Hells Canyon Preservation Council et al v. Stein et al

Filing 12

OPINION AND ORDER: The Court GRANTS the County's Motion to Intervene 9 . Per the County's Local Rule 7-1(a) certification, the County shall abide by the schedule adopted by the parties and the Court, and shall avoid duplicating defendants' arguments. (See 7 page opinion for more information) Signed on 8/24/17 by Magistrate Judge Patricia Sullivan. (dsg)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PENDLETON DIVISION HELLS CANYON PRESERVATION COUNCIL, an Oregon nonprofit corporation, and OREGON WILD, an Oregon nonprofit corporation, Case No. 2:17-cv-00843-SU Plaintiffs, OPINION AND ORDER v. DISTRICT RANGER KRIS STEIN, in her official capacity as District Ranger of the Eagle Cap Ranger District, Wallowa-Whitman National Forest, and UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture, Defendants, and WALLOWA COUNTY, a political subdivision of the State of Oregon, Page 1 – OPINION AND ORDER Proposed DefendantIntervenor. _________________________________________ SULLIVAN, United States Magistrate Judge: Plaintiffs Hells Canyon Preservation Council and Oregon Wild bring this action to challenge the approval of the Lostine Public Safety Project (the “Lostine Project” or “Project”) by defendants U.S. Forest Service and District Ranger Kris Stein. Compl. (Docket No. 1). Wallowa County (the “County”) moves to intervene. (Docket No. 9). Plaintiffs, subject to certain conditions, do not oppose intervention, and defendants take no position. Id., at 1. For the following reasons, the Court GRANTS the County’s Motion to Intervene. BACKGROUND The Lostine Project is a forest management project in the Wallowa-Whitman National Forest, along the Lostine River corridor. Compl. ¶¶ 3-10; Decision Memo, at 1.1 The Project “involve[s] a variety of thinning, mitigation of hazard trees, removal of hazardous fuels, and creations of small openings.” Id., at 2. Defendant Stein signed the Decision Memo authorizing the Project on April 5, 2017. Id., at 13. The Project area lies within Wallowa County.2 The Healthy Forests Restoration Act (“HFRA”), 16 U.S.C. § 6501 et seq., authorizes counties, in collaboration with federal and state governments, to create Community Wildfire Protection Plans (“CWPPs”) for protection of at-risk communities within the wildland-urban interface. 16 U.S.C. § 6512. In 2006, the County created the Wallowa County CWPP to reduce 1 “Lostine Public Safety Project Decision Memo” (“Decision Memo”), U.S. Forest Service, Eagle Cap Ranger District, Wallowa-Whitman National Forest (Apr. 5, 2017), http://a123.g.akamai.net/7/123/11558/abc123/forestservic.download.akamai.com/11558/www/ne pa/103397_FSPLT3_3986348.pdf. 2 “Lostine Corridor Public Safety Project,” U.S. Department of Agriculture, U.S. Forest Service, Forest Service NEPA Projects, http://data.ecosystemmanagement.org/nepaweb/nepa_project_exp.php?project=48592&exp=location. Page 2 – OPINION AND ORDER wildfire impact on wildland-urban interface areas within the County, and listed the Lostine River corridor as a high-priority area. Wallowa County CWPP, at 1-2.3 Under HFRA § 602, 16 U.S.C. § 6591a, governors can request that the Secretary of Agriculture designate landscape areas for priority hazardous wildfire fuel reduction. Compl. ¶ 44. HFRA § 603, 16 U.S.C. § 6591b, allows Collaborative Restoration Projects in those designated areas to be exempted, by Categorical Exclusion, from review under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. Former Governor John Kitzhaber requested § 602 designation for the Lostine Project in 2014, and the designation issued that year. Compl. ¶ 47.4 The Lostine Project is thus exempt from NEPA review. In this action, plaintiffs challenge the Decision Memo under NEPA, HFRA, and the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq. The County seeks to intervene to protect the asserted property, commercial, recreational, and other interests of the County and its resident landowners in and around the Project area. County Mot. Intervene, at 12 (Docket No. 9). According to the County’s Local Rule 7-1(a) certification, defendants take no position on intervention, and plaintiffs “do not oppose [intervention] provided that Wallowa County agrees to the schedule adopted by the parties and approved by the Court and avoids duplicating federal defendants’ arguments.” Id., at 1. LEGAL STANDARD Fed. R. Civ. P. 24(a)(2) allows intervention of right by “anyone” who, “[o]n timely motion,” “claims an interest relating to the property or transaction that is the subject of the 3 “Wallowa County Community Wildfire Protection Plan” (“Wallowa County CWPP”), Wallowa County (Mar. 24, 2006), http://www.oregon.gov/ODF/Documents/Fire/CWPP/WallowaCounty.pdf. 4 Letter from Thomas L. Tidwell, Chief, U.S. Forest Service, to Gov. John A. Kitzhaber (May 20, 2014), https://www.fs.fed.us/farmbill/documents/DesignationLetters/Oregon.pdf. Page 3 – OPINION AND ORDER 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.” This creates a four-part test for intervention of right: (1) the applicant’s motion is timely; (2) the applicant has asserted an interest relating to the subject property or transaction; (3) the applicant’s ability to protect that interest would, absent intervention, be impaired by disposition of the matter; and (4) the applicant’s interest is not adequately represented by the existing parties. County of Orange v. Air Cal., 799 F.2d 535, 537 (9th Cir. 1986). As to factor one, timeliness, “three factors are weighed: (1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay.” Id. As to factor two, an interest in the property or transaction, this “is a practical, threshold inquiry.” Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 2001). “No specific legal or equitable interest need be established. It is generally enough that the interest asserted is protectable under some law, and that there is a relationship between the legally protected interest and the claims at issue.” Id. (alteration, quotation, and citations omitted). “An applicant demonstrates a ‘significantly protectable interest’ when the injunctive relief sought by the plaintiffs will have direct, immediate, and harmful effects upon a third party’s legally protectable interests.” Id. (quotation omitted). As to factor three, impairment of interest, “if an absentee would be substantially affected in a practical sense by the determination made in an action, he should, as a general rule, be entitled to intervene.” Id. at 822 (alteration omitted) (quoting Fed. R. Civ. P. 24 Advisory Comm. Notes). Page 4 – OPINION AND ORDER As to factor four, no adequate representation of interest, the “applicant-intervenor’s burden . . . is minimal: it is sufficient to show that representation may be inadequate.” Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1498 (9th Cir. 1995) (emphasis in original), abrogated on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011). A non-party is adequately represented by existing parties if: (1) the interests of the existing parties are such that they would undoubtedly make all of the non-party’s arguments; (2) the existing parties are capable of and willing to make such arguments; and (3) the non-party would offer no necessary element to the proceeding that existing parties would neglect. Sw. Ctr. for Biological Diversity v. Babbitt, 150 F.3d 1152, 1153-54 (9th Cir. 1998). ANALYSIS The County has made a sufficient showing as to each element of Fed. R. Civ. P. 24(a)(2)’s test for intervention of right: 1. Timeliness: The County’s Motion is timely. This action was commenced May 31, 2017, and the County moved to intervene two months later, on July 27, 2017, before defendants had answered. The matter is at a very early stage. No prejudice from intervention has been shown. There has been no apparent delay in the County’s application. The County has established the first element of the four-part test. 2. Interest: The County has established that it has numerous interests relating to the Lostine Project, both the property (the Project area) and the transaction (the Decision Memo). The Lostine Project area is within the County. County residents have private inholdings in the WWNF adjacent to the Lostine River corridor. See County Mot. Intervene, at 1 (Docket No. 9); Nash Decl. ¶ 6 (Docket No. 10). The County and its residents have an interest in fire reduction near their land. See id. ¶¶ 3-6, 8-9. The County has commercial interests in the forest land. See Page 5 – OPINION AND ORDER id. ¶¶ 10-12. These interests, especially the property interests, are legally protected, and an injunction against the Lostine Project would immediately impact them. See Forest Conservation Council, 66 F.3d at 1497 (recognizing as sufficient to justify intervention of right “non-economic interests, such as the environmental health of, and wildfire threats to, state lands adjacent to national forests, which [state and county] appellants have a legal duty to maintain”). The County has established element two of the test. 3. Impairment of Interest: Determination of this matter could substantially impact the County. If plaintiffs prevail in challenging the Lostine Project, the delay or termination of the forest management plan could cause increased fire risk and decreased forest health, see Nash Decl. ¶¶ 10-12 (Docket No. 10), substantially impacting the property, safety, commercial, residential, and recreational interests listed above, see Forest Conservation Council, 66 F.3d at 1498 (holding that intervenors’ ability to protect their interests would be impaired because, if they were “not made a party to th[e] action, they [would] have no legal means to challenge” the requested injunction). The County has established element three of the test. 4. No Adequate Representation: The existing parties may not adequately represent the County’s interests. “The Forest Service is required to represent a broader view than the more narrow, parochial interests of” a state or county. Forest Conservation Council, 66 F.3d at 1499. For example, the County has economic and tourism interests in the Lostine Project, and interests in the economic stability of the region and the forest products industry. See County’s Mot. Intervene, at 10 (Docket No. 9); Nash Decl. ¶ 10 (Docket No. 10). The Forest Service may not represent these interests. See id. ¶ 13. Because of these distinct interests, it has not been shown that the existing parties will undoubtedly make all of the County’s arguments; it is not clear that the existing parties are capable of and willing to make those arguments; and the existing parties Page 6 – OPINION AND ORDER might neglect to address the County’s interests. The County has established the final element of the test. * * * The County has satisfied each of Fed. R. Civ. P. 24(a)(2)’s requirements. The County has established its entitlement to intervene of right.5 CONCLUSION For these reasons, the Court GRANTS the County’s Motion to Intervene. (Docket No. 9). Per the County’s Local Rule 7-1(a) certification, the County shall abide by the schedule adopted by the parties and the Court, and shall avoid duplicating defendants’ arguments. IT IS SO ORDERED. DATED this 24th day of August, 2017. /s/ Patricia Sullivan PATRICIA SULLIVAN United States Magistrate Judge 5 The County also moves for permissive intervention under Fed. R. Civ. P. 24(b). Because the Court grants the County’s Motion as to intervention of right under Fed. R. Civ. P. 25(a)(2), the Court does not reach the question of permissive intervention. Page 7 – OPINION AND ORDER

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?