Shirley et al v. Jewell et al

Filing 64

ORDER granting 19 Motion to Intervene. Signed by Magistrate Judge William G. Cobb on 6/12/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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PERSHING COUNTY, et. al.

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3:14-cv-00466-MMD-WGC
Plaintiffs,

ORDER ON MOTION TO INTERVENE

v.

(Doc. #19)

SALLY JEWELL, et. al.

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Defendants.

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Before the court is Defendant – Intervenor’s Motion to Intervene filed by the American

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Wild Horse Preservation Campaign (AWHPC) and Debra Davenport (Ms. Davenport).

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(Doc. #19.) 1 Plaintiffs Pershing County, Tim DeLong Family Trust, Duncan Family 2002 Trust,

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Jim Estill, Forest (Woodie) Bell, Vesco Ranch, Inc., and C Punch Ranch, Inc., filed a response in

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opposition. (Doc. #50.) The AWHPC and Ms. Davenport filed a reply. (Doc. #57.) A hearing

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was held on Defendant – Intervenors’ Motion on Monday, June 8, 2015.

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I. BACKGROUND

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On September 15, 2014, Plaintiffs filed their complaint for writ of mandamus, for

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declaratory judgment or for unreasonable delay, and such other relief under the Wild and Free

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Roaming Horses & Burro Act, 16 U.S.C. § 1331, et. seq., (the Act), the Administrative

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Procedure Act, 5 U.S.C. § 551, et. seq. (the APA), and other federal statutes and regulations

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related to the management of wild horses and burros in Nevada. (Doc. #1.) The named

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defendants include the United States Department of the Interior (COI); the Honorable Sally

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Jewell (Secretary of the Interior); the Bureau of Land Management (BLM); Neil Kornze (Deputy

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Refers to court’s docket number. The AWHPC and Ms. Davenport accompanied their motion with the
following: Doc. #19-1 (Memo in Support of Motion to Intervene); Doc. #19-2 (Suzanne Roy Decl.); Doc. #19-3
(Laura Leigh Decl.); Doc. #19-4 (Debra Davenport Decl.); Doc. #19-5 (Financial Disclosure Statement); Doc. #19-6
(Certificate of Service); Doc. #19-7 (Proposed Order); Doc. #19-8 ([Proposed] Answer)

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Director, BLM); Amy Leuders (State Director, Nevada State Office, BLM); Gene Seidlitz

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(Manager for the Winnemucca District of BLM) (hereinafter collectively referred to as “Federal

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Defendants”). (Id.)

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Plaintiffs allege that Federal Defendants’ failure to address wild horse and burro

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populations that are in excess of the appropriate management levels (“AML”) for various public

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lands within the Winnemucca BLM District, which includes on public lands with designated

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Herd Areas (“HAs”) or Herd Management Areas (“HMAs”), as well as non-HMA designated

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public and private, have led to problems with vehicular traffic and with personal and real

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property in Pershing County. (Id.) Plaintiffs seek, among other relief, a writ of mandamus

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ordering Federal Defendants to immediately remove all the wild horses and wild burros within

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each of the HMA(s) and HA(s) within the Tim Delong Family Trust, Jim Estill, Vesco Ranch,

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LLC., Duncan Family 2002 Trust, Forrest (Woodie) Bell, C Punch Ranch, Inc., allotments, and

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further to maintain the wild horse and wild burros numbers so as to not exceed the appropriate

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management level already determined by Federal Defendants. (Id.) Furthermore, Plaintiffs want

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the court to order, declare, and adjudge that an “overpopulation” of wild horses and wild burros

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exists upon the public lands; that Federal Defendants must immediately remove the

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“overpopulation” to “achieve appropriate management levels”; and that Federal Defendants

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unlawfully withheld and/or unreasonably delayed the removal of “excess” wild horses and wild

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burros within each of the HMA(s) and HA(s) within the aforementioned allotments. (Id.)

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On February 13, 2015, the Federal Defendants filed an answer. (Doc. #18.)

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On March 19, 2015, the AWHPC and Ms. Davenport (hereinafter collectively referred to

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as “proposed intervenors” or “movants”) filed their Motion to Intervene, (Doc. #19.) In support

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of their motion, Plaintiffs included declarations from Suzanne Roy, Director of the AWHPC, and

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Debra Davenport. (Doc. #19-2, Doc. #19-4.)
II. LEGAL STANDARD

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Federal Rule of Civil Procedure 24 governs intervention and provides for intervention (1)

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as a matter of right (Fed. R. Civ. P. 24(a)) and (2) permissive intervention (Fed. R. Civ. P.

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24(b)).

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Intervention as a matter of right must be granted if on timely motion, the proposed

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intervenor can establish that the right to intervene is provided unconditionally by federal statute

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or “claims an interest relating to the property or transaction that is the subject of the action, and

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is so situated that disposing of the action may as a practical matter impair or impede the

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movant’s ability to protect is interest, unless existing parties adequately represent that interest.”

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Fed. R. Civ. P. 24(a).

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In the Ninth Circuit, an applicant seeking to intervene as a matter of right must

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demonstrate: (1) the intervention application is timely; (2) the applicant has a significant

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protectable interest relating to the property or transaction that is the subject of the action; (3) the

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disposition of the action may, as a practical matter, impair or impede the applicant’s ability to

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protect its interest; and (4) the existing parties may not adequately represent the applicant’s

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interest. Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2012)

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(citations and quotation marks omitted); see also Wilderness Soc. v. U.S. Forest Serv., 630 F.3d

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1173, 1177 (9th Cir. 2011).

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Permissive intervention also requires a timely motion, and may be granted to an applicant

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who has a “conditional right to intervene by a federal statute” or “has a claim or defense that

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shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1). In

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deciding whether to grant permissive intervention, “the court must consider whether the

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intervention will unduly delay or prejudice the adjudication of the original parties’ rights.”

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Fed. R. Civ. P. 24(b)(3).

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Regardless of whether the applicant seeks to intervene as a matter of right or

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permissively, the Ninth Circuit has established a liberal policy favoring intervention. Wilderness

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Soc., 630 F.3d at 1179. This allows for “both efficient resolution of issues and broadened access

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to the courts.” Id. (citations and quotation marks omitted).

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III. DISCUSSION

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Proposed intervenors seek to intervene as a matter of right, and alternatively, request

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permissive intervention. The Federal Defendants take no position concerning proposed

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intervenor’s Motion to Intervene. The Plaintiffs have a filed a response in opposition to the

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motion to intervene. The court will first address whether they are entitled to intervene as a matter

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of right, and then will turn to the question of permissive intervention as an alternative request.

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A. INTERVENTION AS A MATTER OF RIGHT

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1. Timeliness

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Timeliness is “the threshold requirement’ for intervention as of right.” League of United

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Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997) (quoting United States v. Or,

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913 F.2d 576, 588 (9th Cir. 1990)). In determining whether a motion to intervene is timely, a

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court should consider: “(1) the stage of the proceeding at which an applicant seeks to intervene;

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(2) the prejudice to other parties; and (3) the reason for and length of [any] delay.” Id. (quotation

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marks omitted).
The motion is timely because no other proceedings or motions were filed between the

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Federal Defendants’ answer and this motion, a time period of one month. Additionally, Plaintiffs

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do not contest the timeliness of the motion to intervene. Therefore this factor weighs in favor of

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granting the motion to intervene.

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2. Is there a Significant Protectable Interest?

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The applicant seeking to intervene as a matter of right must show that the “interest is

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protectable under some law and that there is a relationship between the legally protected interest

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and the claims at issue.” Wilderness Soc., 630 F.3d at 1179 (citation and quotation marks

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omitted). This can be demonstrated if the applicant “will suffer a practical impairment of its

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interest as a result of the pending action.” Id. (citation and quotation marks omitted). “[N]o

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specific legal or equitable interest need be established.” Citizens for Balanced Use, 647 F.3d at

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897 (citations and quotation marks omitted).

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The AWHPC contends that it has a significant protectable interest in preserving the

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American wild horse and burro in viable free-roaming herds on public lands for future

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generations. (Doc. #19-2 at 3 ¶ 1.) It contends that Nevada is home to over half the nation’s wild

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horses and burros. BLM estimates that there are approximately 42,209 wild horses and burros in

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public lands throughout the West and over 25,000 live in Nevada alone. (Doc. #19-2 at 5 ¶ 10.)

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The AWHPC therefore argues that any decision regarding the roundup and removal of wild

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horses concerns the AWHPC. (Id.) Specifically it seeks to intervene to ensure that the court

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receives accurate information about wild horses and burros, their population numbers, and the

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impacts of wild horses and burros on the range. (Doc. #19-2 at 5 ¶ 9.)

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The AWHPC states it constantly monitors government agency decisions that affect wild

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horses—including decisions authorizing government roundups, and the impacts of those

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decisions on wild horses—in an effort to ensure that wild horses remain protected on public

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lands as Congress intended under the Act. (Doc. #19-2 at 3 ¶ 4.) It also prepares alerts, published

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by federal government agencies, in its campaigns, advocacy efforts, and public education

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activities to notify interested citizens and its members about the opportunity to comment on

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BLM management decisions and agency processes. (Doc. #19-2 at 4 ¶ 6.)
Ms. Davenport contends that she personally has a significant protectable interest in the

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outcome of this lawsuit because she writes about and posts photographs of the Nevada desert

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landscape and the wild horses on her blog. (Doc. #19-4 at 2 ¶ 2.) Additionally, Ms. Davenport

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plans on returning to this area at least twice a year for the foreseeable future to explore the

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Kamma Mountains and other HMAs to look for other wild horses. (Doc. #19-4 at 4 ¶ 6.)

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The Ninth Circuit has found that there is a significant protectable interest in conserving

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and enjoying the wild and preserving species and their habits. See Citizens for Balanced Use,

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647 F.3d at 897-98 (finding wilderness conservation groups had significant protectable interest

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in conserving and enjoying the wilderness); United States v. Carpenter, 526 F.3d 1237, 1240

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(9th Cir. 2008) (environmental groups found to have protectable interest in using and preserving

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public lands); Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir. 1983) (intervention

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proper where intervenor sought to preserve birds and habitats); see also San Juan County v.

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United States, 503 F.3d 1163, 1199 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63

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(1992)) (“[T]he desire to use or observe an animal species, even for purely aesthetic purposes, is

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undeniably a cognizable interest for purpose of standing.”).

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Here, the movants both assert a significant protectable interest in the management and

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preservation of these wild animals under the Act and other federal laws and regulations.

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Plaintiffs do not contest this second factor. The movants have shown a significant protectable

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interest in preserving the wild horses in their natural habitat, of enjoying them aesthetically, and

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of providing information so that BLM makes an informed decision. Therefore, this factor weighs

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in favor of granting intervention as a matter of right.

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3. Will the Disposition Impede the Applicant’s Ability to Protect Its Interest?

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“If an absentee would be substantially affected in a practical sense by the determination

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made in an action, he should, as a general rule, be entitled to intervene . . . .” Fed. R. Civ. P. 24

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advisory committee’s note to 1966 Amendment.

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The AWHPC contends that the relief sought by the Plaintiffs will impair its interests and
those of its members because the result of the requested relief would frustrate the AWHPC’s

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mission of preserving and protecting wild free-roaming horses in the state of Nevada by

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removing these wild horses from public lands and by affecting how BLM manages wild horses

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in the future. (Doc. #19-2 at 4-5 ¶ 7, 8.) The AWHPC represents it works with government

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agencies in Nevada to implement solutions for on-the-range management of wild horses in their

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habitats with the goal of preventing captures and removals; thus, any relief granted to Plaintiffs

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undeniably would prevent the AWHPC from carrying out its goal. (Doc. #19-2 at 3 ¶ 3.)

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Ms. Davenport contends that a determination in Plaintiff’s favor in this action would

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devastate wild horse herds in the areas in which she currently enjoys observing them and would

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significantly prevent her from writing about and photographing wild horses on the range. (Doc.

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#19-4 at 5 ¶ 11.) Specifically, the rounding up and removing of wild horses will extinguish

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opportunities for her to observe specific horse bands that she has connected with over the years

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as well as severing the familial ties of these horse populations. (Id.)

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If Plaintiffs succeed in this action in obtaining a writ of mandamus requiring, among

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other things, the immediate gathering of “excess” animals, the removal of the “excess” animals,

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then these intervenors’ interests would undoubtedly be impaired. The proposed intervenors both

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advocate that this would have the practical result of greatly reducing or decimating the wild

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horse population in Nevada. Assuming this is the case, the AWHPC would be deprived of the

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opportunity to view these animals in their natural state, of educating the public about these

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animals, and of affecting how BLM manages wild horses now and in the future. (Doc. #19-

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2 at 5 ¶ 8.) Ms. Davenport would be deprived of the opportunity to view, write about, and

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photograph these animals in the wild. (Doc. #19-4 at 5 ¶ 11.)

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Plaintiffs contend that BLM has already determined the AML standards and the import of

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this lawsuit is simply that BLM has failed to enforce its own policies and procedures. (Doc. # 50

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at 14.) Furthermore, Plaintiffs contend that the disposition of the present case will not impair or

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impede movants’ interests because any remedy that movants can legitimately seek will still be

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available once the BLM enforces AML standards. (Doc. #50 at 22.) However, it appears to the

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court that movants’ interests would be significantly impaired inasmuch as the Plaintiffs’ relief

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calls for the removal of wild horses to which the movants are directly opposed. It is reasonably

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foreseeable that the absence of movants in this lawsuit and any decision entered in this matter

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would be detrimental to the protection of movants’ interests. Therefore, this factor weighs in

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favor of granting intervention as a matter of right.

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4. Are the Movants’ Interests Adequately Represented by Existing Parties?

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The Ninth Circuit evaluates the adequacy of representation by existing parties by

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examining three factors: “(1) whether the interest of a present party is such that it will

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undoubtedly make all of a proposed intervenor’s arguments; (2) whether the present party is

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capable and willing to make such arguments; and (3) whether a proposed intervenor would offer

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any necessary elements to the proceedings that other parties would neglect.” Arakaki v.

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Coyetano, 324 F.3d 1078, 1086 (9th Cir. 2003). “The ‘most important factor’ in assessing the

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adequacy of representation is ‘how the [applicant’s] interest compares with the interests of

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existing parties.’” Citizens for Balance Use, 647 F.3d at 898 (quoting Arakaki, 324 F.3d at

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1086). However, where “an applicant for intervention and an existing party share the same

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ultimate objective, a presumption of adequacy of representation arises.” Id. (citation omitted).

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This presumption of adequacy applies when the government is acting on behalf of a constituent

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and it must be rebutted with a “compelling showing” of inadequacy. Id.

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Finally, the movants need not show with absolute certainty that an existing party will not

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adequately represent their interest. Citizens for Balanced Use, 647 F.3d at 900. It is enough to

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show that the existing parties may not adequately represent their interests. Id.

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The AWHPC contends that the relief sought by the Plaintiffs directly conflicts with the

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AWHPC’s mission of protecting and preserving wild horse herds on public lands; therefore,

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Plaintiffs do not share the AWHPC’s interests. (Doc. #19-2 at 6 ¶ 11.) Similarly, the AWHPC

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contends that the Federal Defendants also do not represent its interest because BLM is

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responsible for balancing the interests of private livestock grazing and wild horses on public

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lands but consistently favors the interests of cattle grazing. (Doc. #19-2 at 6 ¶ 12.)

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Ms. Davenport contends that neither the Plaintiffs’ nor the Federal Defendants share her

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interests or can adequately represent her interests. (Doc. #19-4 at 6 ¶ 12.) She claims that the

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Plaintiffs’ interest in removing as many wild horses as possible is directly adverse to her

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interests, which depends on the presence of wild horses. (Id.) She likewise claims that the

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Federal Defendants are not likely to represent her interests because Federal Defendants tend to

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favor livestock owners and other agricultural interests at the expense of wild horses and those

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who advocate for their preservation. (Doc. #19-4 at 6 ¶ 13.)

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Plaintiffs contend that the movants incorrectly represent Plaintiffs’ intent and the overall

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purpose of this litigation. (Doc. #50 at 4.) Plaintiffs assert that their interests in fact align with

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those of the movants because both parties have the welfare of the animals and the public lands at

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heart. (Id.). Plaintiffs’ claim that BML has failed to maintain and manage the numbers of wild

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horses and burros as set by BML in the AML standard for each designated HMA, leading to an

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excess of wild horses and burros that disrupt the natural thriving ecological balance. (Doc. #50 at

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14.) Plaintiffs’ main contention is that they seek the enforcement of AML standards and not the

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removal of every single wild horse and burro from the public lands in question. (Doc. #50 at 24.)

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In response, the AWHPC and Ms. Davenport contend they seek to preserve and protect

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their professional, aesthetic, recreational, education, and other interests in the wild horses that

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use the public lands at issue. (Doc. #57 at 2.) They argue that Plaintiffs’ response relies on “two

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false premises”: (1) all of the parties agree with Plaintiffs’ reading of the applicable statutes, the

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Act and the APA, and (2) that a party adequately represents the AWHPC and Ms. Davenport’s

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interests if they share any generalized interest in the subject matter of the case. (Doc. #57 at 3.)

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The court agrees with the movants that their interests are not adequately represented by

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either the Plaintiffs because their positions are diametrically opposed to one another. The

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movants assert that Plaintiffs incorrectly assume that the parties agree about how the Act should

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be interpreted when in fact the parties fundamentally disagree with one another’s interpretation.

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(Doc. #57 at 5.) Movants claim that the Act does not mandate the removal of any or all horses

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above AML to achieve the BLM’s goal of management actions (Doc. #57 at 6), while the

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Plaintiffs claim the exact opposite. (Doc. #50 at 25.) Because the parties have opposing

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interpretations of the Act, it is unlikely that Plaintiffs will be able to adequately represent

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movants’ interests in this lawsuit. Furthermore, although Plaintiffs and movants share an

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appreciation and concern for wild horses and burros, their ultimate objectives seemingly differ

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which suggests that Plaintiffs may not adequately represent movants’ interests.

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Similarly, the movants claim that they have different interests from those of the Federal

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Defendants and therefore they would not adequately represent movants’ interests. Although there

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might exist some overlap of interests and positions, the Federal Defendants, who as noted above

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did not take a position on movants’ request for intervention, cannot be said to adequately

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represent the personal, professional and educational interests asserted by the movants. Nor can

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the Federal Defendants be said to adequately represent the economic, aesthetic and

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environmental interests asserted by the movants.

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While the government is presumed to represent the interests of its citizens, the movants

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have adequately rebutted this presumption. According to the movants, BLM is responsible for

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balancing the interests of private livestock grazing and wild horses on public lands, but in its

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opinion, favors the interests of cattle grazing. (Doc. #19-2 at 6 ¶ 12; Doc. #19-4 at 6 ¶ 13.) The

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movants, on the other hand, are interested in protecting and preserving the wild horses and

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burros on public lands. (Doc. #19-2 at 3 ¶ 4; Doc. #19-4 at 6 ¶ 12.) Since the Federal Defendants

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would be responsible for balancing both public and private interests, it is a reasonable

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assumption that the Federal Defendants’ interests may diverge from those of the movants.

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Therefore, the court finds the movants have made a compelling showing that the Federal

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Defendants would not adequately represent their interests in this matter.

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Thus, this final factor weighs in favor of granting intervention to the movants as a matter
of right.

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5. Conclusion

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The movants have shown that their motions were timely, that they have a significant

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protectable interest in this action, that the disposition of the action may impair their ability to

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protect their interests, and that the existing parties may not adequately represent their interests.

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As such, the movants are entitled to intervene as a matter of right under Federal Rule of Civil

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Procedure 24(a).

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B. PERMISSIVE INTERVENTION

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The movants alternatively request that they be allowed to intervene permissively.

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The movants contend that their motion is timely, federal question jurisdiction exists, and

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the claims and defenses concern common questions of law and fact with the main action. (Doc.

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#19-1 at 2.) This motion to intervene is timely as aforementioned. The court has federal question

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subject matter of the action even with the addition of the intervenors. The movants’ claims or

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defenses share a common question of law or fact with the main action, and there is no evidence

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that their intervention will result in an undue delay in this action or will prejudice the

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adjudication of the existing parties’ rights. Accordingly, the movants are likewise entitled to

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intervene permissively under Federal Rule of Civil Procedure 24(b).
IV. CONCLUSION

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The motion to intervene of AWHPC and Ms. Davenport is GRANTED. The movants are

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entitled to intervene as a matter of right, and alternatively, may intervene in this action

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permissively.

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IT IS SO ORDERED.

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DATED: June 12, 2015.

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______________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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