Idaho Conservation League v. U.S. Forest Service
Filing
22
MEMORANDUM DECISION AND ORDER - NOW THEREFORE IT IS HEREBY ORDERED, that the motion to intervene (docket no. 6 ) is GRANTED IN PART AND DENIED IN PART. It is granted to the extent it seeks permissive intervention for remedy issues only. It is denied in all other respects. 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 (cjs)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
IDAHO CONSERVATION LEAGUE,
Plaintiff,
Case No. 1:18-CV-044-BLW
v.
MEMORANDUM DECISION
AND ORDER
U.S. FOREST SERVICE,
Defendant.
INTRODUCTION
The Court has before it a motion to intervene filed by the Salmon Headwaters
Conservation Association (SHWCA). The motion is fully briefed and at issue. For the
reasons explained below, the Court will grant the motion in part, allowing SHWCA to
intervene for remedy purposes, and deny the remainder of the motion.
LITIGATION BACKGROUND
Plaintiff Idaho Conservation League (ICL) seeks to compel the Forest Service to
consult with NOAA and the Fish and Wildlife Service (FWS) over the adverse effects on
fish species listed under the Endangered Species Act (ESA). ICL is concerned that
irrigation diversions are harming protected fish species, and that the Forest Service is
shirking its duty under the ESA to complete the consultation on this danger that it started
years ago on this danger.
Memorandum Decision & Order – page 1
In 2001, the Forest Service prepared a Biological Assessment (BA) for 23
irrigation diversions in the Sawtooth Valley and found that 21 of these diversions were
likely to adversely affect protected fish species and their habitat. The Forest Service
submitted the BA to NOAA and FWS, in an effort to initiate consultation under § 7 of the
ESA. That consultation, ICL alleges, was never completed although the Forest Service
continues to authorize the diversions to be used, harming protected species such as
sockeye salmon, Chinook salmon, steelhead, bull trout, and their habitat. ICL’s
Complaint seeks to compel the Forest Service to initiate and complete § 7 consultations
for the 23 diversions, and to adopt any interim measures necessary to protect fish and fish
habitat during consultation.
ANALYSIS
A motion to intervene as a matter of right under Fed. R. Civ. P. 24(a)(2), is
analyzed under a four-part test:
(1) the motion must be timely; (2) the applicant must claim 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.
Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011). The court is
guided by “practical and equitable considerations” and construes the Rule “broadly in
favor of proposed intervenors.” U.S. v. City of Los Angeles, 288 F.3d 391, 397 (9th Cir.
2002). While the standard is liberal, the applicant bears the burden of showing that each
of the four elements is met. Freedom from Religion Foundation, Inc. v. Geithner, 644
Memorandum Decision & Order – page 2
F.3d 836, 841 (9th Cir. 2011). Failure to satisfy any one of the requirements is fatal to the
application. Id.
SHWCA’s application is timely, and it has a significant protectable interest
relating to the water rights of its members. The ultimate remedy sought by ICL could as
a practical matter impair or impede SHWCA’s ability to protect those water rights. The
real issue here is whether SHWCA has satisfied the fourth factor – that SHWCA’s
interests are inadequately protected by the Forest Service. To resolve 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.
Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 822 (9th Cir. 2001). The
prospective intervenor must demonstrate that the existing parties may not adequately
represent its interest. Id. However, only a “minimal” showing is needed. Id. 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. Where the present party and proposed intervenor share the
same “ultimate objective,” a presumption of adequacy of representation applies, and the
proposed intervenor can rebut that presumption only with a “compelling showing” to the
contrary. Geithner, supra, 644 F.3d at 841.
On the liability portion of this case, the sole issue is whether the Forest Service has
a duty under § 7 of the ESA to complete its consultation with NOAA and FWS. On this
liability issue, the ultimate objective of both the Forest Service and SHWCA is to obtain
Memorandum Decision & Order – page 3
a ruling that the Forest Service has no such duty. Thus, a presumption arises that the
Forest Service will adequately protect the interests of SHWCA on this liability issue, and
SHWCA must make a compelling showing to overcome that presumption. SHWCA has
not made that compelling showing for intervention on the liability issue. That issue will
be resolved solely as a question of law concerning the scope of the Forest Service’s duty
of consultation under § 7 of the ESA. The Forest Service has indicated in its Answer that
it has no such duty, and SHWCA would essentially just be “piling on” if allowed to
intervene in the liability phase, offering nothing of additional value. SHWCA is
concerned, however, that the agency might reverse course, agree that it has such a duty,
and enter into a settlement of the liability phase. But that would make no difference –
SHWCA is seeking to intervene as a defendant and cites nothing giving it authority to
make arguments on behalf of the Forest Service that the agency has itself rejected.
For these reasons, the Court will deny that portion of the motion seeking to
intervene on the liability issue. The Court will, however, allow SHWCA to intervene on
the remedy issues. If ICL is successful in compelling the Forest Service to consult with
NOAA and FWS, ICL will argue that certain interim measures should be imposed on the
23 diversions. During litigation over these interim remedies, and any later remedies,
SHWCA may have different interests than the Forest Service and hence may not be
adequately protected by the agency. Thus, the Court will allow intervention for remedy
purposes only.
Memorandum Decision & Order – page 4
In conclusion, the Court will grant the motion to intervene in part. The Court will
allow SHWCA to intervene permissively on the remedy issues, but will deny the motion
in all other respects.
ORDER
In accordance with the Memorandum Decision above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to intervene
(docket no. 6) is GRANTED IN PART AND DENIED IN PART. It is granted to the
extent it seeks permissive intervention for remedy issues only. It is denied in all other
respects.
DATED: June 22, 2018
_________________________
B. Lynn Winmill
Chief U.S. District Court Judge
Memorandum Decision & Order – page 5
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