-GSA San Joaquin River Group Authority v. National Marine Fisheries Service et al, No. 1:2011cv00725 - Document 46 (E.D. Cal. 2011)
Court Description: MEMORANDUM DECISION RE Pacific Coast Federation of Fisherman's Associations 28 Motion to Intervene signed by Judge Oliver W. Wanger on 7/5/2011. (Proposed Lanuage Describing Page Limits or Disagreements described in a Joint Statement Deadline: 7/8/2011; Proposed Order Consistent with Memorandum Decision Deadline: 7/8/2011)(Figueroa, O)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 8 SAN JOAQUIN RIVER GROUP AUTHORITY, Plaintiff, 9 10 11 v. 1:11-cv-00725 OWW GSA MEMORANDUM DECISION RE PACIFIC COAST FEDERATION OF FISHERMEN S ASSOCIATIONS MOTION TO INTERVENE (Doc. 28) NATIONAL MARINE FISHERIES SERVICE, 12 Defendants. 13 I. INTRODUCTION/BACKGROUND 14 15 This suit arises from the United States Pacific Fisheries 16 Management Council s ( PFMC ) April 13, 2011 adoption of 17 commercial troll and recreational fishing management measures for 18 the waters south of Cape Falcon, permitting commercial and 19 recreational fishing for Sacramento River fall-run Chinook Salmon 20 21 ( SRFC ) for the 2011 fishing season ( 2011 management measures ), and the National Marine Fisheries Service s ( NMFS ) 22 23 24 May 4, 2011 approval of the PFMCs recommended 2011 fishing regulations. Doc. 1. 25 The Pacific Coast Federation of Fishermen s Associations 26 ( PCFFA or Applicant ) moves for leave to intervene in this 27 case as of right pursuant to Federal Rule of Civil Procedure 28 1 1 24(a), or in the alternative to permissively intervene under Rule 2 24(b). 3 position on the motion, provided the intervention will not affect 4 Doc. 28, filed June 17, 2011. Federal Defendants take no the page limits available to Federal Defendants for any briefing 5 6 7 8 in this matter. replied. Doc. 36. Doc. 40. Doc. 32. PCFFA The matter came on for hearing June 29, 2011 at 12:00 noon in Courtroom 3 (OWW). 9 10 Plaintiff opposes. II. BACKGROUND A. 11 Claims in this Case. Plaintiff, a coalition of irrigation districts holding water 12 13 rights in the San Joaquin River or one of its tributaries, assert 14 that Federal Defendants adoption of the 2011 management measures 15 violates the Administrative Procedure Act ( APA ), Magnuson- 16 Stevens Fishery Conservation and Management Act ( Magnuson Act ), 17 and National Environmental Policy Act ( NEPA ), by among other 18 things approving high levels of Sacramento River Fall Run 19 20 21 22 23 Chinook ( SRFC or fall-run ) salmon harvest, even though overfishing concerns allegedly continue relative to the abundance of the species. B. 24 25 Id. The Applicant. PCFFA s members are commercial fishermen who rely on catching SRFC for their livelihoods. Grader Decl., Doc. 28-1, ¶¶ 26 27 28 2-3. Many members of PCFFA fish the waters south of Cape Falcon and will be directly affected by Plaintiff s challenge to NMFS 2 1 fishery management measures. Id. ¶ 3. 2 III. INTERVENTION AS OF RIGHT. 3 Applicant moves to intervene as of right or, in the 4 5 6 alternative, to permissively intervene. A. 7 Intervention as of Right. 1. 8 Legal Standard. Intervention is governed by Federal Rule of Civil Procedure 9 10 11 24. To intervene as a matter of right under Rule 24(a)(2), an applicant must claim an interest, the protection of which may, as 12 a practical matter, be impaired or impeded if the lawsuit 13 proceeds without the applicant. 14 U.S. Forest Serv., 66 F.3d 1489, 1493 (9th Cir. 1993). 15 Circuit applies Rule 24(a) liberally, in favor of intervention, 16 17 18 19 Forest Conservation Council v. The Ninth and requires a district court to take all well-pleaded, nonconclusory allegations in the motion as true absent sham, frivolity or other objections. S.W. Ctr. for Biological 20 Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001). 21 part test is used to evaluate a motion for intervention of right: A four- 22 (1) the motion must be timely; 23 (2) the applicant must claim a "significantly protectable" interest relating to the property or transaction which is the subject of the action; 24 25 26 27 28 (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant's interest must be inadequately represented by the parties to the action. 3 1 2 Forest Conservation Council, 66 F.3d at 1493. 2. 3 In assessing timeliness, courts in the Ninth Circuit must 4 5 Timeliness. consider: (1) the current stage of the proceedings; (2) whether 6 the existing parties would be prejudiced; and (3) the reason for 7 any delay in moving to intervene. 8 Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997). 9 Applicant moved to intervene on June 17, 2011, Doc. 28, less than 10 11 League of United Latin Am. 45 days following the filing of the Complaint and before Federal Defendants answer was due. 12 As a general rule, existing parties are not prejudiced when 13 14 the motion was filed before the district court made any 15 substantive rulings. 16 82 F.3d 825, 837 (9th Cir. 1996). 17 have been made in this case, no scheduling conference has been 18 held, and no discovery has commenced. 19 20 21 22 N.W. Forest Resource Council v. Glickman, Here, no substantive rulings Plaintiff complains that under the circumstances, where briefing on cross-motions for summary judgment has been expedited and will begin in late July, in anticipation of a hearing in late 23 September 2011, PCFFA s motion, which was initially noticed for 24 hearing on July 5, 2011, is untimely because a decision on 25 intervention on or after July 5, 2011 would leave Plaintiff with 26 just over two weeks before their motion for summary judgment is 27 28 due. This concern has been obviated by the district court s sua 4 1 sponte rescheduling of the hearing date to June 29, 2011. 2 Plaintiff also expresses concern that PCFFA s participation 3 will add additional issues and additional briefing to an already 4 heavily expedited schedule that was not developed with the 5 6 7 expectation of additional parties intervening. Doc. 32 at 1. This concern is best addressed by conditioning PCFFA s 8 participation on compliance with the existing schedule, good- 9 faith coordination with Federal Defendants to minimize 10 duplicative briefing, and strictly adjusting the page limits for 11 briefing, which will be accomplished by a separate case 12 13 14 15 16 17 18 19 20 21 management order. PCFFA will only be permitted to brief issues unique to their interests and will not be allowed to duplicate any briefing of issues by existing parties. The motion to intervene is timely. 3. Significant Protectable Interests. To demonstrate a significantly protectable interest, a prospective intervenor must establish that (1) the interest asserted is protectable under some law, and (2) there is a 22 relationship between the legally protected interest and the 23 claims at issue. 24 seeks to enjoin Federal Defendants from permitting commercial 25 harvest of SRFC according to the 2011 management measures. 26 27 28 Id. Here, among other remedies, Plaintiff undisputed that PCFFA s has a demonstrable interest in maintaining a viable fishing industry in California for its 5 It is 1 membership and there is a direct relationship between this 2 interest and the claims in this case. 3 4 4. Impairment of Interests. 5 Finally, disposition of this action may, as a practical 6 matter, impair or impede Applicant s abilities to protect their 7 interests. 8 applicant would be substantially affected in a practical sense 9 10 This requirement demands only a showing that the by the determination made in an action. 822. S.W. Ctr., 268 F.3d at It is undisputed that, should an injunction issue against 11 12 the 2011 commercial fishing season, Applicant s interests in 13 continued exploitation of SRFC would be significantly impaired or 14 impeded. 15 16 17 5. Existing Parties Ability to Represent Applicant s Interests. The remaining issue is whether Applicant s interests are 18 adequately protected by other defendants or defendant- 19 intervenors. 20 21 In assessing the adequacy of representation, the Ninth Circuit looks at three factors: 22 (1) whether the existing parties will undoubtedly make all of the applicant s arguments; 23 (2) whether the existing parties are capable of and willing to make the applicant s arguments; and 24 25 (3) whether the applicant offers a necessary element to the proceedings that otherwise would be neglected. 26 Id. at 823. 27 is satisfied if the applicant shows that representation of its 28 [T]he requirement of inadequacy of representation 6 1 interests may be inadequate.... [T]he burden of making this 2 showing is minimal. 3 525, 528 (9th Cir. 1983). 4 Sagebrush Rebellion Inc. v. Watt, 713 F.2d It is well-settled precedent in this circuit that [w]here 5 6 7 an applicant for intervention and an existing party have the same ultimate objective, a presumption of adequacy of representation League of United Latin Am. Citizens, 131 F.3d at 1305; 8 arises. 9 see also Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 10 2003). 11 Federal Defendants share a similar objective of upholding the 12 13 14 15 16 17 This presumption is triggered here because Applicant and 2011 management measures. However, the presumption is rebuttable upon a showing that the applicant and the existing parties do not have sufficiently congruent interests. S.W. Ctr., 268 F.3d at 823. Applicant s interests diverge from existing Defendants. 18 Federal Defendants, as regulators of the commercial fishing 19 industry, have responsibilities to protect multiple interests in 20 connection with the ocean harvest that are not necessarily 21 identical to Applicant s interest, which is achieving a 22 23 24 commercial harvest. See Georgia v. United States Army Corps of Eng rs, 302 F.3d 1242, 1259 (11th Cir. 2002) (finding federal 25 defendant with interest in management of a resource did not have 26 interests identical to an entity with economic interests in the 27 use of that resource). 28 Federal Defendants do not have the same 7 1 level of interest in the 2011 SRFC fishing season, as the 2 regulators are not charged with achieving commercial success in a 3 fishing season, and will not be harmed in the same way Applicant 4 will be harmed if there is no fishing season. 5 6 7 8 Applicant satisfies all of the requirements for intervention as a matter of right. It is not necessary to address Applicant s alternative request for permissive intervention. 9 10 IV. CONCLUSION Applicant s motion to intervene as a matter of right is 11 12 GRANTED, conditioned upon strictly limiting their participation 13 solely to issues about which they can provide non-repetitive, 14 unique information and/or arguments. 15 confer in an effort to agree upon page limits for such briefing, 16 oppositions, and replies. 17 submitted on or before July 8, 2011 at 12:00 noon. 18 19 20 21 22 The parties shall meet and Proposed page limits shall be If the parties cannot agree on such limiting language, any disagreements shall be described in a joint statement to be filed with the court by the same deadline. Applicant shall also submit a proposed form of order 23 consistent with this memorandum decision by July 8, 2011 at noon. 24 The page limitation language will be incorporated in the final 25 order. 26 27 28 SO ORDERED Dated: July 5, 2011 /s/ Oliver W. Wanger United States District Judge 8
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