WildEarth Guardians et al v. Forson et al

Filing 35

OPINION AND ORDER: Intervenor-applicants meet Fed. R. Civ. P. 24(a)(2)s requirements and have established their entitlement to intervene of right in the consolidated actions. The Court GRANTS intervenor-applicants Motion to Intervene, subject to the parties agreed-upon conditions. Signed on 11/27/17 by Magistrate Judge Patricia Sullivan. Associated Cases: 2:17-cv-01004-SU, 2:17-cv-01091-SU, 2:17-cv-01366-SU (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION

WILDEARTH GUARDIANS, OREGON
WILD, THE SIERRA CLUB, and GREAT
OLD BROADS FOR WILDERNESS,

Case No. 2:17-cv-01004-SU
(Lead Case)

Plaintiffs,
v.
STACEY FORSON, in her official capacity
as Ochoco National Forest Supervisor; and
UNITED STATES FOREST SERVICE,
Defendants.
_________________________________________
CENTRAL OREGON LANDWATCH, an
Oregon nonprofit corporation,
Plaintiff,
v.

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Case No. 2:17-cv-01091-SU
(Member Case)

STACEY L. FORSON, in her official
capacity as Ochoco National Forest
Supervisor; JAMES M. PEÑA, in his
official capacity as Regional Forester for
Region 6 of the United States Forest
Service; and UNITED STATES FOREST
SERVICE, a federal agency of the United
States Department of Agriculture,
Defendants.
_________________________________________
OREGON HUNTERS ASSOCIATION, an
Oregon nonprofit corporation,

Case No. 2:17-cv-01366-SU
(Member Case)

Plaintiff,
v.
UNITED STATES FOREST SERVICE, an
agency of the United States Department of
Agriculture; and STACY FORSON, Ochoco
National Forest Supervisor, in her official
capacity,
Defendants.
_________________________________________
and
OCHOCO TRAIL RIDERS, OREGON
MOTORCYCLE RIDERS ASSOCIATION,
PACIFIC NORTHWEST 4 WHEEL DRIVE
ASSOCIATION, DESCUTES COUNTY 4
WHEELERS, and THE BLUERIBBON
COALITION,
Defendant-IntervenorApplicants.
_________________________________________
OPINION
AND ORDER
_________________________________________

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SULLIVAN, United States Magistrate Judge:
In the above-captioned, consolidated actions, plaintiffs challenge the Ochoco Summit
Trail System Project in the Ochoco National Forest. Intervenor-applicants Ochoco Trail Riders,
Oregon Motorcycle Riders Association, Pacific Northwest 4 Wheel Drive Association,
Deschutes County 4 Wheelers, and the BlueRibbon Coalition (“intervenor-applicants”) move to
intervene as defendant-intervenors.

(Docket No. 28).

The existing parties do not oppose

intervention, subject to certain conditions. Id., at 1-2. For the following reasons, the Court
GRANTS intervenor-applicants’ Motion to Intervene subject the parties’ agreed conditions.
BACKGROUND
This action concerns the decision of defendants Stacey Forson and the U.S. Forest
Service to approve new off-highway vehicle trails and a 137-mile motorized trail system in the
Ochoco National Forest in Central Oregon. Am. Compl. ¶ 1 (Docket No. 24).1 Plaintiffs allege
that the Project will harm the Forest’s wildlife, vegetative, water, and other natural resources by
allowing motorized vehicle traffic.

Id. ¶ 15.

Plaintiffs are environmental non-profit and

community organizations. Id. ¶¶ 10-13. They seek declaratory and injunctive relief under the
Administrative Procedure Act, 5 U.S.C. § 701 et seq.; the National Environmental Policy Act, 42
U.S.C. § 4321 et seq.; Executive Order 11644 (as amended by Executive Order 11989); Forest
Service Travel Management regulations, 36 C.F.R. Part 212; the National Forest Management
Act, 16 U.S.C. § 1600 et seq.; and implementing regulations. Am. Compl. ¶ 2.
Intervenor-applicants are non-profit corporations, public benefit corporations, and/or
volunteer organizations of recreational motor vehicle rider enthusiasts, including off-road
motorcycles, Jeeps and four-wheel drive vehicles, and all-terrain vehicles. Worley Decl. ¶¶ 1-3
1

In this Opinion and Order, docket citations are to the lead case, No. 2:17-cv-1004-SU.

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(Docket No. 28-1); Drake Decl. ¶¶ 1-3 (Docket No. 28-2); Ulrich Decl. ¶¶ 1-3 (Docket No. 283); Amador Decl. ¶¶ 1-3 (Docket No. 28-4). Intervenor-applicants seek to intervene to represent
their interests in access to Forest Service lands through the Summit Trail System Project.
Per intervenor-applicants’ certification, the existing parties do not oppose intervention,
subject to these conditions:
(1) Defendant-Intervenor-Applicants will not seek discovery in this proceeding or
introduce materials outside the administrative record on the merits of
Plaintiffs’ claims;
(2) Defendant-Intervenor-Applicants will not assert claims against Plaintiffs or
Federal Defendants in this proceeding;
(3) Defendant-Intervenor-Applicants will confine their arguments to the issues
raised in Plaintiffs’ complaints and will avoid collateral arguments; and
(4) Defendant-Intervenor-Applicants will not repeat arguments raised by Federal
Defendants.
Mot. Intervene, at 2-3 (Docket No. 28). Intervenor-applicants agree to the conditions. Id., at 3.
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
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 existing parties do not adequately represent applicant’s
interests. 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

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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). 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
Intervenor-applicants have made a sufficient showing as to each element of the test for
intervention of right:

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1. Timeliness: Intervenor-applicants’ Motion is timely. This action was commenced June
28, 2017. (Docket No. 1). Intervenor-applicants initially moved to intervene only three months
later, on September 28, 2017. (Docket No. 11). The same day, defendants moved to consolidate
the three actions, which the Court granted on October 2, 2017. (Docket Nos. 10, 19). Because
of this change in procedural posture, the likelihood that plaintiffs would file amended
complaints, and discussions between the parties regarding intervention, intervenor-applicants
withdrew their pending Motion to Intervene on October 9, 2017 (Docket No. 22), and renewed it
in the consolidated action on October 30, 2017 (Docket No. 28). By refiling the Motion,
unopposed and subject to agreed conditions in the consolidated actions, intervenor-applicants
streamlined consideration of the Motion and simplified intervention. The matter is at an early
stage. No prejudice from intervention has been shown. There has been no apparent delay.
2. Interest: Intervenor-applicants have relevant interests in the Summit Trail System
Project.

They have recreational and aesthetic interests in the Ochoco National Forest,

specifically in using the roads and trails of the Project for off-road vehicle riding. Worley Decl.
¶¶ 3-5 (Docket No. 28-1); Drake Decl. ¶¶ 3-5 (Docket No. 28-2); Ulrich Decl. ¶¶ 3-5 (Docket
No. 28-3); Amador Decl. ¶¶ 3-5 (Docket No. 28-4). Intervenor-applicants seek to affirm the
Project decision, and further vehicle access in the Forest, whereas plaintiffs’ action seeks to
enjoin the Project. These interests are legally protected, and an injunction against the Project
would immediately impact them. See Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d
1141, 1147 (9th Cir. 2000) (holding that recreational and aesthetic interests are legally
protectable and sufficient to confer organizational standing in environmental action).
3. Impairment of Interest: Determination of this matter could substantially impact
intervenor-applicants’ interests. If plaintiffs prevail in challenging the Summit Trail System

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Project, vacatur of the agency decision and injunctive relief could include restrictions on vehicle
access. See Am. Compl., at 29 ¶ 5. This could substantially impact the recreational and aesthetic
interests described 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).
4. No Adequate Representation: The existing parties may not adequately represent
intervenor-applicants’ interests. The Forest Service represents the broad public interest, and may
not represent the specific recreational and aesthetic interests of intervenor-applicants.

See

Worley Decl. ¶ 8 (Docket No. 28-1); Drake Decl. ¶ 8 (Docket No. 28-2); Ulrich Decl. ¶ 8
(Docket No. 28-3); Amador Decl. ¶ 9 (Docket No. 28-4); Citizens for Balanced Use v. Mont.
Wilderness Ass’n, 647 F.3d 893, 899 (9th Cir. 2011). Because of these distinct interests, it has
not been shown that the existing parties will undoubtedly make all of intervenor-applicants’
arguments: it is not clear that the parties are capable of and willing to make those arguments, and
the parties might neglect to address intervenor-applicants’ interests.
CONCLUSION
Intervenor-applicants meet Fed. R. Civ. P. 24(a)(2)’s requirements and have established
their entitlement to intervene of right in the consolidated actions.

The Court GRANTS

intervenor-applicants’ Motion to Intervene, subject to the parties’ agreed-upon conditions.
IT IS SO ORDERED.
DATED this 27th day of November, 2017.

/s/ Patricia Sullivan
PATRICIA SULLIVAN
United States Magistrate Judge

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