Native Ecosystems Council et al v. Marten et al

Filing 22

ORDER granting 14 MOTION to Intervene filed by Montana Logging Association, Meagher County, and Montana Wood Products Association. Defendant-Intervenors shall re-file their answer. IT IS FURTHER ORDERED that Defendant-Intervenors may only file an opening brief for their cross-motion for summary judgment (limited to 6,500 words) on or before June 8, 2018, and reply brief (limited to 3,250 words) on or before July 13, 2018. No other filings are permitted without leave of Court. Signed by Judge Donald W. Molloy on 5/24/2018. (NOS)

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

FILED
MAY 2 4 2018
Cieri<., U.S District Court
District Of Montana
Missoula

NATIVE ECOSYSTEM COUNCIL,
and ALLIANCE FOR THE WILD
ROCKIES,

CV 17-153-M-DWM

ORDER

Plaintiffs,
vs.
LEANNE MARTEN, et. al,
Defendants,
and
MONTANA WOOD PRODUCTS
ASSOCIATION, a Montana
Corporation, MONTANA
LOGGING ASSOCIATION, a
Montana Corporation, and
MEAGHER COUNTY, a political
subdivision of the State of Montana,
Defendant-Intervenors.

In October 2017, Plaintiffs Native Ecosystems Council and Alliance for the
Wild Rockies (collectively "Plaintiffs") sued the United State Forest Service and
related individuals and entities (collectively "Forest Service"), challenging their
authorization of the Moose Creek Vegetation Project and the May 20, 2014

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landscape-scale insect and disease designations for Montana under Section 602( d)
'

of the Healthy Forest Restoration Act of 2003 (referred to as the Farm Bill
categorical exclusion). Montana Wood Products Association, Montana Logging
Association, and Meagher County (collectively "Proposed DefendantIntervenors") seek to intervene. (Doc. 14.) Although Plaintiffs indicated
opposition to the motion, (see Doc. 14 at 2), they did not file a responsive brief.

See L.R. 7.l(d)(l)(B)(ii) ("[F]ailure to file a response brief may be deemed an
admission that the motion is well-taken."). The motion is granted.

An applicant seeking to intervene as a matter of right under Rule 24(a)(2)
must meet four requirements: "(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)). These
requirements are interpreted broadly in favor of intervention. Id

A.

Timeliness

In determining whether a motion is timely, three factors are weighed: (1) the
stage of the proceeding; (2) any prejudice to the other parties; and (3) the reason
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for the length of any delay. Orange Cty. v. Air Cal., 799 F.2d 535, 537 (9th Cir.
1986). Here, while the Court has not made any substantive rulings in the case,
Proposed Defendant-Intervenors did not file their request until seven months after
the complaint was filed, (see Doc. 1 (dated Oct. 20, 2017)), on the same day
substantive briefing began, (see Doc. 11 (dated May 4, 2018)). However,
Proposed Defendant-Intervenors state that they "will work with the existing
briefing schedule and do not anticipate seeking discovery or separately
supplementing the administrative record." (Doc. 15 at 7.) Given the stage in the
case, prejudice is possible, but can be avoided. Proposed Defendant-Intervenors
will only be permitted to file a substantive opening brief and reply brief. They will
not be permitted to file any discovery motions or motions to dismiss.

B.

Interests

An applicant must 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)).
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Meagher County has established a number of interests in both the Moose
Creek Project and the Farm Bill categorical exclusion. In his declaration, County
Commissioner Rod Brewer identifies active forest management focusing on
wildfire concerns and fuel management as being of primary concern to the County.
(See Doc. 14-4 at 3-4.) Mr. Brewer also indicates that the County has been

involved in the administrative process related to the Project. (Id. at 5.) These
interests are legally protected and an injunction against the Project, or the Farm
Bill categorical exclusion, would impact them.
The logging associations have also established legally protected interests at
issue, including their collaborative work with the Forest Service and the potential
"source of contracts, employment, and income for ... members" these types of
projects provide. (Doc. 14-2 at 4; Doc. 14-3 at 6.) Although timber contracts have
not yet been awarded, the logging organizations have "a broader interest in any
litigation that might impede [their] ability to obtain timber from federal lands in the
future." Ctr.for Biological Diversity v. Gould, 2015 WL 6951295, at *2 (E.D.
Cal. Nov. 10, 2015).

C.

Impairment of Interest

Determination of this matter could substantially impact Meagher County and
those whose interests are represented by the logging associations. If Plaintiffs
prevail in challenging the Moose Creek Project, prevention of future logging could
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increase fire risk and decrease forest health by allowing further spread of insect
and disease infestation. (Doc. 14-3 at 6.) On a broader scale, if Plaintiffs are
successful in challenging the Farm Bill categorical exclusion, it will also affect
future contracts and employment for members of the logging associations. (See
Doc. 14-2 at 5.)
D.

No Adequate Representation

Finally, Proposed Defendant-Intervenors have met their burden of showing
inadequacy of representation. "The burden of showing inadequacy of
representation is 'minimal' and may be satisfied if the applicant can demonstrate
that representation of its interests 'may be' inadequate." Citizens for Balanced

Use, 647 F.3d at 898 (quoting Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir.
2003)). Because the Forest Service and Proposed Defendant-Intervenors share the
same ultimate objective -i.e., upholding the Forest Service's 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. US. Forest Serv., 573 F.3d 992, 996 (10th Cir. 2009)).
Here, while both the Forest Service and Proposed Defendant-Intervenors
seek to defend the regulatory process that was followed in this case, their ultimate
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goals are different. The Fore st Service is bound to follow the proper regulatory
process even if the Project does not proceed or proceeds in a way contrary to
Proposed Defendant-Intervenors' goals, rebutting the presumption of adequate
representation. Additionally, all three Proposed Defendant-Intervenors have an
economic interest in the Farm Bill categorical exclusion, and Meagher County has
specific economic interests in the Moose Creek Project. The County also has an
interest in tourism and local use of the forest not shared by the Forest Service. (See
Doc. 14-4 at 3, 5.) Because of these distinct interests, it has not been shown that
the existing parties can or will make all of the Proposed Defendant-Intervenors'
arguments.
CONCLUSION

Proposed Defendant-Intervenors satisfy the requirements for intervention as
a matter ofright. 1 Accordingly, IT IS ORDERED that their motion to intervene
(Doc. 14) is GRANTED. Defendant-Intervenors shall re-file their answer. The
caption is modified as reflected above.
IT IS FURTHER ORDERED that given the advanced stage of the
proceedings, Defendant-Intervenors may only file an opening brief for their cross-

1

Because Defendant-Intervenors can intervene as a matter of right, their
arguments for permissive intervention, see Fed. R. Civ. P. 24(b), and amicus status,
L.R. 7.5, are not addressed.
6

motion for summary judgment (limited to 6,500 words) on or before June 8, 2018
and reply brief (limited to 3,250 words) on or before July 13, 2018. No other
filings are permitted without leave of Court. The briefing schedule remains in full
force and effect in all other respects. (See Doc. 7.)
DATED this

tY J--day ofMay, 2018.
, District Judge
ct Court

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