Western Energy Alliance v. Jewell et al

Filing 38

MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson DENYING #11 Motion to Intervene. (mag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________
WESTERN ENERGY ALLIANCE,
Plaintiff,
v.

No. CIV 16-0912 WJ/KBM

SALLY JEWELL, in her official capacity
as Secretary of the United States
Department of the Interior, and
BUREAU OF LAND MANAGEMENT,
Defendants,
and
THE WILDERNESS SOCIETY,
WYOMING OUTDOOR COUNCIL,
SOUTHERN UTAH WILDERNESS
ALLIANCE, SAN JUAN CITIZENS
ALLIANCE, GREAT OLD BROADS FOR
WILDERNESS, SIERRA CLUB,
WILDEARTH GUARDIANS, CENTER
FOR BIOLOGICAL DIVERSITY, and
EARTHWORKS,
Applicants for Intervention.
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO INTERVENE
THIS MATTER comes before the Court upon the Motion to Intervene, filed October 19,
2016 (Doc. 11) by the Applicants for Intervention (“Applicants”). The Court, after considering
the written and oral arguments of the parties and the applicable law, finds that the motion to
intervene filed by Applicants is not well-taken and, therefore, is denied because the Applicants

have not shown either that their interests would be impeded by this litigation or that their
interests cannot be adequately represented by existing parties.1
BACKGROUND
In this case, Plaintiff Western Energy Alliance (“Plaintiff” or “Western Energy”) asserts
claims in connection with a new Bureau of Land Management (“BLM”) policy reforming oil and
gas leasing on public lands, referred to in the briefs as “Instruction Memorandum 2010-117” or
“IM 2010-117,” or “Leasing Reform Policy.”2 The complaint asserts three counts: a Freedom of
Information Act (“FOIA”) Violation, 5 U.S.C. §552 (Count 1); a request for a declaration that
BLM’s leasing policies and practices violate the Mineral Leasing Act, 30 U.S.C. §226(b)(1)(A)
(Count 2); and an assertion that BLM’s actions in scheduling and administering oil and gas lease
sales violates the Mineral Leasing Act (Count 3). The Applicants represent environmental
groups seeking to protect public lands from the impacts of oil and gas development, see Doc. 11
at 8-12, and seek intervention as of right under Fed.R.Civ.P.24(a)(2) or alternatively, permissive
intervention under Fed.R.Civ.P. 24(b).3 Applicants claim that Western Energy seeks to revise or
rescind the Leasing Reform Policy in order to minimize BLM’s well-established discretion over
oil and gas leasing and that Western Energy seeks to replace the Leasing Reform Policy with a
legal mandate requiring BLM to continually offer new leases without adequate environmental
reviews or full consideration of other resources.

1

The Court notes for the record that the U.S. Government Defendants take no position on the motion to intervene.
Doc. 11 at 3.
2

A copy of the Leasing Reform Policy is attached as Exhibit 3. The Court’s general description of the policy does
not include specific citations to the document, since those references are contained in the briefs.
3

The request to intervene concerns only Counts 2 and 3. BLM has agreed to provide the Applicants with copies of
documents released to Western Energy in response to Western Energy’s FOIA request, which relates to Count 1.
See Doc. 11 at 3. Pending motions to dismiss challenge subject matter jurisdiction, but only as to Counts 2 and 3.
See Docs. 19 and 20.

2

The Mineral Leasing Act gives the BLM broad discretion to decide whether to lease
lands for oil and gas development. 30 U.S.C. § 226(a). Before deciding to offer a lease for sale,
BLM must conduct an environmental review under the National Environmental Policy Act
(“NEPA”). See N.M. ex rel. Richardson v. BLM, 565 F.3d 683, 703-04 (10th Cir. 2009). NEPA
requires federal agencies to prepare a detailed environmental impact statement (“EIS”) for all
“major federal actions significantly affecting the quality of the human environment.” 42 U.S.C.
§4332(C). To determine whether a proposed action may significantly affect the quality of the
human environment, thus requiring an EIS, agencies can prepare a shorter environmental
assessment (“EA”). See Richardson, 565 F.3d at 703; 40 C.F.R. § 1501.4. Based on the EA, a
federal agency either concludes its analysis with a finding of no significant impact (“FONSI”) or
the agency must prepare a full EIS. Richardson, 565 F.3d at 703-04. If an EIS is required, it
must describe the environmental impact of the proposed action and evaluate alternatives. Id. At
all stages of the EIS process, the public must be informed and its comments considered. Id. at
704. Under Tenth Circuit precedent, the BLM must complete its environmental analysis of
reasonably foreseeable development before issuing oil and gas leases. Richardson, 565 F.3d at
716-18; Pennaco Energy v. U.S. Dep’t of Interior, 377 F.3d 1147, 1160 (10th Cir. 2004).
The Applicants claim that for years, BLM allowed little public input or opportunity to
comment while the agency considered leasing particular land parcels, in many situations
relegating public input to filing administrative appeals after BLM already made its leasing
decisions. See Ex. 1 (Hanceford Decl), ¶¶14-15. In June 2009, the Department of the Interior
conducted a review of BLM’s leasing procedures, which eventually led to BLM’s issuance of IM
2010-117 on May 17, 2010. This Leasing Reform Policy is intended to improve the agency’s
environmental reviews and to provide greater opportunity for meaningful public involvement,

3

including interdisciplinary reviews by a team with expertise in numerous types of natural
resources (wildlife, air quality, water, historic and cultural resources); specialists from other
agencies where appropriate; and the requirement of a site visit to evaluate the lands under
consideration for leasing. The Leasing Reform Policy calls for a consideration of a variety of
environmental issues, and increases the transparency of the leasing process in that it directs BLM
to consult with groups that may be affected by the leasing decisions, such as other federal
agencies, tribal governments and state and local governments. Members of the public “with an
interest in local BLM oil and gas leasing” are to be “kept informed” and invited to comment
during the NEPA process. Ex. 3, §III(C)(7), (E).
The new Leasing Reform Policy includes a “rotating” sales schedule to allow each field
office within a state sufficient time to implement the new parcel review policy. It also provides
for a new planning tool called the Master Leasing Plan Process which allows for a better plan in
areas where oil and gas companies have expressed interest in development that may conflict with
other resources.

Ex. 3, §II. A Master Leasing Plan Process identifies resource conflicts and

develops approaches that would best address or mitigate these conflicts (such as prohibiting
surface occupancy or closing an area to leasing). Id.
At oral argument, counsel for Applicants stated that environmental groups had worked to
have some input in this new BLM leasing policy, although the end result was a “compromise”
between the agency and the various environmental groups.
DISCUSSION
Applicants seek intervention under both Rule 24(a) and 24(b). Western Energy claims
that this lawsuit does not threaten, or even implicate, any of the alleged interests of the
Applicants.

4

I.

Parties’ Positions
Some background on where the parties stand is relevant to whether Applicants should be

part of this lawsuit. Western Energy claims that its objective in this lawsuit is to require the
BLM to adhere to its obligations under the Mineral Leasing Act to hold lease sales “for each
State where eligible lands are available at least quarterly and more frequently if the Secretary
of the Interior determines such sales are necessary.” 30 U.S.C. §226(b) (emphasis added). The
complaint alleges that the Secretary of the Interior has failed to meet this obligation because
there have been occasions where “eligible lands are available” and the BLM has still declined to
conduct quarterly lease sales as required under the Act. Plaintiff notes that IM No. 2010-117, or
the Leasing Reform Policy itself, incorporates the requirement that “State Offices will continue
to hold lease sales four times per year, as required by the Mineral Leasing Act, section
2269b)(1) and 43 CFR 3120.1-2(a), when eligible lands are determined by the state office to be
available for leasing.” Ex. 3, III(A) (emphasis added). However, Plaintiff asserts that the
Leasing Reform Policy offers no guidance for the administration of lease sales that would carry
out these terms:
121. BLM State Offices frequently schedule, postpone, cancel, delay, or organize lease
sales in a manner that results in more than three months passing without any parcel in an
individual State being offered for lease. BLM schedules and conducts lease sales without
consideration of whether parcels located within each State are available for leasing.
122. BLM has no policy or guidance in effect prescribing the administration of lease
sales in a manner compliant with the Mineral Leasing Act.
123. The manner in which BLM is presently scheduling and administering oil and gas
lease sales violates the express terms of the Mineral Leasing Act.
Compl., ¶¶ 121, 122 & 123.
The Applicants contend that the BLM’s Leasing Reform Policy has increased
transparency and public input on the agency’s leasing decisions, and that Western Energy’s
5

challenge to the policy “threatens to transform” BLM’s discretion over oil and gas leasing “into a
legal mandate to continually offer new leases without adequate environmental reviews or full
consideration of other resources.” Doc. 11 at 2. They claim that Western Energy seeks a ruling
that BLM must offer oil and gas leases for sale every three months “wherever a company
expresses interest in leasing public lands.” Doc. 11 at 2. The Complaint, however, does not state
anywhere that Plaintiff seeks a ruling that oil and gas leases must be sold whenever a company
expresses interest. Instead, the Complaint asserts that the BLM must make land “available for
lease if a parcel is available for oil and gas leasing and an expression of interest has been
submitted for that parcel.” Compl., ¶120 (emphasis added). The Applicants also claim that
Plaintiff wishes to “revise or rescind” the Leasing Reform Policy, and are concerned that if
Plaintiff prevails, all the work done by the various environmental groups in helping to develop
the new reform policy will be undone.
At the hearing on the motion to intervene, Plaintiff clarified on the record what this case
is and what it is not about, and the Court agrees with Plaintiff that Applicants’ description of this
case is very different from the case actually before the Court. Western Energy seeks to require
BLM to hold lease sales where eligible lands are available; that is, to comply with the provision
of the Mineral Leasing Act and BLM’s own Leasing Reform Policy which is consistent with the
statutory mandate. Under both the Mineral Leasing Act and BLM’s Leasing Reform Policy,
quarterly lease sales are mandated unless no eligible parcels of land are available. Plaintiff
alleges that BLM is delaying or cancelling sales for reasons other than non-eligibility of
available lands, which Plaintiff asserts is illegal under the statute and contrary to BLM’s own
Leasing Reform Policy.

6

After hearing from the parties and reviewing the Complaint and other pleadings filed in
this case, the Court is convinced that this case is not an attempt to set aside or modify the
Leasing Reform Policy, nor is it a challenge to the Leasing Reform Policy. Plaintiff simply
seeks to hold BLM to those provisions which track BLM’s obligations under the Mineral
Leasing Act. Additionally, this case does not challenge BLM’s discretion to determine when and
how land parcels became “eligible” or BLM’s right to withhold parcels, or BLM’s discretion to
determine when further environmental analysis is necessary for any parcel of land.4 Thus, while
quarterly lease sales of “eligible” lands are mandatory under the Mineral Leasing Act, BLM still
has complete discretion to decide which parcels are offered for lease sale to oil companies. The
Applicants note that the Complaint seeks relief to “revise or rescind” BLM’s “guidance and
instructional memoranda . . . that direct implementation of BLM’s lease sale program in a
manner contrary to law.” Compl., at 29 (Prayer for Relief). However, at the hearing, Plaintiff’s
counsel explained that Western Energy was not directly seeking any revisions of the Leasing
Reform Policy and that this request for relief was “cosmetic” in nature and was not part of any
stated claim. Such language was included as requested relief in the complaint in the event the
Court found any provisions in the policy to be inconsistent with the Mineral Leasing Act.
Counsel recognized that while no policy has the force of a statute, Plaintiff’s position was that
the Mineral Leasing Policy should nevertheless be consistent with the Mineral Leasing Act and
where it is not, the Court may find it appropriate to “revise or rescind” BLM instructional
memoranda which is contrary to that law. See Doc. 17 at 6, n.2. Counsel further explained that
Plaintiff did not take the position that the Leasing Reform Policy was inconsistent with the
Mineral Leasing Act, because in fact, the Leasing Reform Policy is consistent with the Act’s

4

At the hearing, counsel for Applicants criticized Plaintiff’s interpretation of “eligible” as being very broad, but this
observation is pointless because BLM has complete authority to determine leasing eligibility.

7

quarterly sales mandate for eligible land parcels—which is the prime issue in this case. The
Court accepts the representations of Plaintiff’s counsel and will hold Plaintiff to those
representations.
Thus, the central issue in this case turns out to be fairly discrete. Western Energy seeks a
declaration that BLM’s practice of canceling or deferring lease sales less frequently than
quarterly, for reasons other than lack of eligible parcels, is illegal under the Mineral Leasing Act.
Focusing on the central issue in this case, the question then before the Court on this motion is
whether the Applicants should be allowed to intervene.
II.

Intervention as of Right
Under Fed. R. Civ. P. 24(a), a movant is entitled to intervene as of right if: (1) the motion

to intervene is timely; (2) the movant claims an interest in the property or transaction that is the
subject of the action; (3) the movant’s interest may “as a practical matter” be impaired or
impeded by the litigation; and (4) the movant’s interest is not adequately represented by existing
parties. See, e.g., WildEarth Guardians v. Nat’l Park Serv., 604 F.3d 1192, 1196–98 (10th Cir.
2010) (Nat’l Park Serv.); Okla. ex rel. Edmondson v. Tyson Foods, Inc., 619 F.3d 1223, 1231
(10th Cir. 2010). The Tenth Circuit follows “a somewhat liberal line in allowing intervention.”
Id. (quoting WildEarth Guardians v. U.S. Forest Serv., 573 F.3d 992, 995 (10th Cir. 2009). The
Rule 24 factors “are not rigid, technical requirements” and the “determination of a party’s right
to invervene is, at least in part, a process of equitable balancing. San Juan County, Utah v. U.S.,
503 F.3d 1163, 1195 (10th Cir. 2007).
A.

Timeliness

8

Plaintiff does not contest the timeliness of the Applicant’s motion, see Doc. 17 at 5, and
so the Court assumes that this factor has been met, especially considering that this litigation is
still in its early stages.
B.

Interest in Subject Matter

Applicants claim an interest in the subject matter of this litigation. They have submitted
numerous declarations to support their claim to an interest in the leasing reforms they have
advocated for, and an interest in protecting public lands from the impacts of oil and gas drilling.
Western Energy contends that this lawsuit does not implicate either of these interests because the
lawsuit does not seek to change any existing law, regulation, or practice governing the
administration of oil and gas leasing but on the contrary, seeks to have existing law enforced in
the form of the BLM’s current Leasing Reform Policy.
The Court finds that the Applicants do have a legally protectable interest in this litigation.
Just because Western Energy is not seeking a change in existing law does not mean that the
Applicants have no interest in the subject matter of the lawsuit. See, e.g., N.M. Off-Highway
Vehicle All. v. U.S. Forest Serv., 540 F. App’x 877, 880 (10th Cir. 2013) (environmental groups
that had “participated in the administrative process by submitting comments and by appealing
[the challenged plan],” “easily” demonstrated an interest in later litigation); Coalition of
Ariz./N.M Counties for Stable Econ. Growth v. Dep’t of Interior, 100 F.3d 837, 841 (10th Cir.
1996) (party with a “persistent record of advocacy for [the environmental] protection[s]” adopted
by an agency that were subsequently challenged in court has a “direct and substantial interest”
sufficient “for the purpose of intervention as of right”).
C.

Impairment of Interests

9

Applicants have the minimal burden of demonstrating “that impairment of [their]
substantial legal interest is possible if intervention is denied.” WildEarth Guardians, 604 F.3d at
1199. Plaintiff contends that Applicant’s interests are not impaired by requiring the BLM to
conduct oil and gas lease sales in a manner consistent with the Mineral Leasing Act, and they
certainly have no legally protectable interest in having BLM cancel lease sales when eligible
lands are available, because that position would be contrary to federal statute.
(1)

Plaintiff’s Actual Claims

The Court agrees with Plaintiff that Applicants appear to be litigating an entirely different
lawsuit from the one that is before the Court, based on their description of Plaintiff’s claims.
Applicants claim that their interests may be impaired as a result of this litigation because
Plaintiff “asks this Court to strike down BLM’s Leasing Reform Policy” and because Plaintiff’s
request for declaratory relief “would fundamentally change the federal oil and gas leasing system
in a way that severely harms the Conservation Groups.” Doc. 11 at 17-18. Plaintiff is seeking
neither remedy. If Plaintiff prevails in this case, it will obtain a declaration stating that BLM
cannot legally cancel or defer lease sales on a less than quarterly basis for reasons other than lack
of eligible parcels. Plaintiff is not seeking to set aside or modify any part of the Leasing Reform
Policy, which the Court acknowledges that Applicants have worked hard to negotiate with BLM,
but Plaintiff wants BLM to be required to follow the provisions in the policy which mandate that
BLM is to offer eligible lands on a quarterly basis. The Applicants claim that Plaintiff’s
interpretation of “eligible” is very broad, but this is yet another unfounded misrepresentation of
Plaintiff’s claims because Plaintiff is not challenging any of the criteria BLM uses for
determining the “eligibility” of land parcels. Moreover, Plaintiff is not challenging BLM’s
discretionary authority to determine when, what, and how environmental concerns are addressed

10

on any federal land parcels, nor is Plaintiff challenging BLM’s withholding of certain land
parcels from sale in order to conduct revisions to Resource Management Plans (“RMP’s”).
The Court’s clarification of the issues in this case turns out to be critical to the
“impairment of interests” factors. Applicants cannot claim that their interests are impaired if
Plaintiff is not seeking an outcome that could potentially be adverse to their interests. In
N.M.Off-Highway Vehicle Alliance v. United States Forest Service, 540 F.App’x 877, 882 (10th
Cir. 2013), the Tenth Circuit reversed the district court’s (the undersigned) denial of a motion to
intervene by various environmental groups. In that case, plaintiff (“NMOHVA”) challenged the
United States Forest Service’s final agency action implementing a travel management plan (“the
Plan”) designating roads and trails in the Santa Fe National Forest allowing motorized vehicles.
The Plan significantly reduced the number of roads and trails previously available for motorized
vehicle use. NMOHVA sought reimplementation of the prior use policy. In reversing the
district court, the Tenth Circuit found in part that the proposed intervenors met their “minimal
burden” of the impairment of interest factor. Citing San Juan County, Utah v. U.S., 503 F.3d
1163, 1203 (10th Cir. 2007), the court stated that “intervention may be based on an interest that
is contingent upon the outcome of the litigation,” explaining that the environmental groups
would be impaired “if the outcome of the district court litigation is other than upholding” the
Forest Service’s Plan. 540 Fed.Appx. at 880. In the N.M. Off-Highway case, plaintiff was not
interested in keeping the Plan intact, but sought reimplementation of a prior policy that allowed
motorized vehicles on more forest roads. The outcome of litigation could have resulted in major
changes to the Plan and therefore likely have impaired the interests of the environmental groups
that sought to intervene.

11

This case is different. Western Energy is not interested in changing BLM’s Leasing
Reform Policy and therefore the “outcome of litigation” will not be something other than
upholding the policy. The interest “contingent on the outcome of the litigation” is an interest
shared by both Western Energy as well as the Applicants. Western Energy seeks to hold BLM to
its obligations under the Mineral Leasing Act as it is presented in the provisions of the Leasing
Reform Policy, and Applicants likewise want to ensure that the policy is not changed in any way.
(2) Supplemental Authority
At oral argument, Plaintiff referenced a case with analogous facts, where the court’s
denial of a request to intervene also rested on an accurate understanding of the plaintiff’s claims.
Because this case was presented for the first time at oral argument, Plaintiff and Applicants were
allowed to supplement the record based on this case. See Docs. 34 & 35. The Court has reviewed
these supplemental pleadings and finds the case to be helpful even though it is not binding
precedent. In Environmental Integrity Project v. McCarthy, the roles were somewhat reversed.
The plaintiffs in McCarthy consisted of a coalition of environmental advocacy groups which
filed the lawsuit in an attempt to “spur some administrative action” by the Environmental
Protection Agency (“EPA”) to review or revise federal regulations relating to waste products
from oil and gas drilling. The applicants for intervention as of right were several industry trade
associations. 2016 WL 6833931 (D.D.C., 2016). Applicants in the instant case argue that the
McCarthy case has no bearing on the intervention question because in the D.C. Circuit, an
applicant for intervention must show Article III standing, which is not required in the Tenth
Circuit. Cmp. San Juan Cty., Utah v. U.S., 503 F.3d 1163, 1167 (10th Cir. 2007) (applicants for
invention need not establish standing so long as there is standing for the original party on the
same side of the litigation as the intervenor). Nevertheless, the Court finds that the well-

12

reasoned opinion by U.S. District Judge John D. Bates in McCarthy is informative because the
“concrete harm” analysis for standing is sufficiently close to “impairment of interests” analysis
under Rule 24. McCarthy is also informative because of the court’s treatment of the applicants’
hyperbolic description of plaintiffs’ claims to be helpful in considering whether intervention by
Applicants is appropriate in the case at bar.
The McCarthy Plaintiffs claimed that the EPA regulations addressing disposal of solid
waste had failed to keep pace with recent developments in the oil and gas industry, such as the
advent of hydraulic fracking. 2016 WL 6833931, *1. The State of North Dakota, home to a
thriving oil and gas industry, was one of the intervenor-applicants in McCarthy. North Dakota
claimed important interests in that litigation by arguing that it would have to bear the additional
costs of implementing any new federal regulations resulting from the lawsuit. The industry
associations were concerned about the “imposition of unnecessary and unduly burdensome” new
regulations.” 2016 WL 6833931, *2. However, the McCarthy Court found that the applicants
were trying to “muddy the waters” by mischaracterizing the expanse and substance of the relief
sought by the plaintiffs. *4. The McCarthy Plaintiffs represented to the court that at most, they
were seeking an order setting a “date certain” by which the EPA must make decisions about
certain waste classification criteria and state plan guidelines. They were not seeking to dictate the
substance or content of any revised federal regulation or trying to prevent the EPA from
declining to promulgate a new rule at all, so the litigation would not result in any new federal
regulations. Id. at *4 (“. . . plaintiffs consider the ‘substance of any revised federal regulations’
to be ‘beyond the scope of this action’”).

The McCarthy Court accepted plaintiffs’

representations about the scope of their complaint, finding that “[t]he substantive content of [the
EPA’s] decisions . . . will not be dictated by this litigation and will therefore remain within the

13

discretion of the agency.” Id, at *5. The McCarthy Court viewed plaintiffs’ request for an order
requiring EPA to “issue necessary revisions” as “a request for an order requiring the EPA to
initiate a rulemaking and to issue whatever regulations that it, in its discretion, deems necessary.
Id. The court found this to be the very same relief provided by consent orders sought by the
applicants in similar cases. Id. The court denied intervention, concluding that the actual focus
of the case was on the “scheduling of rulemaking review” and that the “possibility of adverse
regulation” was insufficient to allow intervention as of right because it was insufficient to confer
Article III standing. Id. at *5-6.
The similarity of McCarthy to the case before the Court is inescapable. Applicants here
have also mischaracterized Plaintiff’s actual claims in order to create the impression that
Applicants’ interests would be impaired if they are not allowed to participate in this case. Just as
the McCarthy Plaintiffs did not seek to dictate the substance of any oil and gas waste regulation
promulgated by the EPA, Plaintiff here does not seek to dictate to BLM how it should determine
what parcels are “eligible” for lease sale. Rather, Plaintiff wants BLM to offer for sale “eligible”
land parcels within the quarterly time period constraints set forth by statute as well as the
Leasing Reform Policy, and Plaintiff seeks a declaration that if BLM cancels or defers these
sales for reasons other than the eligibility of the land parcels, such practice is illegal.
At the hearing, Plaintiff stated that it does not request in this lawsuit that any lease be
issued before any required environmental analysis is conducted, or that the BLM must offer
lands for lease when no eligible lands are available. Plaintiff envisions and expects that BLM
will engage the regulatory mechanisms that are in place in order to allow it to conduct additional
review on any specific land parcel. What Plaintiff does challenge is BLM’s decision to cancel an
entire lease sale when other lands remain eligible. See Doc. 17 at 2, & 4 n.1. Plaintiff offered

14

several examples of such instances when BLM cancelled lease sales for reasons Plaintiff
considered to be based on “administrative whim, convenience, or preference,” such as “workload
priorities,” snowstorms,” and “lack of public interest in attending the lease sale.” Compl., ¶¶ 24,
52 & 57. The Applicants countered that Plaintiff sought to remove BLM’s discretion in the lease
sales, arguing that BLM’s “workload priorities” included instances where the agency withdrew
land parcels for additional environmental review. There is really no basis for Applicants’
argument. First, it begs the question why land parcels that were not being reconsidered for
environmental issues were not offered for lease sale, such as in the Chaco Canyon-based lease
sale.

In that sale, BLM decided to withhold sale on five of those parcels for further

environmental review, but the agency made no statement as to why it could not lease other land
parcels in Texas, Kansas and Oklahoma that were not subject to that particular RMP. There was
no explanation as to why those other parcels were being withdrawn.

Second, Applicants

repeatedly fall back on their contention that Plaintiff seeks to take away BLM’s discretion in
offering land parcels for lease sale by requiring BLM to lease parcels of eligible land on a
quarterly basis, but by the end of the hearing, the Court lost count of the number of times
Plaintiff confirmed that it does not seek to interfere with BLM’s discretion to determine what
land parcels are “eligible” for lease sale and when parcels become “eligible.” Plaintiff’s position
is just this: if “eligible” parcels exist, then BLM must offer these for lease sale on a quarterly
basis. Contrary to the Applicant’s contention, this mandate comes from the Mineral Leasing Act
and identical provisions in the Leasing Reform Policy, not from the Plaintiff.

See 30 U.S.C.

§226(b)(C) (“Lease sales shall be held for each State where eligible lands are available at least
quarterly and more frequently if the Secretary of the Interior determines such sales are
necessary”) (emphasis added).

15

Plaintiff offered other examples where BLM withdrew parcels of land for lease sale for
reasons other than “eligibility,” such as a snowstorm in Wyoming where BLM cancelled the
entire lease sale, or in Utah because of a lack of public participation where the agency did not
attempt to hold the lease sale in a more suitable venue. Plaintiff noted that the Leasing Reform
Policy includes a “rotating” sales schedule in order to allow each field office within a state
sufficient time to implement the new parcel review policy, yet when no land parcels were
available for lease sale in a particular field office, BLM offered no explanation of why “eligible”
land parcels were not offered for lease sale through other field offices. The Court accepts the
accuracy of these factual allegations for purposes of the intervention question. Even if these
examples are not entirely accurate, they are valid examples of conduct by BLM that is contrary
to the Mineral Leasing ACT and the Leasing Reform Policy which incorporates the salient
provisions dealing with lease sales of eligible land parcels.5
The Applicants’ interests are environmental in nature. Thus, if Applicants seek to allow
BLM to withdraw land parcels for reasons having nothing to do with environmental concerns,
then those interests cannot be a basis for intervention as of right. Applicants’ environmental
interests lie in ensuring that the Leasing Reform Policy remains intact, but Plaintiff does not seek
to do away with or modify that policy. No matter how this case is resolved, the outcome will not
affect any legally protectable interest the Applicants might espouse. Applicants argue that a
ruling in Plaintiff’s favor would compromise their conservation interests, but this argument is
5

The Leasing Reform Policy contains the following language:
State offices will continue to hold lease sales four times per year, as required by the Mineral Leasing Act,
section 226(b)(1)(A), and 43 CFR 3120.1-2(a), when eligible lands are determined by the state office to be
available for leasing. . . However, state offices will develop a sales schedule with an emphasis on rotating
lease parcel review responsibilities among field offices throughout the year to balance the workload and to
allow each field office to devote sufficient time and resources to implementing the parcel review policy
established in this IM [“Instructional Memorandum”]. State offices will extend field office review
timeframes, as necessary, to ensure there is adequate time for the field offices to conduct comprehensive
parcel reviews. Ex. 3, III(A) (Doc. 11-3).

16

based on a mischaracterization of Plaintiff’s claims in this lawsuit. Based on both the allegations
in the Complaint and the pleadings, Plaintiff is not seeking to strike down BLM’s Leasing
Reform Policy or force BLM to rush into leasing land parcels without adequate environmental
review or remove the environmental review process from the discretion and control of the BLM.
With a proper and accurate understanding of Plaintiff’s actual claims (as opposed to the
Applicants’ gloss on those claims), Applicants cannot meet their “impairment of interest”
burden, minimal though it is.

However, even assuming the Court found that Applicants did

meet this burden, they still fail on the adequate representation factor required to allow
intervention as of right under Rule 24(a).
D.

Adequate Representation

An applicant is not entitled to intervene if its interest is adequately represented by
existing parties, even if that applicant satisfies the other requirements of Rule 24(a)(2). Kane
Cnty., Utah v. U.S., 597 F.3d 1129, 1134 (10th Cir. 2010). The Applicants here contend that
BLM cannot adequately represent their interests because like all federal agencies, BLM cannot
represent both private and public interests. They note that “in litigating on behalf of the general
public, the government is obligated to consider a broad spectrum of views, many of which may
conflict with the particular interest of the would-be intervenor.” N.M. Off-Highway Vehicle
Alliance., 540 F.App’x at 882. Applicants also contend that representation by BLM would be
inadequate because BLM manages public lands under a “multiple use” mandate that requires
balancing a wide variety of interests, including “recreation, range, timber, minerals, watershed,
wildlife and fish, and natural scenic, scientific and historical values.” Doc. 11at 21 (quoting 43
U.S.C. §1702(c)). Relying on the N.M. Off-Highway case, Applicants argue that a federal
agency cannot adequately represent the interests of environmental groups, and argue that because

17

such groups have a narrower interest, which is “protecting public lands and other natural
resources from harm and ensuring a robust process and thorough environmental review for oil
and gas leasing.” Doc. 11 at 20.
However, both the facts and the parties’ positions in the N.M. Highway case were
significantly different. In N.M.Off-Highway, the environmental groups’ interests clearly were
not wholly aligned with those of the Forest Service, “as evidenced by [the environmental
groups’] comments during the development of the Plan and during their [unsuccessful]
administrative appeal.” 540 Fed.App’x at 881. For example, the environmental groups were
concerned that the route system in the Plan was greater than the Forest Services could afford and
that the agency failed to consider water quality impacts and noise, or route density. In this case,
however, the Applicants’ position (based on their pleadings and their stated position at oral
argument) is to prevent any tampering or modifications to the Leasing Reform Policy, and to
safeguard BLM’s discretion over the environmental review process for federal land parcels as
well as determining which parcels become “eligible” for lease sales. BLM would certainly be
expected to share that position.
Western Energy contends that this “multiple use” consideration is an irrelevant
distinction in this lawsuit, pointing out that there is no real difference in perspective between the
Applicants and BLM. In N.M.Off-Highway, the majority stated that the “multiple use” concept
was important because there was “no guarantee that the Forest Service’s policy would not shift
during litigation.” 540 Fed.Appx. at 881. The possibility of a “shift” during litigation in the
agency’s policy (for example, one that favored plaintiff by opening more roads to motorized
vehicles), meant that the Forest Service could not adequately represent the environmental groups
in the lawsuit even if it could at its inception. Even the dissent could not rule out the possibility

18

that the government’s objective would “shift during the litigation or that other rifts might emerge
during the life of the case to justify intervention as a matter of right under Rule 24(a)(2). 540
Fed.Appx., at 883 (Gorsuch, J., dissenting) (citing San Juan County, Utah v. U.S., 503 F.3d at
1195)).6 However, the dissent would postpone any consideration of intervention until such a
shift occurred. Id.
Concerns about “shifts in litigation” prompting the Tenth Circuit to allow intervention in
N.M. Off-Highway simply do not exist in this case. Unlike the plaintiffs in N.M. Off-Highway,
Western Energy is not pushing to revise or rescind BLM’s Leasing Reform Policy. Moreover,
Western Energy is not seeking to diminish BLM’s ultimate discretion in lease sales or to require
action by BLM in a way that is not already set forth in the very policy which Applicants seek to
preserve. In other words, BLM has no reason to “shift” its policy during this litigation because
this lawsuit does not seek any change in that policy. There was some speculative discussion at
oral argument about change that may occur at the Department of the Interior and the BLM as a
result of the November 2016 election—presumably measures that are more favorable to
companies dealing in the energy business—but the Court finds these apprehensions to be
misplaced in the context of the motion to intervene. A “shift” in BLM’s policy would, as
Plaintiff’s counsel noted at the hearing, make this a different case altogether, and would probably

6

Applicants object to Plaintiff’s reference to San Juan County to support its “adequacy of representation” factor
because, as the majority noted in N.M. Off-Highway, there was a “single litigation objective” in that case, which was
a quiet title action involving ownership of a road. 540 Fed.Appx. at 882 n.7. As a result, the federal defendants were
not required “to balance a spectrum of views in furthering the public interest . . . which might cause them to deviate
from the private concerns of the would-be intervenors.” Id. The majority acknowledged the “narrowness of the
holding” in San Juan County because in that case, there was no reason to believe that the federal defendants’
interests “were not entirely identical to the would-be intervenors’ interests.” Id.
Applicants also take issue with Kane County v. Utah v. U.S., 597 F.3d 1129, 1134 (10th Cir. 2010). The Court
agrees that the holdings in both San Juan County and Kane County are narrow and limited to its facts. However, the
Rule 24 analysis used in that case is still legally accurate, as the Tenth Circuit recognized when citing to San Juan
County in analyzing the “impairment of interests” factor. See N.M. Off-Hwy, 540 Fed.Appx. at 880. The Court
therefore does not rely on San Juan County for anything more than a reference to the relevant legal inquiry under
Rule 24(a).

19

moot the need for this litigation in the first place. Thus, the only “shift” that matters in regards to
this motion is a change in BLM’s position during this lawsuit that would favor Plaintiff and
prejudice the Applicants, but as the Court has already found, Plaintiff is not seeking any revision
or rescission to the Leasing Reform Policy and, as the Court has already stated, Plaintiff will be
held to the representations of its counsel that it is now seeking changes or revisions to the BLM’s
Leasing Reform Policy. For these reasons, the Court finds that the conclusion reached by the
Tenth Circuit in N.M. Off-Highway allowing intervention does not dictate the result on the
intervention issue in this case.7
Accordingly, the Court finds that Applicants are not entitled to intervene because they are
adequately represented by existing parties.
III.

Permissive Intervention
Under Rule 24(b)(1)(B), the Court may grant permissive intervention when a movant

“has a claim or defense that shares with the main action a common question of law or fact.” Fed.
R. Civ. P. 24(b)(1)(B). Whether to grant permissive intervention lies within the discretion of the
district court, Kane Cnty., 597 F.3d at 1135, “but in exercising its discretion, the Court must
consider whether the intervention will unduly delay or prejudice the adjudication of the original
parties’ rights,” Fed. R. Civ. P. 24(b)(3).
Applicants contend that permissive intervention should be granted because they intend to
address the same question of law that is at the heart of this litigation, that is, the legality of

7

In N.M. Off-Highway, the Tenth Circuit stated that it has “repeatedly recognized that it is impossible for a
government agency to protect both the public’s interests and the would-be intervenor’s private interests.” 546
Fed.Appx. at 880 (citing Utah Ass’n of Counties v. Clinton, 255 F.3d 1246, 1256 (10th Cir. 2001). However, if this
language is meant to state that a government agency can never represent the interests of a would-be intervenor, then
intervention requested by environmental groups (or even industry trade associations, as in the McCarthy case) would
automatically be granted as long as the other three Rule 24 factors were met. While this approach would result in a
simpler analysis for a court, it seems to overlook the significance of the facts in each case.

20

BLM’s Leasing Reform Policy, and the agency’s discretion over lease sales. They also contend
that their participation in the lawsuit will not cause any delay.
The Court agrees with Western Energy that the Applicants have not provided sufficient
reason to allow them to intervene permissively. They have not explained why their participation
would be helpful to the Court in this action. Having found that Applicants will be adequately
represented in this lawsuit, their participation would be cumulative and additional briefing and
arguments on the same issues would not be helpful to the Court. Permissive intervention will
also cause undue delay and potentially obfuscate the relevant issues in this lawsuit. The
Applicants’ various mischaracterizations of Plaintiff’s claims indicate the potential to
overcomplicate matters, particularly if Applicants attempted to inject their own agenda into this
case. This would only prejudice the existing parties to this lawsuit trying to resolve the issues
that were raised in the Complaint. Accordingly, the motion to intervene is denied under Rule
24(b)(1)(B).
CONCLUSION
In sum, the Court finds and concludes that while Applicants’ motion to intervene is
timely, and that they have an interest in the subject of this lawsuit, they have not shown an
impairment of interests or that their interests are not adequately represented by existing parties in
this lawsuit. Applicants request intervention, in part, to ensure that environmental impacts from
oil and gas development on public lands are minimized, and that the transparency of the agency’s
decisions and public input on these decisions is increased. However, these interests are already
part of BLM’s Leasing Reform Policy, and so the Applicants would not be taking a position or
making an argument that is not already included in the Leasing Reform Policy or its objectives.
Further, Western Energy is not seeking either revision or rescission of the Leasing Reform

21

Policy, but rather seeks to hold BLM to its obligations under the policy provisions administering
oil and gas lease sales which are also included in the Mineral Leasing Act. Therefore, the
motion to intervene as of right under Rule 24(a) is denied.
The Court further finds and concludes that the Applicants’ request for permissive
intervention is also denied. Applicants have failed to articulate a reason why the Court should
exercise its discretion to allow intervention under Rule 24(b) and the Court finds that permissive
intervention would cause undue delay and potentially prejudice the existing parties to the
lawsuit.
THEREFORE,
IT IS ORDERED that the Applicants’ Motion to Intervene (Doc. 11) is hereby DENIED
for reasons described in this Memorandum Opinion and Order.

________________________________
UNITED STATES DISTRICT JUDGE

22