Western Watersheds Project et al v. Zinke et al

Filing 118

MEMORANDUM DECISION AND ORDER. It is hereby ORDERED that Defendant-Intervenors' Joint Motion to Modify Memorandum Decision and Order (Docket No. 84 ) is GRANTED, in part, and DENIED, in part. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

WESTERN WATERSHEDS PROJECT, and
CENTER FOR BIOLOGICAL DIVERSITY,

Case No.: 1:18-cv-00187-REB
MEMORANDUM DECISION AND
ORDER RE: JOINT MOTION TO
MODIFY MEMORANDUM
DECISION AND ORDER

Plaintiffs,
vs.
RYAN K. ZINKE, Secretary of Interior; DAVID
BERNHARDT, Deputy Secretary of Interior; and
UNITED STATES BUREAU OF LAND
MANAGEMENT, an agency of the United States,

(Docket No. 84)

Defendants,
and
STATE OF WYOMING; WESTERN ENGERGY
ALLIANCE
Defendant-Intervenors.
Pending before the Court is Defendant-Intervenor Western Energy Alliance’s (“WEA”)
and Defendant-Intervenor State of Wyoming’s (“Wyoming”) (collectively “DefendantIntervenors”) Joint Motion to Modify Memorandum Decision and Order (Docket No. 84).
Having carefully considered the record and otherwise being fully advised, the Court enters the
following Memorandum Decision and Order:1
DISCUSSION
On August 21, 2018, the Court granted Defendant-Intervenors’ motions to intervene. See
generally 8/21/18 MDO (Docket No. 54). Still, “to ensure against redundancy,” the Court

1

This Memorandum Decision and Order neither imposes any new conditions on any
party, nor requires any party to perform any particular action by a date certain, and is therefore
issued despite the stay in proceedings.
MEMORANDUM DECISION AND ORDER - 1

imposed the following conditions on Defendant-Intervenors’ briefing moving forward: (1)
WEA’s and Wyoming’s briefs shall be filed two weeks after Federal Defendants’ briefing; (2)
they shall file joint briefs; and (3) their joint briefing “shall be limited to issues not addressed in
Federal Defendants’ briefing.” Id. at p. 7. Defendant-Intervenors now seek to eliminate the
second and third of these conditions, arguing that, as parties to this action, they each “must be
granted full due process to protect [their] distinct and independent interests.” Mem. ISO Jnt.
Mot. to Modify, pp. 5-6. For the reasons described to follow, Defendant-Intervenors’ request is
granted, in part, and denied, in part.
To begin, the Court has discretion to impose conditions upon Defendant-Intervenors’
participation in this action, including those at play here – a briefing protocol specific to
Defendant-Intervenors that tracks/follows the Federal Defendants’ briefing on related matters.
See, e.g., Fed. R. Civ. P. 24 Adv. Comm. Notes 1966 (“An intervention of right . . . may be
subject to appropriate conditions or restrictions responsive among other things to the
requirements of efficient conduct of the proceedings.”); see also Stringfellow v. Concerned
Neighbors in Action, 480 U.S. 370, 383 (1987) (Brennan, J., concurring) (“[R]estrictions on
participation may . . . be placed on an intervenor of right and on an original party.”). But this
discretion is not without limitation; the conditions imposed by the Court must be “reasonable and
of a housekeeping nature.” Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d
§ 1922 (“So long as these conditions are reasonable and are of a housekeeping nature, this view
[(court’s power to impose conditions on intervention of right)] is likely to prevail.”).
The Court is satisfied that each of the above-noted conditions applicable to DefendantIntervenors’ ongoing briefing complies with such standards – that is to say, each of the
conditions is reasonable and of a housekeeping nature in light of the way in which this action is
currently (and anticipated to be) situated. Defendant-Intervenors have unique interests that may
MEMORANDUM DECISION AND ORDER - 2

not seamlessly align in every respect with those of the Federal Defendants, and these parties
were allowed to intervene as of right because of this circumstance. See 8/21/18 MDO, p. 6
(Docket No. 54) (“While the Federal Defendants will generally defend the Secretary’s decision
(and decision-making process), only Wyoming and WEA are uniquely capable of explaining
how any potential ruling will affect a state’s economy and the property interests of a private trade
association that are both heavily dependent on oil and gas production/leasing.”). Even so, it is
inescapable that Federal Defendants’ and Defendant-Intervenors’ interests contain important
common denominators on certain lynchpin issues, especially when the claims and defenses in
this case are framed by a finite administrative record that is the frame to the alleged statutory
violations.
There are sensible points raised by Defendant-Intervenors in their concern to fully present
their respective arguments, such that their preference is that there be no conditions. But they
share the same ultimate litigation objective (and for substantially similar reasons) as the Federal
Defendants, and therefore such conditions are not only appropriate but necessary. Otherwise,
their individual arguments – each likely extended to the boundaries of page limit requirements –
become overwhelming at best, and overwhelmingly duplicative at worst, not to mention the
inordinate additional workload it places upon the Court and any opposing party. Paradoxically,
in that setting, the most likely way for the case to come to a snail’s pace and for the waters to get
muddied would be to not impose the contested conditions to ensure the orderly and efficient
adjudication of the litigation.
The Court will therefore retain the condition requiring Defendant-Intervenors to file joint
briefs, convinced at this time that each is capable of fully and competently presenting their
arguments in such a format, given the present status of the action, including the fact that both are
represented by the same local counsel. The Court may revisit this condition if circumstances
MEMORANDUM DECISION AND ORDER - 3

warrant. Going forward, however, the Motion is denied. However, the Court clarifies that
Defendant-Intervenors are permitted to file separate briefs if they so choose, so long as (1) each
brief is no longer than one-half the number of authorized pages, or (2) by agreement between the
affected parties, a different number of pages is agreed upon and the combined number of pages
between the two briefs does not exceed the number of authorized pages.2
Separately, the Court will lift the condition that Defendant-Intervenors’ briefing shall be
limited to issues not addressed in Federal Defendants’ briefing. The Court is persuaded that a
bright line reading of such a condition would preclude Defendant-Intervenors from discussing
issues that may be more nuanced as to either or both of them (as compared to the Federal
Defendants) and therefore, in need of further elaboration. Defendant-Intervenors are cautioned,
however, to ensure that their briefing and arguments are not redundant with the Federal
Defendants or each other – particularly in light of the amount of pages available when filing
what is effectively a joint brief. In this respect, the Motion is granted.
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Defendant-Intervenors’ Joint
Motion to Modify Memorandum Decision and Order (Docket No. 84) is GRANTED, in part, and
DENIED, in part, as follows:
1.

Wyoming and WEA shall file joint briefs, to include the filing of separate briefs

so long as (1) each brief is no longer than one-half the number of authorized pages, or (2) a
different division of the total authorized pages made by agreement between the affected parties,

2

This condition applies to Defendant-Intervenors’ current May 15, 2019 deadline to file
(1) their joint response brief to Plaintiff’s Phase One partial summary judgment motion and
opening brief judgment (to be filed by March 22, 2019), and (2) any cross-motion for summary
judgment. See 12/13/18 CMO, pp. 2-3, n. 1 (Docket No. 107).
MEMORANDUM DECISION AND ORDER - 4

but with the combined number of pages between the two briefs not to exceed the number of
authorized pages. In this respect, Defendant-Intervenors’ Motion is DENIED.
2.

Wyoming’s and WEA’s joint briefing shall not be limited to issues not addressed

in the Federal Defendants’ briefing. In this respect, Defendant-Intervenors’ Motion is
GRANTED.
Wyoming and WEA’s joint briefing shall continue to be filed two weeks after the Federal
Defendants’ briefing.

DATED: January 23, 2019
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 5