Conservation Plan that describes how the State will
“minimize and mitigate” the impacts on the Lynx from trapping in its habitat. See 16
U.S.C. § 1539(2)(A). This could result in additional regulations on trapping that would
become conditions of the trappers’ permits, making their work more expensive and
difficult. This is sufficient to satisfy the second and third elements that the trappers show
they have a “significantly protectable” interest that could be impaired by this litigation.
See WWP v. U.S., 2011 WL 2690439 (D.Id. 2011) (granting intervention upon showing
that relief might consist of mitigation measures that could have a substantial effect on
permits held by proposed intervenors).
The final criteria for intervention examines whether the trappers’ interests are
already adequately protected 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. The prospective intervenor bears the burden of demonstrating that
the existing parties may not adequately represent its interest. Id. However, the burden of
showing inadequacy is “minimal,” and the applicant need only show that representation
of its interests by existing parties “may be” inadequate. Id. In assessing the adequacy of
representation, the focus should be on the “subject of the action,” not just the particular
issues before the court at the time of the motion. Id.
Memorandum Decision & Order – page 4

Here, although the trappers were not named as defendants, the plaintiffs are
alleging that they are the ones who are trapping Lynx. The trappers have worked their
trap lines in Lynx habitat and may know those areas better than anyone. Thus, the
trappers may have insights that the parties lack. WWP v. U.S., supra at *4 (finding that
cattle ranchers may have special insights into sage grouse habitat on the land they have
ranched for generations). Moreover, it cannot be said that the State will “undoubtedly”
make the trappers’ arguments for them. The State is charged with protecting many
different interests, and it is at least possible that those other interests might trump the
interests of the trappers.
The trappers need only make a “minimal” showing on inadequacy. They have
made that showing. The discussion above shows that they meet all the requirements for
intervention as of right, and the Court will accordingly grant their motion. To ensure
against redundancy, the Court will require counsel for the trappers to take special efforts
to ensure that their briefing and arguments are not redundant with those of the State, and
that page limitations are not bypassed through the splitting up of arguments. Obviously
this direction goes for the four plaintiffs as well.
The plaintiffs argue that intervention, if allowed, should be subject to two
conditions: (1) the trappers must abide by the current Case Management Order, and (2)
they must amend their proposed answer to delete any responses that certain laws or
regulations “speak for themselves.” The Court agrees that the trappers must abide by the
current Case Management Order, but finds that plaintiffs can resolve by motion any
problems with the trappers’ pleadings.
Memorandum Decision & Order – page 5

ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to intervene
(docket no. 32) is GRANTED pursuant to Rule 24(a)(2). The intervenors must comply
with the existing Case Management Order (docket no. 29).

DATED: April 17, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision & Order – page 6