Western Watersheds Project v. Bureau of Land Management

Filing 141

MEMORANDUM DECISION AND ORDER granting 108 Motion for Reconsideration. The Public Lands Council, the National Cattlemen's Beef Association, and the Idaho Cattle Association are allowed to intervene. Intervenors' briefs on the summary judgment motions due by 10/7/2011. 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)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
WESTERN WATERSHEDS PROJECT,
Plaintiff,

Case No. 4: 08-CV-435-BLW

v.

MEMORANDUM DECISION
AND ORDER

KEN SALAZAR, Secretary,
DEPARTMENT OF THE INTERIOR, an
agency of the United States, and BUREAU
OF LAND MANAGEMENT,
Defendants.

INTRODUCTION
The Court has before it a motion to reconsider filed by proposed intervenors
National Cattlemen’s Beef Association, Idaho Cattle Association, and the Public Lands
Council (hereinafter collectively referred to as Public Lands). The motion is fully briefed
and at issue. For the reasons explained below, the Court will grant the motion.
LITIGATION BACKGROUND
In this lawsuit, plaintiff WWP challenges about 600 separate decisions of the BLM
concerning some 40 million acres spread out over two states, Idaho and Nevada. WWP
argues that these decisions failed to protect the sage grouse, a BLM-designated sensitive
species that was recently given a “warranted but precluded” listing under the Endangered
Species Act (ESA). The complaint challenges the 600 decisions under NEPA and
Memorandum Decision & Order - 1

FLPMA, among other environmental laws.
Public Lands sought to intervene as of right. In an earlier decision, the Court
allowed intervention only as to the remedy phase, holding that the BLM could adequately
protect the interests of the proposed intervenors. Public Lands seeks reconsideration of
that decision based on a recent Ninth Circuit case.
LEGAL STANDARD
A motion to reconsider an interlocutory ruling requires an analysis of two
important principles: (1) error must be corrected; and (2) judicial efficiency demands
forward progress. The former principle has led courts to hold that a denial of a motion to
dismiss or for summary judgment may be reconsidered at any time before final judgment.
Preaseau v. Prudential Insurance Co., 591 F.2d 74, 79-80 (9th Cir. 1979). While even an
interlocutory decision becomes the “law of the case,” it is not necessarily carved in stone.
Justice Oliver Wendell Holmes concluded that the “law of the case” doctrine “merely
expresses the practice of courts generally to refuse to reopen what has been decided, not a
limit to their power.” Messinger v. Anderson, 225 U.S. 436, 444 (1912). “The only
sensible thing for a trial court to do is to set itself right as soon as possible when
convinced that the law of the case is erroneous. There is no need to await reversal.” In re
Airport Car Rental Antitrust Litigation, 521 F.Supp. 568, 572 (N.D.Cal.
1981)(Schwartzer, J.).
The need to be right, however, must be balanced with the need for forward
progress. A court’s opinions “are not intended as mere first drafts, subject to revision and
Memorandum Decision & Order - 2

reconsideration at a litigant's pleasure.” Quaker Alloy Casting Co. v. Gulfco Indus., Inc.,
123 F.R.D. 282, 288 (N.D.Ill.1988). “Courts have distilled various grounds for
reconsideration of prior rulings into three major grounds for justifying reconsideration:
(1) an intervening change in controlling law; (2) the availability of new evidence or an
expanded factual record; and (3) need to correct a clear error or to prevent manifest
injustice.” Louen v Twedt, 2007 WL 915226 (E.D.Cal. March 26, 2007). If the motion
to reconsider does not fall within one of these three categories, it must be denied.
ANALYSIS
Public Lands argues that a recent Ninth Circuit decision changes the legal
landscape on intervention in environmental cases and warrants another look at the issue.
See Wilderness Society v. U.S. Forest Service, 630 F.3d 1173, 1179 (9th Cir. 2011) (en
banc). The Court agrees, and in a recent decision cited Wilderness Society in allowing
intervention-as-of-right in an environmental case. See WWP v. USFWS, 2011 WL
2690430 (D.Id. July 9, 2011). That case was also brought by WWP and it challenged the
decision of the United States Fish and Wildlife Service that the listing of the sage grouse
was "warranted but precluded by higher priority listing actions." This Court held that
various trade organizations, along with the states of Utah and Wyoming, were allowed to
intervene as of right under Rule 24. That decision, along with the Circuit's decision in
Wilderness Society, compel a reconsideration of the Court's earlier decision here limiting
intervention to remedy only.
In Wilderness Society, the Circuit held that the legal standards governing private
Memorandum Decision & Order - 3

party intervention in NEPA cases are the same as for any intervention-as-of-right case –
the Court must examine “practical and equitable considerations” and must apply “a liberal
policy in favor of intervention.” Wilderness Society, 630 F.3d at 1179. That decision was
issued on January 14, 2011, about a year after the decision of this Court that is the subject
of Public Lands’ motion for reconsideration. By making it clear that no categorical rules
apply to intervention issues in NEPA cases – and by doing so en banc – the Circuit
changed the law in a way that at the very least requires the Court to reexamine its prior
decision. That reexamination must begin with Rule 24(a)(2):
On timely motion, the court must permit anyone to intervene who ... 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,
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 Cir.2001).
There is no contention that the applications were untimely. To resolve the second
and third factors – whether the applicants may suffer, as a result of this lawsuit, an
impairment of a “significantly protectable” interest – the Court must follow “practical and
Memorandum Decision & Order - 4

equitable considerations and construe the Rule broadly in favor of proposed intervenors.”
Wilderness Society, 630 F.3d at 1179. 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. (citations omitted).
Many of the 600 BLM decisions challenged by WWP are decisions regarding
grazing levels and grazing permit restrictions. If WWP prevails and the agency is
directed to change these decisions to give more protections to sage grouse, the members
of Public Lands, including many cattle ranchers, could see a substantial modification of
their grazing privileges. Given that Wilderness Society directs this Court to take a liberal
view of the practical effects on the proposed intervenors, the Court finds that Public
Lands has satisfied the second and third requirements of the test set forth above.
The fourth requirement directs the Court to consider whether the interests of Public
Lands may be adequately represented by the BLM. The burden of showing inadequacy
of representation is “minimal” and is satisfied if the applicant can demonstrate that
representation of its interests “may be” inadequate. Citizens for Balanced Use v.
Montana Wilderness Ass’n, 647 F.3d 893, 898 (9th Cir. 2011). In evaluating adequacy of
representation, the Court must examine three factors: “(1) whether the interest of a
present party is such that it will undoubtedly make all of a proposed intervenor's
arguments; (2) whether the present party is capable and willing to make such arguments;
and (3) whether a proposed intervenor would offer any necessary elements to the
proceeding that other parties would neglect.” Id. The “most important factor” in
Memorandum Decision & Order - 5

assessing the adequacy of representation is “how the interest compares with the interests
of existing parties.” Id. If an applicant for intervention and an existing party share the
same ultimate objective, a presumption of adequacy of representation arises. Id. To
rebut the presumption, an applicant must make a “compelling showing” of inadequacy of
presentation. Id. “There is also an assumption of adequacy when the government is
acting on behalf of a constituency that it represents,” which must be rebutted with a
compelling showing. Id.
In this case, Public Lands and the BLM do not necessarily share the same ultimate
objective. Given the broad attack on 600 decisions, the BLM will be spread thin
defending each one. This creates an incentive for the BLM to focus its efforts on
protecting certain decisions at the risk of losing others. But a BLM decision to let some
claims go may be directly contrary to the interests of members of Public Lands who might
lose their grazing privileges or other benefits.
Because the BLM and Public Lands do not necessarily share the same ultimate
objective, Public Lands needs only make a “minimal showing” that the BLM’s
representation may be inadequate. That showing has been made here because members
of Public Lands have a deep financial interest in each BLM decision that affects their
land, while the BLM may, as discussed above, have a contrary interest in not pursuing a
defense of some of those decisions.
For all of these reasons, the Court will grant the motion to reconsider and allow
intervention-as-of-right to the Public Lands Council, the National Cattlemen’s Beef
Memorandum Decision & Order - 6

Association, and the Idaho Cattle Association. The Court will require these intervenors to
file briefs two weeks after the defendants' briefs to avoid any duplication, and will give
plaintiffs corresponding additional time to respond.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to reconsider
(docket no. 108) is GRANTED and that the Public Lands Council, the National
Cattlemen’s Beef Association, and the Idaho Cattle Association are allowed to intervene
pursuant to Rule 24(a)(2).
IT IS FURTHER ORDERED, that the deadline for the filing of intervenors’ briefs
on the summary judgment motions is October 7, 2011.

DATED: September 22, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

Memorandum Decision & Order - 7