Citizens Allied for Integrity and Accountability, Inc. et al v. Miller et al

Filing 20

MEMORANDUM DECISION AND ORDER. Snake Rivers Motion to Intervene (Dkt. 10 ) is GRANTED. Signed by Judge David C. Nye. (alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CITIZENS ALLIED FOR INTEGRITY
AND ACCOUNTABILITY, INC.;
MELVIN and TERRI PERSON; JAMES
and JAN MITCHELL; SUE BIXBY;
MARTINA JARAMIOLLO; RYAN
KECK; KRISTIE RAE COOPER;
HARVEY and BERNICE EASTON;
RANDY and TERESA PAYNE,

Case No. 1:21-cv-00367-DCN
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
DUSTIN MILLER, in his official
capacity as Director of the Idaho
Department of Lands; BETTY
COPPERSMITH, MARC SHIGETA,
JAMES CLASSEN, and RAY
HINCHCLIFF, in their official capacities
as members of the Idaho Oil and Gas
Conservation Commission,
Defendants.
I. INTRODUCTION
Pending before the Court is Snake River Oil and Gas, LLC’s (“Snake River”)
Motion to Intervene. Dkt. 10. Having reviewed the record and briefs, the Court finds that
the facts and legal arguments are adequately presented. Accordingly, in the interest of
avoiding further delay, and because the Court finds that the decisional process would not
be significantly aided by oral argument, the Court will decide the Motion without oral

MEMORANDUM DECISION AND ORDER - 1

argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B).
Upon review, and for the reasons set forth below, the Court GRANTS the Motion.
II. BACKGROUND1
Reservoirs of hydrocarbons, such as natural gas, lie beneath parts of Idaho. Dkt. 1,
¶ 8. These underground reservoirs frequently stretch across property boundary lines, and
consequently multiple owners, holding title to the surface and mineral rights of their land,
have a claim on the reservoirs. Id. at ¶ 9. To facilitate the private commercial development
of oil drilling, the State of Idaho has adopted statutory provisions compelling landowners
to sell their rights to private drilling companies when certain conditions are met. Id. at ¶ 9–
10. These provisions require a developer to apply for a “spacing order” and an “integration
order.” Id. at ¶ 10.
A “spacing order” application requires the identification of a likely underground
pool of hydrocarbons, such as natural gas, and seeks an order from the Idaho Oil and Gas
Conservation Commission (the “Commission”) setting appropriate spacing of wells to
recover the hydrocarbons efficiently and without excessive well-drilling. Id. at ¶ 11. An
“integration order” application seeks an order from the Commission which integrates the
mineral rights owners and requires them to sell those mineral rights on terms established
by a combination of statutes and administrative decisions. In other words, the individual
landowner rights are bundled and sold as a whole. Id. at ¶ 12.

1

The following facts are taken from Plaintiffs’ Complaint. Dkt. 1.

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In 2016, two corporate entities submitted an application for the entry of a spacing
order and an integration order concerning a potential pool of natural gas underlying land
in Fruitland, Idaho. Id. at ¶ 13. The Commission issued an order integrating a spacing unit
consisting of Section 14, Township 8 North Range 5 West, Boise Meridian, Payette
County, Idaho. Id. at ¶ 14. This led to the drilling of the well, which is known as “Barlow
1-14”. Id. Those two entities later went bankrupt, and Snake River obtained ownership of
their mineral rights, including those relating to the integration unit containing Barlow 1-14.
Id. at ¶ 16.
A year later, Snake River applied for a permit to drill a second well (“Barlow 2-14”)
within that same spacing and integration unit which would target a different pool of
hydrocarbons within the same area already covered by the Barlow 1-14 integration order.
Id. at ¶ 17. Eventually, after opposition from Plaintiffs and others, the Commission granted
the permit to drill Barlow 2-14. Id. at ¶ 18–21. Snake River then drilled the well, at an
alleged cost of $2.6 million.
Plaintiffs brought the instant case against Defendants on September 13, 2021.
Plaintiffs are seeking relief under 42 U.S.C. § 1983, requesting “declaratory relief finding
the final orders affecting Plaintiff landowners properties invalid and unenforceable as a
matter of law;” “permanent injunctive relief barring Defendants from relying on, applying
or utilizing the Idaho Oil and Gas Conservation Act unless and until they provide the
protections required by the United States Constitution;” and “a declaration and permanent
injunctive relief finding the Idaho Oil and Gas Conservation Act as currently written and
applied invalid as a matter of law.” Dkt. 1, at 8–9. It is clear that Plaintiffs are requesting
MEMORANDUM DECISION AND ORDER - 3

not only the closure of Barlow 2-14 but a wholesale dismantling of Idaho’s entire statutory
scheme regulating the drilling of oil wells.
On December 17, 2021, Snake River requested intervention as a matter of right or,
alternatively, permissive intervention under Federal Rule of Civil Procedure 24. See Dkt.
10. Plaintiffs oppose the Motion to Intervene. Dkt. 18.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 24(a) provides:
On timely application, 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 party.
The Ninth Circuit applies a four-part test to determine whether to permit a party to
intervene under Rule 24(a):
(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.
Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001). However,
courts should construe Rule 24(a) “liberally in favor of potential intervenors” and “should
be guided primarily by practical considerations, not technical distinctions.” Id. at 818
(cleaned up). In other words, “[i]f an absentee would be substantially affected in a practical
sense by the determination made in an action, he should, as a general rule, be entitled to
intervene.” Id. (quoting Fed. R. Civ. P. 24 advisory committee’s notes). However, it is the
MEMORANDUM DECISION AND ORDER - 4

movant’s burden to show that it satisfies each of the four criteria for intervention as of
right. Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006).
In general, Rule 24(b) also gives the court discretion to allow permissive
intervention to anyone who has a claim or defense that shares with the main action a
common question of law or fact. Fed. R. Civ. P. 24(b)(1)(B). In addition, in exercising its
discretion under Rule 24(b), the Court must consider whether intervention will unduly
delay or prejudice the adjudication of the original parties’ rights. Fed. R. Civ. P. 24(b)(3).
IV. DISCUSSION
Although the Court will analyze all four requirements for intervention as of right,
Plaintiffs only chose to contest the fourth requirement—the adequacy of representation by
the current Defendants. Plaintiffs, however, did not concede the other elements. Dkt. 18,
at 3.
A. Whether the Motion to Intervene is Timely
The Ninth Circuit “consider[s] three criteria in determining whether a motion to
intervene is timely: (1) the stage of the proceedings; (2) whether the parties would be
prejudiced; and (3) the reason for any delay in moving to intervene.” Nw. Forest Res.
Council v. Glickman, 82 F.3d 825, 836 (9th Cir. 1996), as amended on denial of reh’g
(May 30, 1996).
Here, Snake River moved to intervene at an early stage of the proceedings. The
complaint was filed September 2021. Within roughly three months, Snake River filed the
instant motion to intervene. The Court has issued a Scheduling Order (Dkt. 15) but nothing
of consequence has happened in the case so far. Accordingly, none of the parties would be
MEMORANDUM DECISION AND ORDER - 5

prejudiced by Snake River joining the case and the Court finds the instant motion to be
timely.
B. Whether Snake River Has a Significantly Protectable Interest
To show a significantly protectable interest, “[i]t is generally enough that the interest
asserted is protectable under some law, and that there is a relationship between the legally
protected interest and the claims at issue.” Berg, 268 F.3d at 818 (cleaned up). The Ninth
Circuit has held that a permit right is a significantly protectable interest. See, e.g., Sierra
Club v. U.S. E.P.A., 995 F.2d 1478, 1482–83 (holding that Clean Water Act pollution
permits affecting the use of real property were significant protectable interests), abrogated
on other grounds by Wilderness Soc. v. U.S. Forest Service, 630 F.3d 1173, 1173–74 (9th.
Cir. 2011). Here, it is undisputed that Snake River is in possession of a permit to drill
Barlow 2-14, a well which will presumably lead to financial earnings. As such, the Court
finds that Snake River has a significant protectable interest.
C. Whether the Disposition of the Action May, as a Practical Matter, Impair or
Impede the Applicant’s Ability to Protect That Interest
The third requirement is that “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.” Berg, 268 F.3d at 817. The advisory committee elaborated on Rule 24(a),
explaining that “[i]f an absentee would be substantially affected in a practical sense by the
determination made in an action, he should, as a general rule, be entitled to intervene.” Fed.
R. Civ. P. 24 advisory comm. notes (Am. 1966).
Here, Plaintiffs requested relief includes “an order invalidating the final orders
MEMORANDUM DECISION AND ORDER - 6

entered by Defendant Schultz and the Idaho Oil and Gas Conservation Commission.” Dkt.
1, at ¶ 24. This invalidation, if granted, would bar Snake River from using Barlow 2-14,
negating all the significant capital already invested into the well and leading to a loss of
future income. Clearly, such disposition of the instant case would significantly impede
Snake River’s ability to protect its interest in the well, and Snake River has met the third
requirement.
D. Whether the IOGCC Can Adequately Represent the Claim of Privilege
The “most important factor” to determine whether a proposed intervenor is
adequately represented by an existing party to the action is “how the [proposed
intervenor’s] interest compares with the interests of existing parties.” Arakaki, 324 F.3d at
1086 (citations omitted). When an existing party and a proposed intervenor share the same
or “identical” ultimate objective, a presumption of adequacy of representation applies. Id.
This presumption of adequacy especially applies when the government is acting on behalf
of a constituency that it represents. United States v. City of L.A., 288 F.3d 391, 401 (9th
Cir. 2002). In the absence of a “very compelling showing to the contrary, it will be
presumed that a state adequately represents its citizens when the applicant shares the same
interest.” Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003) (cleaned up). However,
“[t]his does not mean that intervention always must be denied if the interests of the absentee
and one of the parties are identical . . . .It means only that there must be a concrete showing
of circumstances in the particular case that make the representation inadequate.” 7C
Wright, Miller & Kane, Federal Practice and Procedure 3d § 1909, at 426–27.

MEMORANDUM DECISION AND ORDER - 7

1. Whether the Government and Snake River Share the Identical Interest
In determining whether the existing Defendants can adequately represent Snake
River’s interest, the Court first turns to the question of whether the Defendants and Snake
River share an identical interest. Several cases illustrate what an identical interest is.
In League of United Latin American Citizens v. Wilson, the Ninth Circuit found that
the defendant (the State of California) and the intervenor-applicant, a public interest group
sought the same ultimate objective because both were defending the constitutionality of
Proposition 187. 131 F.3d 1297, 1301–05 (9th Cir. 1997). Similarly, in Prete v. Bradbury,
the Ninth Circuit held that the defendant (the Secretary of State of Oregon) and the
intervenor-defendants shared the same interest because they both sought to uphold the
validity of Measure 26, which prohibited payment to electoral petition signature gatherers
on a per signature basis. 438 F.3d 949, 957 (9th Cir. 2006).
Likewise, in Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, the Ninth
Circuit ruled that the defendant (the City of Oakland) and the intervenor-defendants (the
Sierra Club and the San Francisco Baykeeper) shared the same interest in the litigation.
960 F.3d 603, 620 (9th Cir. 2020). In that case, the City of Oakland contracted with the
predecessor-in-interest of Oakland Bulk & Oversized Terminal, LLC (“OBOT”) to
develop a commercial terminal on an abandoned military base, a contract which OBOT
acquired. Id. at 607. However, when the public angrily responded to the news that coal
would be transported through the terminal, the City of Oakland passed regulations banning
coal from being transported through the terminal. Id. OBOT sued, claiming breach of
contract. Sierra Club and the San Francisco Baykeeper moved to intervene on the side of
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the City. Although the intervenor-defendants claimed that their “narrower interest—a focus
on health, safety and environmental protections, as opposed to Oakland’s broader concerns
that include such matters as the City’s finances and its contractual relationship with OBOT”
was sufficient to rebut the presumption of adequacy, the Ninth Circuit was not persuaded.
Id. at 620. As such, the intervenor-applicants were not allowed to help defend the anti-coal
regulations.
Notably, in Wilson, Prete, and Oakland Bulk, the intervenors were seeking to uphold
the government’s regulations, and nothing more. More analogous to the instant case are
situations in which intervenors shared a related but separate interest, such as in cases where
the intervenors had a distinct economic interest or were arguing for a different
interpretation of government regulations.
One such example is Berg. In that case, several environmental groups sued various
officers of Fish and Wildlife Services, the Department of the Interior, the U.S. Army Corps
of Engineers, and the City of San Diego, challenging “the measures Defendants have taken
to ensure the protection of seven endangered wetland species, and the validity of
conservation plans and an agreement and permit that regulate development projects
affecting these and other protected species.” Berg, 268 F.3d at 814. Those measures
included a comprehensive land management plan that took the City of San Diego over half
a decade to create with input from a wide variety of stakeholders. The plan was specifically
designed to create a “workable balance between preservation of natural resources and
regional growth and economic prosperity.” Id. at 815. The intervenor-defendants consisted
of a construction company and four national and local building trade associations. Id. at
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814. Several of the company’s projects had met the standards of the plan, received
approval, and were being implemented. Id. at 820. Even though the projects were not
directly being attacked, the Ninth Circuit granted the intervenor-defendants motion to
intervene, explaining that the government agencies had different priorities than the private
sector intervenor-defendants:
Just as the City could not successfully negotiate the Plans without some
private sector participation from Applicants, so too the City in this case
cannot be expected successfully to safeguard Applicants’ legally protectable
interests. Indeed, the City’s response to the Applicants’ motion
acknowledges that it “will not represent proposed intervenors’ interests in
this action.” Moreover, FWS, a federal agency, and other defendants also
cannot be expected under the circumstances presented to protect these private
interests. Applicants would likely offer important elements to the
proceedings that the existing parties would likely neglect. The priorities of
the defending government agencies are not simply to confirm the Applicants'
interests in the Plans, the IA, and the City’s ITP. The interests of government
and the private sector may diverge. On some issues Applicants will have to
express their own unique private perspectives and in essence carry forward
their own interests in the IA.
Id. at 823–24 (emphasis added).
Similarly, in California ex rel. Lockyer v. United States, the Ninth Circuit held that
the United States and the applicant intervenor-defendants had “distinctly different, and
likely, conflicting” interests because the United States was arguing for a much narrower
interpretation of the statute at question than the intervenors desired, an interpretation so
narrow that the interpretive differences between the government and the proposed
intervenors went “to the heart” of the interpretation of the statue at issue. 450 F.3d 436,
444–45 (9th Cir. 2006).
Here, as of right now, both Snake River and Defendants are interested in upholding

MEMORANDUM DECISION AND ORDER - 10

the permits granted by the IOGCC. However, the Defendants also have several other
interests in this case because Plaintiffs are attacking the validity of the Idaho Oil and Gas
Conservation Act. Dkt. 1, at 9. Thus, like the defendants in Berg, Defendants are concerned
with protecting its entire statutory scheme as a whole, which is a much broader interest
than a single well. Unlike the interests of the proposed intervenors in Wilson, Prete, and
Oakland Bulk, Snake River has discrete economic interests involved in the litigation. These
additional economic interests, like the intervenors in Berg, are sufficient enough for this
Court to find that the Snake River and Defendants do not have identical interests and as
such the presumption of adequacy does not apply. Like the intervenors in Lockyer, Snake
River and Defendants have “distinctly different” interests because, as with the wildly
varying statutory interpretations in Lockyer, it is all too easy to foresee Defendant’s
sacrificing Snake River’s interests in the permits in order to protect Defendant’s interest in
the statutory scheme as a whole. Thus, there is no presumption requiring a compelling
showing that the existing Defendants will not adequately represent its interests. In other
words, the normal standard, as explained below, applies.
2. Adequacy of Representation
The Ninth Circuit has identified three factors for evaluating the adequacy of
representation: (1) whether the interest of an existing party is such that it will undoubtedly
make all of a proposed intervenor’s arguments; (2) whether the existing party is capable
and willing to make such arguments; and (3) whether a proposed intervenor would offer
any necessary elements to the proceeding that existing parties would neglect. Arakaki, 324
F.3d at 1086. “The prospective intervenor bears the burden of demonstrating that existing
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parties do not adequately represent its interests.” Glickman, 82 F.3d at 838. This burden is
satisfied if a proposed intervenor shows that representation “may be” inadequate. Trbovich
v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972). Furthermore, courts consider this
minimal burden satisfied when “the interests of [intervenors] were potentially more narrow
and parochial than the interests of the public at large.” Californians for Safe & Competitive
Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 1190 (9th Cir. 1998). However,
government representation is not inadequate simply because the intervenor-defendant has
“mere differences in [litigation] strategy.” United States v. City of Los Angeles, 288 F.3d
391, 402–03 (9th Cir. 2002).
Several cases illustrate the principle that that individuals or organizations with a
narrow economic interest may intervene in cases involving a broader statutory scheme
because the government’s representation (focused on the statutes themselves instead of the
economic interests of the intervenors) may be inadequate. As explained above, the Ninth
Circuit in Berg allowed a construction company and various building associations to
intervene to protect their economic interests when environmental groups sued the City of
San Diego and various governmental agencies attempting to strike down the City’s
developmental plan. Berg, 268 F.3d at 824. In Mendonca, the Ninth Circuit allowed the
International Brotherhood of Teamsters (“IBOT”) to intervene as defendants because the
outcome of the case, or rather the interpretation of the statute at issue, would directly
influence the rates that the members of IBOT were paid for their work. Mendonca ,152
F.3d at 1190. Similarly, in Snowlands Network v. United States, the Eastern District of
California allowed various associations of snowmobile sellers and users to intervene in a
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lawsuit brought by various environmental groups against the Forest Service seeking to end
a governmental program involving snowmobile trail maintenance that, allegedly, was
leading to an increased number of snowmobiles, and pollution, in certain national forests.
2012 WL 4755161, at *1 (E.D. Cal. Oct. 4, 2012). Because the outcome of the case would
directly influence the use and sales of snowmobiles, the court granted the motion to
intervene. Id. at *3.
The District of Idaho has also ruled similarly. Portfolio FB-Idaho, LLC v. Fed.
Deposit Ins. Corp., 2010 WL 5391442, at *4 (D. Idaho Dec. 17, 2010) (“While FDIC
protects the interests of the general public and of the failed bank, it cannot be expected to
protect Stilwyn’s interests any more than any lender could be expected to protect a
borrower’s interest.”). Other district courts have done likewise. See, e.g., Env’t Def. Ctr. v.
Bureau of Safety and Env’t Enf’t, 2015 WL 12734012, at *4 (C.D. Cal. April 2, 2015)
(holding that the presumption of adequate representation did not apply and that the
defendants would not adequately represent the proposed intervenors because “the Proposed
Intervenors seek to protect their private interests while the Defendants have an interest in
protecting the public in general”); Swinomish Indian Tribal Comm. v. Army Corps of Engs.,
2019 WL 469842, at *3 (W.D. Wash. Feb. 6, 2019) (granting the motion to intervene
because the private interests of the proposed intervenor, a shellfish farming company, may
not be adequately represented by the defendant government agencies); Klamath Siskiyou
Wildlands Ctr. v. United States Bureau of Land Mgmt., 2020 WL 1052518, at *3 (D. Or.
March 4, 2020) (granting the motion to intervene because the proposed intervenor has “a
specific private interest in protecting its contract rights and ability to purchase future timber
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sale offerings from BLM,” which differed from the BLM’s “more general interest in
following and enforcing regulations and defending agency actions”).
Here, as explained above, it is not clear that Defendants will “undoubtedly make all
of a proposed intervenor’s arguments.” Arakaki, 324 F.3d at 1086. As explained above,
Snake River has distinct economic motivations from the Defendants. Snake River is
focused on protecting its permits, while the government officials are naturally more
concerned with protecting the Idaho Oil and Gas Conservation Act. One can imagine the
Defendants withdrawing the permits in an attempt to render the case moot and therefore
preserve their statutory scheme.2 There is little to stop Defendants from doing so, while
Snake River has financially tied itself to those permits. As the Ninth Circuit explained in
Berg, “[t]he priorities of the defending government agencies are not simply to confirm the
Applicants’ interests [or permits]” in the statutory scheme. Berg, 268 F.3d at 823. As such,
Snake River will not be represented adequately by the Defendants.
Accordingly, all four prongs are met, and the Court GRANTS the Snake River’s
Motion to Intervene as of right pursuant to Rule 24(a). Alternatively, however, the Court
finds permissive intervention is also appropriate.
E. Permissive Intervention
The Court’s discretion to grant or deny permissive intervention is broad. Spangler

2

Although the Government has not yet done so, the Court feels comfortable relying at least in part on this
possibility because a proposed intervenor must only show that representation “may be” inadequate.
Trbovich, 404 U.S. at 538 n.10. Snake River’s argument is reasonable and as such Snake River has met its
burden.

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v. Pasadena City Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977) (cleaned up). The Ninth
Circuit has “often stated that permissive intervention requires: (1) an independent ground
for jurisdiction; (2) a timely motion; and (3) a common question of law and fact between
the movant's claim or defense and the main action.” Freedom from Religion Found., Inc.
v. Geithner, 644 F.3d 836, 843 (9th Cir. 2011) (citations omitted). “In exercising its
discretion,” the Court must also “consider whether the intervention will unduly delay or
prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). When a
proposed intervenor has otherwise met the requirements, “the court may also consider other
factors in the exercise of its discretion, including the nature and extent of the intervenors’
interest and whether the intervenors’ interests are adequately represented by other parties.”
Perry v. Proposition 8 Off. Proponents, 587 F.3d 947, 955 (9th Cir. 2009) (cleaned up).
The first prong is that the Court must have an independent ground for jurisdiction.
The Ninth Circuit has explained that “in federal-question cases, the identity of the parties
is irrelevant and the district court’s jurisdiction is grounded in the federal question(s) raised
by the plaintiff.” Geithner, 644 F.3d at 844. Furthermore, “[w]here the proposed intervenor
in a federal-question case brings no new claims, the jurisdictional concern drops away.”
Id. Accordingly, an independent ground for jurisdiction exists in this case because plaintiffs
are bringing their claims under 42 U.S.C § 1983, and the proposed-intervenors are not
raising new claims. The second prong requiring a timely motion has been met, as explained
above. Similarly, the third prong is also met because Snake River’s permits are clearly a
critical part of the instant case. Accordingly, permissive intervention is appropriate in this
case.
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In sum, the Court will allow Snake River to intervene as of right, and, alternatively,
finds permissive intervention is also appropriate.
V. ORDER
The Court HEREBY ORDERS:
1. Snake River’s Motion to Intervene (Dkt. 10) is GRANTED.

DATED: May 5, 2022
_________________________
David C. Nye
Chief U.S. District Court Judge

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