Western Watersheds Project v. Kempthorne et al

Filing 154

MEMORANDUM DECISION AND ORDER granting 135 Motion to Intervene. 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-516-BLW

v.

MEMORANDUM DECISION
AND ORDER

KEN SALAZAR, Secretary,
DEPARTMENT OF THE INTERIOR,
Defendants.

INTRODUCTION
The Court has before it a motion to intervene filed by three entities (QEP
Resources, Inc., SWEPI LP, and Ultra Resources, Inc.) (“the Operators”) that run oil and
gas drilling operations in the Pinedale area of Wyoming. The motion is fully briefed and
at issue. The Court will grant the motion for the reasons explained below.
ANALYSIS
Rule 24(a) permits intervention when the following criteria are satisfied: (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.
Memorandum Decision & Order – page 1

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).
In this case, the only factor at issue is the fourth: WWP argues that the Operators’
interest is adequately represented by an existing intervenor, the Petroleum Association of
Wyoming. In addressing this factor, 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.
Where the party and the proposed intervenor share the same “ultimate objective,” a
presumption of adequacy of representation applies. Freedom From Religion Foundation,
Inc. v. Geithner, 644 F.3d 836, 841 (9th Cir. 2011). Such presumption can be rebutted
only by “a compelling showing to the contrary.” Id.
In this case, the Operators own or operate over 2500 wells in the Pinedale
Memorandum Decision & Order – page 2

Anticline, with plans to drill hundreds more. If the Court enforces restrictive interim
sage-grouse measures sought by WWP, this drilling may be affected.
Two of the three Operators sit on the Board of Directors of the Petroleum
Association of Wyoming (PAW), which has already been allowed to intervene in this
case. The PAW is made up of dozens of members of the oil and gas industry across
Wyoming. The Court allowed the PAW to intervene based on its representation that it
was “uniquely situated” to inform the Court about “the nature and extent of current oil
and gas operations in sage-grouse habitat on the Pinedale Anticline,” as well as
information regarding efforts “to mitigate impacts to sage-grouse” there.
The PAW and the Operators share the same “ultimate objective” – to block
remedies affecting oil and gas drilling. Thus, the Operators must make a “compelling
showing” that the PAW will not adequately represent its interests.
The Operators argue that while their substantial investments in the Pinedale area
are directly at risk, the PAW’s members may be more willing to compromise because
their interests are not so directly threatened. That seems highly unlikely; it strains
credulity to suggest that the interests of the Operators and the PAW would ever diverge,
given that two Operators sit on the PAW’s Board of Directors. What cannot be ignored,
however, is that the Operators have a direct investment that could be significantly
affected by the remedies issued by this Court, and that makes a compelling case for
allowing them to intervene.
But the Court will not grant intervention unfettered. The Court’s concern is that
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the Operators and the PAW will act as a united “super-party” with twice the number of
pages of briefing as are available to WWP and the other parties. That would be unfair.
To level the playing field, the Court will require that the Operators and the PAW divide
the pages of briefing assigned to each of the parties. If the Operators and PAW cannot
agree upon a fair allocation of the assigned pages of briefing, they will be split evenly
between them.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to intervene
filed by QEP Resources, Inc., SWEPI LP, and Ultra Resources, Inc. (docket no. 135) is
GRANTED, and these intervenors shall share the briefing page limit with intervenor
Petroleum Association of Wyoming.

DATED: January 6, 2012

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

Memorandum Decision & Order – page 4