Wildearth Guardians v. Hoover et al

Filing 44

ORDER granting 36 Motion to Intervene. IT IS FURTHER ORDERED that the Fur Information Council shall also refile its motion for the pro hac vice admission of Ira T. Kasdan for consideration as a separate docket entry in the case. Signed by Judge Donald W. Molloy on 12/20/2016. (ASG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

FILED
DEC 2 0 2016
Clerk, U.S. District Court
District Of Montana
Missoula

CV 16-65-M-DWM

WILDEARTH GUARDIANS,
Plaintiff,

ORDER
vs.
CRAIG HOOVER; DANIEL ASHE;
UNITED STATES FISH AND
WILDLIFE SERVICE; SALLY
JEWELL; AND THE UNITED STATES
DEPARTMENT OF THE INTERIOR,
Defendants,
and
MONTANA TRAPPERS
ASSOCIATION, NATIONAL
TRAPPERS ASSOCIATION, and FUR
INFORMATION COUNCIL OF
AMERICA,
Defendant-Intervenors.
Plaintiff WildEarth Guardians seeks declaratory and injunctive relief against
the United States Fish and Wildlife Service of the Department of the Interior
(collectively "the Service") for violating the National Environmental Policy Act
("NEPA") in the administration of the Convention on International Trade in
Endangered Species ("CITES") export program for pelts and parts of furbearer
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species. On August 3, 2016, the Montana Trappers Association and the National
Trappers Association were granted leave to intervene on the side of the Service.
(Doc. 21.) The Fur Information Council of America ("Fur Information Council")
seeks to intervene as well, (Doc. 36), and its request is granted. 1
A party qualifies to intervene as a matter of right under Rule 24(a)(2) of the
Federal Rules of Civil Procedure if four requirements are met: "(1) the
intervention application is timely; (2) the applicant has a significant protectable
interest relating to the property or transaction that is the subject of the action; (3)
the disposition of the action may, as a practical matter, impair or impede the
applicant's ability to protect its interest; and (4) the existing parties may not
adequately represent the applicant's interest." Citizens for Balanced Use v. Mont.
Wilderness Ass 'n, 647 F.3d 893, 897 (9th Cir. 2011) (quoting Prete v. Bradbury,
438 F.3d 949, 954 (9th Cir. 2006)). While all four requirements must be met, they
are interpreted broadly in favor of intervention. 2 Id.
In deciding if a motion to intervene is timely, courts consider "(1) the stage
of the proceeding at which an applicant seeks to intervene; (2) the prejudice to
1

Because the Fur Information Council may intervene as a matter of right, its alternative
argument for permissive intervention pursuant to Rule 24(b)(2) is not addressed.
2

While the motion indicates it is opposed by the plaintiff, WildEarth did not file a
response brief. See L.R. 7 .1 (d)(l )(B)(ii) ("[F]ailure to file a response brief may be deemed an
admission that the motion is well-taken.").

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other parties; and (3) the reason for and length of the delay." United States v.

Alisa! Water Corp., 370 F.3d 915, 921 (9th Cir. 2004) (internal quotation marks
and citation omitted). Here, while WildEarth's Amended Complaint was filed five
months ago, the briefing schedule has been stayed pending further environmental
analysis by the Service. (See Doc. 42.) Fur Information Council would be able to
follow the same briefing schedule assigned other parties, preventing prejudice. As
for the reason of the delay, Fur Information Council indicates it was waiting for a
ruling on the Service's dismissal motion. In light of the early stage of the
proceeding, the lack of prejudice, and the reason provided for delay, Fur
Information Council's motion is timely.
A prospective intervenor must further establish its interest "is protectable
under some law, and ... there is a relationship between the legally protected
interest and the claims at issue." Wilderness Socy. v. US. Forest Serv., 630 F.3d
1173, 1180 (9th Cir. 2011) (quoting Sierra Club v. US. Envtl. Protec. Agency, 995
F.2d 1478, 1484 (9th Cir. 1993)). A putative intervenor's ability to protect that
interest is impaired or impeded "if it will suffer a practical impairment of its
interests as a result of the pending litigation." Id. (quoting California ex rel.

Lockyer v. United States, 450 F.3d 436, 441 (9th Cir. 2006)). The Fur Information
Council has an organizational interest-and its members a financial one-in the
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CITES regulatory regime. The disposition of the claims at issue could threaten the
Fur Information Council's ability to protect it and its members' interests. Citizens
for Balanced Use, 647 F.3d at 898.
Finally, Fur Information Council meets its burden of showing inadequacy of
representation. This burden is '"minimal' and may be satisfied ifthe applicant can
demonstrate that representation of its interests 'may be' inadequate." Id. (quoting
Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)). Because Federal
Defendants, the existing Trapper Intervenors, and the Fur Information Council
share the same ultimate objective -i.e., upholding Defendants' regulatory
decisions-there is a presumption of adequate representation. Id. Nevertheless,
"the government's representation of the public interest may not be 'identical to the
individual parochial interest' of a particular group just because 'both entities
occupy the same posture in the litigation."' Id. at 899 (quoting WildEarth
Guardians v. U.S. Forest Serv., 573 F.3d 992, 996 (10th Cir. 2009)). Here, while
both Federal Defendants and the Fur Information Council seek to defend the
regulatory process that was followed in this case, their ultimate goals are different.
Federal Defendants are bound to follow the proper regulatory process even if
exportation under CITES becomes limited in a way contrary to the Fur
Information Council's goals, rebutting the presumption of adequate representation.
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The Fur Information Council's interests are also distinguishable from the existing
Trapper Intervenors, as the latter have outlined a specific interest in how
regulation will affect trapping; regulation could affect trapping and licensing of
exports differently.
Because the Fur Information Council satisfies the requirements for
intervention as a matter of right,
IT IS ORDERED that its motion to intervene (Doc. 36) is GRANTED. The
Fur Information Council shall re-file its answer as a separate docket entry in the
case. The caption is modified as reflected above. The case shall proceed as
outlined in the Stay Order. (See Doc. 42.)
IT IS FURTHER ORDERED that the Fur Information Council shall also refile its motion for the pro hac vice admission of Ira T. Kasdan for consideration as
a separate docket entry in the case.

~

Dated this!)/) day of December, 2016.

. Mol oy, District Judge
tates D trict Court

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