Dakota Resource Council v. North Dakota Public Service Commission

Filing 21

ORDER by Magistrate Judge Charles S. Miller, Jr. granting the United States Department of the Interior's 16 Motion to Intervene. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Dakota Resource Council,
Plaintiff,
vs.
North Dakota Public Service Commission,
Defendant.

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ORDER GRANTING MOTION TO
INTERVENE

Case No. 1:12-cv-064

Before the court is a Motion to Intervene filed by Secretary of the Interior Ken Salazar
(“Secretary”), in his official capacity, on November 16, 2012. For the reasons that follow, the court
grants the Secretary’s motion to intervene as a matter of right.
I.

BACKGROUND
On May 30, 2012, plaintiff initiated what is styled as a citizens' suit under the Surface Mining

Control and Reclamation Act of 1977 ("SMCRA"), 30 U.S.C. §§ 1201-1328. It claims that the North
Dakota Public Service Commission (“NDPSC”) unlawfully implemented changes to the State of North
Dakota’s regulatory program. It requests: (1) declaration from the court that the NDPSC is violating
SMRCRA and its implementing federal regulations; (2) an order restraining the NDPSC from giving
further effect to unapproved amendments to the State’s regulatory program; and (3) recovery of its
costs and expenses.
On November 16, 2012, the Secretary filed a motion for leave to intervene as a matter of right
or, in the alternative, to intervene permissively. Plaintiff and the NDPSC have yet to file responses
to the Secretary’s Motion to Intervene. However, given that neither of them has filed a response to
the Secretary’s motion within the time prescribed by the local rules, their silence may be deemed an
admission that the Secretary’s motion is well taken. See D.N.D. Civ. L. R. 7.1(B) and (F).

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II.

DISCUSSION
Rule 24 of the Federal Rules of Civil Procedure provides that the court must permit anyone to

intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of the
action, and is so situated that disposing of the action may as a practical matter impair
or impede the movant's ability to protect its interest, unless existing parties adequately
represent that interest.
Fed. R. Civ. P. 24(a). It further provides that the court may permit anyone to intervene who: "(A) is
given a conditional right to intervene by a federal statute; or (B) 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).
SMCRA bestows upon the Secretary an unconditional right to intervene in this action. See 30
U.S.C. § 1270(c)(2) ("In such action under this section [30 U.S.C. § 1270], the Secretary, or the State
regulatory authority, if not a party, may intervene as a matter of right."). The court is therefore
obligated by Rule 24(a)(1) to permit the Secretary’s intervention.
III.

CONCLUSION
The court GRANTS the Secretary’s Motion to Intervene (Docket No. 16). The Secretary shall

have until December 21, 2012, to file an answer to plaintiff's complaint. In addition, although plaintiff
and the NDPSC previously consented to the undersigned’s handing of this matter, the case will remain
assigned to Judge Hovland given the intervention of the Secretary.
IT IS SO ORDERED.
Dated this 12th day of December, 2012.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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