Osage Producers Association v. Jewell et al

Filing 30

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; denying 18 Motion to Intervene (hbo, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
OSAGE PRODUCERS ASSOCIATION,
Plaintiff,
v.
SALLY JEWELL, et al.,
Defendants,
v.
DAVID P. HAYES, TRUSTEE FOR THE
PAUL B. HAYES FAMILY TRUST,
DATED APRIL 30, 2010,
Proposed Defendant-Intervenor.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 15-CV-469-GKF-FHM

OPINION AND ORDER
Before the court is the Motion to Intervene [Doc. #18] of David P. Hayes, Trustee for the
Paul B. Hayes Family Trust, Dated April 30, 2010 (“Hayes”). Hayes asserts a right to intervene
in this case and, in the alternative, requests permission to intervene. See Fed. R. Civ. P. 24(a) &
(b). Both plaintiff and defendants oppose intervention.
This case arises from a dispute over the government’s processing of drilling permit
applications for wells in Osage County, Oklahoma. To drill a new well in Osage County, an oil
and gas operator must obtain a permit from the Superintendent of the Osage Agency within the
Bureau of Indian Affairs. See 25 C.F.R. § 226.34(b). In August 2015, plaintiff Osage Producers
Association (“OPA”) brought this action pursuant to the Administrative Procedure Act (“APA”),
5 U.S.C. § 701 et seq., against several governmental defendants (hereinafter, “the government”),
alleging that the government has unreasonably delayed issuing drilling permits and that, in doing

so, “has tacitly denied each and every permit” currently pending before the Superintendent.
[Dkt. #2, Complaint, p. 3].
In October 2015, Hayes filed the present motion to intervene. Hayes owns property in
Osage County which, he contends, may be affected by the court’s ruling in this case.
I.

Discussion

As previously mentioned, Hayes asserts a right to intervene under Federal Rule Civil
Procedure 24(a)(2) and, in the alternative, request permission to intervene under Rule 24(b). The
court addresses these issues in turn.
A. Intervention of Right
Rule 24(a)(2) entitles an applicant to intervene as of right if “(1) the application is timely,
(2) the applicant claims an interest relating to the property or transaction which is the subject of
the action, (3) the applicant’s interest may be impaired or impeded, and (4) the applicant’s
interest is not adequately represented by existing parties.” Elliott Indus. Ltd. P’ship v. BP Am.
Prod. Co., 407 F.3d 1091, 1103 (10th Cir. 2005). This rule, “though speaking of intervention ‘of
right,’ is not a mechanical rule.” San Juan Cty., Utah v. United States, 503 F.3d 1163, 1199
(10th Cir. 2007) (en banc). Rather, as the Tenth Circuit has explained, “[i]t requires courts to
exercise judgment based on the specific circumstances of the case.” Id.
Here, Hayes claims an interest in this litigation based on the land “he owns in Osage
County and the potential environmental harm that could” occur to his property as a result of this
litigation. [Dkt. #18, p. 7]. In particular, he contends that the government’s failure to timely
approve drilling permits is the result of BIA’s efforts to comply with the National Environmental
Policy Act (“NEPA”), and that a ruling in OPA’s favor could cause the government to shirk its

-2-

duties under the statute.1 This interest, Hayes contends, is not adequately represented by the
government because “the BIA could put up a weak defense to this action” so as to avoid
complying with NEPA. [Id. at 9-10].
In response, the existing parties submit that this case is about the government’s alleged
failure to approve drilling permits and that Hayes has failed to plead facts tying this dispute to
the property in which he claims an interest. In particular, the government contends that this case
only concerns portions of the Osage Mineral Estate that are subject to pending permit
applications and that Hayes has not shown that his property is so affected. Further, the parties
assert this action cannot impair Hayes’s interest in ensuring NEPA compliance on his land
because, regardless of the outcome here, the government must comply with NEPA.
The court agrees with the existing parties. Hayes does not have an interest in the subject
of this litigation. This case concerns the government’s processing of discrete permit
applications, specifically those currently pending before the Superintendent. Hayes does not
allege, nor is there any indication in the record, that his property is subject to a pending permit
application. Thus, Hayes’s claimed interest—ensuring NEPA compliance on this land—is not
“realt[ed] to the property or transaction that is the subject of [this] action.” Fed. R. Civ. P.
24(a)(2).

1

Hayes also claims an interest in this litigation based on his lawsuit against the federal
government in Hayes v. Chaparral et al., Case No. 14-CV-495 (N.D. Okla.) (“Chaparral”). In
particular, he submits that the court’s decision here could, as a precedential matter, have an
adverse impact on his lawsuit in Chaparral.
This contention is no longer tenable. The court recently resolved Chaparral in Hayes’s
favor, ruling that the government’s approval of an oil and gas lease and two drilling permits on
Hayes’s property failed to comply with NEPA. Thus, the court’s decision in the present case
will not affect Chaparral.
-3-

Moreover, even if Hayes’s land were implicated in this case, his interest in ensuring
NEPA compliance could not be impaired or impeded by the present litigation. OPA’s complaint
merely seeks to compel agency action that, it contends, has been unlawfully withheld or
unreasonably delayed, namely, the processing of pending drilling permits. Because this claim
arises under the APA, the court may, at most, “compel the agency to act, but has no power to
specify what the action must be.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004).
Any agency action ordered in this case, however, would, as a matter of law, have to comply with
NEPA. Hayes’s suggestion that such an order could cause the government to shirk its duties
under the statute is speculative and, thus, insufficient to warrant intervention. Cf. San Juan Cty.,
503 F.3d at 1203 (noting that an “intervenor cannot rely on an interest that is wholly remote and
speculative” (internal quotation marks omitted)). The government’s obligations under NEPA are
not a legal issue in this case.2 Hayes’s intervention would only serve to inject legal issues
collateral to the dispute between the existing parties. See New York News, Inc. v. Kheel, 972
F.2d 482, 486 (2d Cir. 1992) (noting that “[i]ntervention under Rule 24(a)(2)…cannot be used as
a means to inject collateral issues into an existing action”).
Having determined that Hayes’s motion fails on the interest and impairment elements, the
court need not consider whether his application was timely or whether his claimed interest is
adequately represented by the existing parties. See S.E.C. v. Kings Real Estate Inv. Trust, 222
F.R.D. 660, 667 (D. Kan. 2004) (“All elements must be satisfied before an applicant can
intervene as of right under Rule 24(a)(2).”). For the foregoing reasons, Hayes’s motion to
intervene as a matter of right is denied.

2

The government’s obligations under NEPA will, at most, be a factual topic in this case, not an
issue of law.
-4-

B. Permissive Intervention
Rule 24(b)(1)(B) provides that a “court may permit anyone to intervene who … has a
claim or defense that shares with the main action a common question of law or fact.” “Once the
threshold requirement of a common question is met, the decision to allow or deny permissive
intervention lies within the discretion of the district court.” Am. Ass’n of People With
Disabilities v. Herrera, 257 F.R.D. 236, 259 (D.N.M. 2008). “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).
Here, Hayes asserts that he “has claims and defenses relating to NEPA that he wishes to
present in the instant action” and that such “NEPA-related issues are central to the disposition of
this” case. [Dkt. #18, p.11-12]. The court disagrees. As just discussed, the government’s
obligations under NEPA are not a legal issue in this case. Based on the claim asserted, the court
could, at most, order the government “to take action [on pending permit applications], without
directing how it [must] act.” S. Utah Wilderness All., 542 U.S. at 64 (emphasis in original). Any
such action would, as a matter of law, have to comply with NEPA. The court cannot order relief
requiring (or permitting) the government to ignore its duties under the statute. Hayes thus has
not demonstrated the existence of a question of law or fact common both to the claim or defense
he seeks to raise and those involved in the present case.
In any event, even if Hayes had made this threshold showing, the court would deny his
motion. Hayes’s intervention would inject additional legal issues into this case that, in the
court’s view, would likely complicate the primary issues between the existing parties and
severely delay the litigation. See Edmondson v. State of Neb. ex rel. Meyer, 383 F.2d 123, 127

-5-

(8th Cir. 1967) (noting that such circumstances counsel against intervention). For these reasons,
Hayes’s request to intervene under Rule 24(b) is denied.
WHEREFORE, Hayes’s Motion to Intervene [Dkt. #18] is denied.
ENTERED this 7th day of January, 2016.

-6-