Western Watersheds Project et al v. U.S. Forest Service

Filing 62

MEMORANDUM DECISION AND ORDER granting 34 Motion to Intervene. IT IS HEREBY ORDERED that the State of Wyomings Motion to Intervene (Dkt. 34) is GRANTED, as set forth herein. 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 krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
WESTERN WATERSHEDS PROJECT,
CENTER FOR BIOLOGICAL DIVERSITY,
GRAND CANYON TRUST, and UTAH
ENVIRONMENTAL CONGRESS,

Case No. CV 10-612-E-EJL-REB
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
U.S. FOREST SERVICE,
Defendant,
and
WYOMING STOCK GROWERS ASSN.,
WYOMING WOOL GROWERS ASSN.,
PUBLIC LANDS COUNCIL, PETER R.
ARAMBEL, and WYOMING COUNTY
COMMISSIONERS ASSN.,
Defendant-Intervenors.

Currently pending before the Court is the State of Wyoming’s Motion to Intervene (Dkt.
34).
I. BACKGROUND
This case arises out of the United States Forest Service’s (“the Forest Service”)
categorical exclusion of certain grazing reauthorizations from the requirements of the National
Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 through 4370. The Consolidated
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Appropriations Act of 2005, Pub. Law No. 108-447, 118 Stat. 2809, 3103 (Dec. 8, 2004), for
fiscal years 2005 through 2007, allowed a decision made by the Forest Service to authorize
grazing on an allotment to be categorically excluded from documentation in an environmental
assessment or an environmental impact statement under NEPA if: (1) the decision continued
current grazing management of the allotment; (2) monitoring indicated that current grazing
management was meeting, or satisfactorily moving toward, objectives in the land and resource
management plan; and (3) if the decision was consistent with agency policy concerning
extraordinary circumstances. Utilizing such a categorical exclusion, the Forest Service reauthorized livestock grazing on several grazing allotments within the Bridger-Teton (Wyoming),
Caribou-Targhee (Idaho), Uinta-Wasatch-Cache (Utah), Manti-La Sal (Utah) and Fishlake
(Utah) National Forests, without conducting any NEPA environmental analysis. Plaintiffs seek
an order reversing each of these categorical exclusion decisions and requiring the Forest Service
to conduct an appropriate environmental analysis for these decisions.
The instant motion implicates five categorical exclusion (CE) decisions: (1) South Soda
Sheep Allotments CE (Caribou-Targhee National Forest); (2) Southern Wind River Sheep
Allotments CE (Bridger-Teton National Forest); (3) Red Castle, East Fork Blacks Fork, Middle
Fork Blacks Fork, Lyman Lake, Little West Fork Blacks Fork, and Elizabeth Mountain No. 2
Allotments CE (Uinta-Wasatch-Cache National Forest); (4) South Skyline, Booth Canyon, and
Potter Canyon Allotments CE (Manti-La Sal National Forest); and (5) Fremont Allotments CE
(Fishlake National Forest).
The following entities have already intervened in this matter by stipulation: Wyoming
Stock Growers Assn., Wyoming Wool Growers Assn., Public Lands Council, Peter R. Arambel,

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and Wyoming County Commissioners Assn. (collective “Wyoming Stock Growers
Intervenors”). (Dkt. 46). However, such intervention is limited to issues raised by two CE
decisions issued by the Bridger-Teton National Forest, specifically the Southern Wind River
Sheep Allotments CE, and the Sweetwater, Blucher Creek, and East Squaw Creek Allotments
CE. Id.
II. MOTION TO INTERVENE
The State of Wyoming (“State”) seeks to intervene pursuant to Fed. R. Civ. P. 24(a) or
(b) because three of the five National Forests at issue are located wholly or partially within the
geographic boundaries of the State of Wyoming, specifically the Bridger-Teton National Forest
allotments which are at issue in this round of briefing. The State contends that the federal
grazing permittees in this allotment also have State grazing leases on lands adjacent to the
National Forest, and therefore actions that adversely affect the permittees’ ability to graze on
federal lands also adversely affect state grazing leases. Based upon that connection, the State
contends that it has a substantial interest in this litigation.
A.

Standard of Law for Motion to Intervene
Rule 24(a) allows intervention as a matter of right:
On timely motion, 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 interest.
To measure such an interest, the Ninth Circuit applies 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)

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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 to the lawsuit.
Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001).
In general, the Court must construe Rule 24(a) liberally in favor of intervention. Id. at
818. Morever, the Court’s evaluation is “guided primarily by practical considerations,” not
technical distinctions. Id. Nonetheless, the “[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).
Although the only aspect of the four-part test that is challenged by Plaintiffs is whether
the State’s interests are adequately represented, the Court must still examine and determine the
particulars of the application under each of the factors.
1.

The State’s Motion is Timely

In determining whether a motion to intervene is timely, three factors are considered: (1)
stage of the proceedings; (2) prejudice to other parties; and (3) reason for, and length of delay.
Smith v. Marsh, 194 F.3d 1045, 1049 (9th Cir. 1999); Orange County v. Air Cal., 799 F.2d 535,
537 (9th Cir. 1986).
The State of Wyoming filed its motion to intervene on October 12, 2011, after learning of
this litigation approximately a month prior. The motion was filed shortly after Plaintiffs filed
their motion for summary judgment but prior to the Forest Service filing its cross-motion for
summary judgment. The State contends it will comply with the existing briefing schedule and
limit participation to existing issues. The Court finds that the State’s motion is timely.

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2.

There is Potential for Impairment of a Significantly Protectable Interest

In determining whether the applicant for intervention may suffer an impairment of a
“significantly protectable” interest - the Court must follow “practical and equitable
considerations and construe the Rule broadly in favor of proposed intervenors.” Wilderness
Society v. U.S. Forest Service, 630 F.3d 1173, 1179 (9th Cir. 2011) (citations omitted). 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).
Here, if Plaintiffs are granted the relief they request, the case will be remanded to the
Forest Service to conduct either environmental assessments or environmental impact statements
for the categorical exclusions at issue. Because the federal grazing permittees also have grazing
rights on adjacent state land, subjecting these grazing permits to new environmental reviews will
have an impact on state lands, particularly where state lands may be insufficient to satisfy the
permittees’ entire grazing requirements. The State contends that to maximize the value of its
land,1 it must depend on the adjacent federal grazing lands. The State represents that it also
would be required to expend time and resources in the development of environmental analyses
upon such allotments. Additionally, the State argues that it has sovereign and regulatory
interests in the management of all grazing within the state. Although the precise dimensions of
such interests may be subject to debate, the Court is satisfied that the sum of such interests
represents a significantly protectable interest that may be impaired by this action.

1

As the owner of state lands held in trust for the benefit of Wyoming’s school children,
Wyoming has an obligation to ensure that grazing leases on state lands “inure to the greatest
benefit to the state land trust beneficiaries.” Wyo. Stat. Ann. § 36-5-105.
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3.

The State’s Interests are Not Adequately Represented by Existing Parties

The fourth element is directly contested by the Plaintiffs. They contend that whatever the State’s
interests may be, they are so similar to the current intervenors’ interests that Wyoming’s interest
will be adequately represented by the current intervenors. 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.
Berg, 268 F.3d at 822. The prospective intervenor has 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 the representation of its interests
by existing parties “may be” inadequate. Id. In assessing the adequacy of representation, 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.
Plaintiffs contend that the Forest Service has the same ultimate objective as the State of
Wyoming in defending the CE decisions. Additionally, the Wyoming Stock Growers
Intervenors have an interest in preserving grazing on the Wyoming allotments, the same interest
as the State. The State disputes those arguments, contending that its sovereign interests are
inescapably distinct from the interests of the intervenors, and that no other entity can adequately
represent its interests. See Sierra Club v. Robertson, 960 F.2d 83, 86 (8th Cir. 1992) (noting that
the unique interests of a state include a duty to represent interests of citizens, its property
interests, protecting and promoting the state economy, and protecting tax revenues).

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The Court is persuaded that the State of Wyoming has sovereign interests pertaining to
the allotments that fall in whole or in part within its geographic boundaries that, even if similar
in part, cannot be adequately represented by the Forest Service or the Wyoming Stock Growers
Intervenors. These interests include managing the land within the state to the greatest benefit of
the land trust beneficiaries as well as its regulatory interest in all aspects of grazing within the
state. The Forest Service and the Wyoming Stock Growers Intervenors do not share these same
interests, do not have the same motivation to protect such interests, and the State cannot be
assured that such interests would be adequately protected by the existing parties.
III. CONCLUSION
The Court finds that the State of Wyoming meets all the requirements for intervention as
of right under Rule 24(a). The Court will allow the State of Wyoming to intervene only as the
claims on the Bridger-Teton National Forest categorical exclusions.
ORDER
IT IS HEREBY ORDERED that the State of Wyoming’s Motion to Intervene (Dkt. 34)
is GRANTED, as set forth herein.

DATED: January 30, 2012

Honorable Ronald E. Bush
U. S. Magistrate Judge

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