Sequoia ForestKeeper et al v. United States Forest Service et al, No. 1:2007cv01690 - Document 38 (E.D. Cal. 2008)
Court Description: ORDER GRANTING SFP's Motion to Intervene 15 , signed by Magistrate Judge Dennis L. Beck on 2/1/08: SFP SHALL file Answer within 10 days of the date of service of this order; SFP's Opposition Brief filing ddl set for 3/10/08, with a fifteen (15) page limit; SFP may file a sur-reply, with a ten (10) page limit, by 4/7/08. (Hellings, J)
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Sequoia ForestKeeper et al v. United States Forest Service et al Doc. 38 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 SEQUOIA FORESTKEEPER, et al., 9 10 Plaintiffs, 11 v. 12 13 UNITED STATES FOREST SERVICE, et al., 14 15 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:07cv1690 LJO DLB ORDER GRANTING MOTION TO INTERVENE (Document 16) 16 17 Sierra Forest Products (“SFP”) filed the instant motion to intervene in this action on 18 December 28, 2007. The motion was heard on February 1, 2008, before the Honorable Dennis L. 19 Beck, United States Magistrate Judge. Rachel Fazio and Kalyani Robbins appeared on behalf of 20 Plaintiffs Sequoia Forestkeeper and Earth Island Institute (“Plaintiffs”). Stacey Bosshardt 21 appeared on behalf of Defendants United States Forest Service, Abigail R. Kimball and Tina 22 Terrell (“Defendants”). Scott Horngren appeared on behalf of SFP. 23 BACKGROUND 24 Plaintiffs, both non-profit organizations, filed the instant action for declaratory and 25 injunctive relief on November 20, 2007. Plaintiffs challenge the Forest Service’s January 2007, 26 approval of the Clear Creek Forest Health Improvement and Fuels Reduction Project, a logging 27 project in the Sequoia National Forest. They allege violations of the National Environmental 28 Policy Act (“NEPA”), the National Forest Management Act (“NFMA”) and the Administrative 1 Dockets.Justia.com 1 Procedure Act (“APA”). The action focuses on the impact of the Clear Creek logging project on 2 California spotted owl nesting and foraging habitat. Plaintiffs seek to enjoin the project and 3 thinning sale (removal of merchantable trees over 10-12 inches in diameter) through a permanent 4 injunction, and request a declaration that Defendants violated NEPA, NFMA and APA in 5 developing and approving the Clear Creek Project. 6 Proposed Intervenor SFP filed the instant motion to intervene on December 28, 2007, 7 along with a proposed answer. SFP is a small, family owned sawmill located in Terra Bella, 8 California. It purchased a timber sale contract known as the Clear Creek Thinning sale. 9 According to SFP, the contract calls for a “very light thinning treatment only across about 705 10 acres and is essential to implementing and accomplishing the overall goals under the Clear Creek 11 Project.” Motion, at 2. 12 On January 3, 2008, the Court issued a Preliminary Scheduling Order setting forth 13 deadlines relating to the administrative record. The parties agreed to an expedited schedule in 14 order to avoid a preliminary injunction motion. Cross-motions for summary judgment must be 15 filed by February 15, 2008, with oppositions to be filed by March 17, 2008, and replies by March 16 31, 2008. Sur-replies are due by April 7, 2008, and a hearing is scheduled for April 11, 2008, 17 should the Court deem it necessary. 18 Defendants lodged the administrative record and filed their answer on January 15, 2008. 19 On January 18, 2008, Plaintiffs filed their opposition to SFP’s motion to intervene. SFP 20 21 22 23 24 25 26 27 28 filed its reply on January 25, 2008. Defendants have not filed anything related to SFP’s motion. LEGAL STANDARD Federal Rule of Civil Procedure 24 provides for intervention as of right and permissive intervention. The Trustees seek leave to intervene on both grounds. Rule 24 provides: (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. 2 1 2 3 4 5 (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. 6 Where, as here, no federal statute provides an unconditional right to intervene, Rule 24(a) 7 provides for intervention as a matter of right. The Ninth Circuit has adopted a four part test for 8 intervention “of right” under Rule 24(a): (1) the application for intervention must be timely; (2) 9 the applicant must have a significantly protectable interest relating to the property or transaction 10 that is the subject of the action; (3) the applicant must be so situated that the disposition of the 11 action may, as a practical matter, impair or impede the applicant’s ability to protect that interest; 12 and (4) the applicant’s interest must not be adequately represented by the existing parties in the 13 lawsuit. See Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050, 1061 (9th Cir. 1997). 14 The four part test is interpreted broadly in favor of intervention. Id. 15 If intervention is not otherwise a matter “of right,” the Court may still allow intervention 16 under Federal Rule of Civil Procedure 24(b)(2), which allows a third party to intervene in an 17 action when its “claim or defense and the main action have a question of law or fact in common.” 18 The existence of a “common question” is liberally construed. Stallworth v. Monsanto Co., 558 19 F.2d 257, 265 (5th Cir.1977). If these conditions are met, the question of whether a party will be 20 allowed to intervene is within the sound discretion of the trial court. See Donnely v. Glickman, 21 159 F.3d 405, 409 (9th Cir. 1998); Venegas v. Skaggs, 867 F.2d 527, 530 (9th Cir.1989) (quoting 22 Securities and Exchange Comm'n v. Everest Management Corp., 475 F.2d 1236, 1240 (2d 23 Cir.1972)) (“Rule 24(b) necessarily vests ‘discretion in the district court to determine the fairest 24 and most efficient method of handling a case....’”). “In exercising its discretion the court shall 25 consider whether the intervention will unduly delay or prejudice the adjudication of the rights of 26 the original parties.” Fed.R.Civ.P. 24(b). In addition, a court may consider other factors, 27 28 3 1 including whether the movant’s interests are adequately represented by existing parties and 2 judicial economy concerns. Venegas, 867 F.2d at 530-31. 3 DISCUSSION 4 SFP argues that it should be allowed to intervene as of right, or in the alternative, that it 5 meets the standard for permissive intervention. Although Plaintiffs do not oppose SFP’s 6 intervention in the remedial portion of this action, they do not believe that SFP should be 7 permitted to intervene during the merits phase.1 8 A. 9 Intervention as of Right The parties agree that this motion was timely filed and that the outcome of this action 10 could potentially impact SFP. The parties also appear to agree that SFP has a protectable 11 interest. Although Plaintiffs believe that SFP’s interests would be adequately represented by 12 Defendants so as to prevent intervention as of right, the dispute really comes down to the extent 13 to which SFP should be allowed to intervene. Protectable Interest 14 1. 15 SFP argues that its protectable interest arises from its awarded contract for the Clear 16 17 Creek Thinning Timber Sale, which is being challenged in this action. “[W]hether an applicant for intervention demonstrates sufficient interest in an action is a 18 practical, threshold inquiry. No specific legal or equitable interest need be established.” 19 Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 2001) (citing 20 Greene v. United States, 996 F.2d 973, 976 (9th Cir.1993)). “It is generally enough that the 21 interest [asserted] is protectable under some law, and that there is a relationship between the 22 legally protected interest and the claims at issue.” Id. (citing Sierra Club v. United States EPA, 23 995 F.2d 1478, 1484 (9th Cir.1993). An applicant demonstrates a “significantly protectable 24 interest” when “the injunctive relief sought by the plaintiffs will have direct, immediate, and 25 harmful effects upon a third party's legally protectable interests.” Id. (citing Forest Conservation 26 Council v. United States Forest Serv., 66 F.3d 1489, 1493 (9th Cir.1995)). In Berg, the Ninth 27 1 28 Plaintiffs offered to stipulate to allow SFP to permissively intervene as to the remedy in December 2007, but SFP declined the offer. 4 1 Circuit recognized that contract rights are traditionally protectable interests. Id. at 820 (“Pardee 2 has made a prima facie showing that he has a substantial interest as a third-party beneficiary of 3 the assurances and approval process set out in the IA that could be affected if the IA were 4 invalidated.”) 5 The Court agrees that SFP’s contract rights provide it with a significantly protectable 6 interest in this action. However, Ninth Circuit law is clear that under 24(a), the protectable 7 interest is only in relation to the requested remedy. “As a general rule, ‘the federal government is 8 the only proper defendant in an action to compel compliance with NEPA.’” Kootenai Tribe of 9 Idaho v. Veneman, 313 F.3d 1094, 1108 (9th Cir.2002) (quoting Wetlands Action Network v. 10 United States Army Corps of Eng'rs, 222 F.3d 1105, 1114 (9th Cir.2000)). The rationale behind 11 this rule is that “because NEPA requires action only by the government, only the government can 12 be liable under NEPA. Because a private party can not violate NEPA, it can not be a defendant 13 in a NEPA compliance action.” Id. (quotations and citations omitted). 14 In Wetlands, the Ninth Circuit confirmed that the general rule prohibiting intervention 15 applies in situations where the proposed intervenor has been issued a permit or contract. 222 16 F.3d at 1114; see also Churchill County v. Babbitt, 150 F.3d 1072, 1083. However, where 17 “injunctive relief sought by plaintiffs will have direct, immediate, and harmful effects upon a 18 third party’s legally protectable interests,” that party demonstrates that it has a significant 19 protectable interest in the action. Forest Conservation Council v. United States Forest Serv., 66 20 F.3d 1489, 1494 (9th Cir.1995). In such cases, the appropriate course is to limit the private 21 party's intervention to the remedial phase of the litigation. Wetlands, 222 F.3d at 1114; Churchill 22 County, 150 F.3d at 1083. 23 24 For purposes of this motion, the instant action is nearly indistinguishable from the above cases. SFP will be allowed to intervene under 24(a) as to the remedial portion of this action. Adequate Representation of Interests 25 2. 26 Insofar as Plaintiffs attempt to defeat intervention as of right by arguing that SFP’s 27 interests are adequately protected, their argument fails. 28 5 1 In determining whether a would-be intervenor's interests will be adequately represented 2 by an existing party, courts consider: (1) whether the interest of a present party is such that it 3 will undoubtedly make all the intervenor's arguments; (2) whether the present party is capable 4 and willing to make such arguments; and (3) whether the would-be intervenor would offer any 5 necessary elements to the proceedings that other parties would neglect. Southwest Center for 6 Biological Diversity v. Berg, 268 F.3d 810, 822-823 (9th Cir. 2001). The applicant bears the 7 burden of demonstrating that the existing parties may not adequately represent its interest. Id., 8 823 (citing Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir.1983)). However, the 9 burden of showing inadequacy is “minimal,” and the applicant need only show that 10 representation of its interests by existing parties “may be” inadequate. Id. (citing Trbovich v. 11 United Mine Workers, 404 U.S. 528, 538 n. 10 (1972)). In assessing the adequacy of 12 representation, the focus should be on the “subject of the action,” not just the particular issues 13 before the Court at the time of the motion. Sagebrush, 713 F.2d at 528. For example, where the 14 proposed interveners have “more narrow, parochial interests” than the parties, the burden is 15 overcome. Id. at 445 (citing Forest Conservation Council v. United States Forest Service, 66 16 F.3d 1489, 1499 (9th Cir.1995)). “Inadequate representation is most likely to be found when the 17 applicant asserts a personal interest that does not belong to the general public.” Id. (internal 18 citations omitted). 19 SFP has intervened in numerous actions challenging timber sales in Sequoia over the 20 years. Declaration of Larry Duysen (“Duysen Dec.”), ¶ 12. Based on its past experience, SFP 21 believes that Defendants will fail to emphasize and/or neglect certain legal issues that are of 22 significant importance to SFP. SFP further contends that the Forest Service has failed to sell the 23 amount of timber authorized by the Sequoia Forest Plan, has not pursued the legal defenses to 24 support its timber sales, and has not started the environmental analysis that would allow certain 25 enjoined sales to proceed. Duysen Dec., ¶ 9. 26 The Court agrees that federal Defendants cannot be relied upon to represent SFP’s 27 interests, economic or otherwise. Plaintiffs attempt to minimize this issue by arguing that, given 28 the page limits imposed in this case and others, Defendants cannot be expected to raise all 6 1 arguments. Yet this is exactly the point- Defendants will understandably focus on arguments that 2 best suits their interests. Allowing SFP to intervene will not only ensure that its interests are 3 addressed, but it will also present the Court with more complete briefing. This issue is also 4 important insofar as the Court is allowing SFP to intervene on the merits pursuant to 24(b), 5 discussed below. 6 B. 7 Permissive Intervention Alternatively, SFP requests that it be allowed to intervene permissively. It relies on 8 Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002), where the Ninth Circuit 9 explained, “[u]nlike Rule 24(a), a ‘significant protectable interest’ is not required by Rule 24(b) 10 for intervention; all that is necessary for permissive intervention is that intervenor's ‘claim or 11 defense and the main action have a question of law or fact in common.’” (internal citations 12 omitted). Kootenai Tribe is a case involving a NEPA and APA challenge to the Forest Service’s 13 Roadless Area Conservation Rule. The Ninth Circuit found that the district court’s grant of 14 permissive intervention to environmental groups was not an abuse of discretion, explaining, 15 16 17 though intervenors do not have a direct interest in the government rulemaking, they have asserted an interest in the use and enjoyment of roadless lands, and in the conservation of roadless lands, in the national forest lands subject to the Roadless Rule, and they assert “defenses” of the government rulemaking that squarely respond to the challenges made by plaintiffs in the main action. 18 Kootenai Tribe, 313 F.3d at 1110-1111. Like the non-governmental entities in Kootenai Tribe, 19 SFP argues that it seeks to participate in this case to defend the Clear Creek project at issue and 20 has a concrete interest in the federal timber and public lands at the heart of the project. 21 As explained above, the Court believes that SFP has demonstrated the four factors 22 necessary for intervention as of right under 24(a). However, Ninth Circuit authority requires that 23 the 24(a) intervention be limited to the remedial phase. Under 24(b), though, the Court’s 24 discretion is not constrained. Because SFP’s interests are not adequately protected and because it 25 can expand upon common factual and legal issues before the Court, SFP should be allowed to 26 intervene under 24(b) in the underlying merits of this action. 27 28 7 1 Plaintiffs believe that allowing SFP to intervene on the merits is prejudicial, both in terms 2 of requiring additional work and additional time. However, as discussed at the hearing, SFP is 3 willing to limit its briefing and accelerate its filings so as to allow Plaintiffs sufficient time to 4 accommodate the additional briefing within the existing schedule. SFP is therefore allowed to 5 intervene in the merits of this action pursuant to 24(b) and according to the schedule set forth 6 below. 7 ORDER 8 SFP’s motion to intervene is GRANTED. SFP SHALL file its Answer within ten (10) 9 days of the date of service of this order.2 lodged Answer (Document SFP will be permitted to 10 intervene in the remedial portion of this action pursuant to Rule 24(a) and in the underlying 11 merits pursuant to 24(b). SFP’s opposition brief must be filed by March 10, 2008, and will be 12 limited to fifteen (15) pages. SFP may file a sur-reply, limited to ten (10) pages, by April 7, 13 2008. 14 15 16 IT IS SO ORDERED. Dated: 3b142a February 1, 2008 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 2 28 SFP filed a proposed answer along with this motion. However, because the document was filed, rather than lodged, the Court cannot remove the “[proposed]” designation. 8
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