Center for Biological Diversity v. United States Bureau of Land Management, et al, No. 3:2009cv08011 - Document 58 (D. Ariz. 2010)
Court Description: ORDER GRANTING the Motion to Intervene. (Doc. 39.) The intervention is limited to Claims four and five in the Complaint. However, the NRA may file its own briefs throughout the pendency of the lawsuit, it is not limited to filing joint briefs with the current Defendants. Signed by Judge Paul G Rosenblatt on 1/13/2010.(TCA, )
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Center for Biological Diversity v. United States Bureau of Land Management, et al 1 Doc. 58 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 Center for Biological Diversity, Plaintiff, vs. United States Bureau of Land Management, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. 09-CV-8011-PCT-PGR ORDER 14 15 Currently before the Court is the Motion to Intervene filed by Proposed Defendant- 16 Intervenor National Rifle Association (“NRA”). On December 14, 2009, the Court held oral 17 arguments on the matter. The NRA’s proposed intervention is based largely on its assertion 18 that the relief Plaintiff Center for Biological Diversity (“CBD”) seeks conflicts with federal 19 law. The NRA contends that if the relief sought by the CBD is granted, it will significantly 20 and unnecessarily burden the longstanding tradition of hunting in northwestern Arizona. The 21 NRA maintains that it has both a current interest in, and a decades long record of, opposing 22 what it considers unjustified impingements on hunting nationally and in Arizona. 23 Specifically, the NRA seeks leave to intervene as to the factual and legal allegations 24 implicating hunting (specifically as to the Fourth and Fifth Claims for Relief) made in 25 Plaintiff’s First Amended Complaint. 26 27 Dockets.Justia.com 1 Background 2 Plaintiff challenges the issuance by the U.S. Bureau of Land Management (“BLM”)of 3 three resource management plans ("RMP") for the Grand Canyon-Parashant and Vermillion 4 Cliffs National Monuments ("the Monuments") and the lands managed by the Arizona Stip 5 Field Office ("ASFO"). In its First Amended Complaint, Plaintiff alleges that the BLM and 6 the U.S. Fish and Wildlife Service (FWS) have failed to comply with the National 7 Environmental Policy Act, 42 U.S.C. § 3421 et seq. ("NEPA"), the Federal Land Policy and 8 Management Act, 43 U.S.C. § 1701 et seq. ("FLPMA"), and the Endangered Species Act, 9 16 U.S.C. § 1536(a)(2)("ESA") by refusing to incorporate actions necessary to protect public 10 lands and endangered and threatened species from adverse impacts of excessive off-road 11 vehicle ("ORV") use, livestock grazing, and the use of lead ammunition in their land and 12 wildlife management planning for Monuments and other federal lands administered by the 13 ASFO. Plaintiff alleges that the BLM’s issuance of the RMPs was arbitrary, capricious, or 14 otherwise not in accordance with the law and therefore in violation of the Administrative 15 Procedure Act (“Act”), 5 U.S.C. § 706(2). Therefore, it contends that the BLM’s and the 16 FWS’s issuance of the RMPs and Biological Opinion (“BiOp”) were arbitrary, capricious, 17 and unlawful and a violation of the ESA. 18 The NRA has filed a Motion to Intervene to address the following claims: (4) 19 violation by BLM and FWS of Sections 7(a)(1), 7(a)(2), and 7(b)(4) of the ESA by failing 20 to ensure against jeopardy of the California Condor and (5) violation by FWS of the ESA, 21 16 U.S.C. § 1536(a)(2), by issuing an unlawful biological opinion. 22 Legal Standard and Analysis 23 The NRA contends that it satisfies the requirements for intervention as of right under 24 FRCP Rule 24(a), as well as the requirements for permissive intervention under FRCP Rule 25 24(b). The NRA asserts that the CBD seeks declaratory relief based on the allegedly 26 insufficient consideration by the BLM and the FWS of how lead ammunition (i.e., 27 - 2 - 1 ammunition incorporating a lead projectile) use impacts California condors in the Arizona 2 Strip District ("ASD"). The NRA states that the alleged ESA violations arise from the 3 supposition that California condors in Arizona, part of an "experimental and nonessential 4 population" (see 16 U.S.C. Section 1539(j) and 50 C.F.R. Part 17.84(j)), are scavenging 5 hunter-shot game, and as a result are being poisoned by lead shot or bullets present in the 6 carrion. (See Complaint at p. 21, ¶ 49). The NRA contends that the CBD's contention is 7 based on faulty scientific analyses. The NRA further contends that this exact supposition was 8 raised, addressed, and dismissed over ten years ago when California condors were introduced 9 to Arizona. See generally Fish and Wildlife Service, 61 Fed. Reg. 54,044 (Oct. 16, 1996). 10 Intervention as a Matter of Right Fed.R.Civ.P. 24(a) 11 Intervention as of right is governed by Federal Rule of Civil Procedure 24(a)(2). The 12 Ninth Circuit construes Rule 24(a) liberally in favor of potential intervenors. Sw. Ctr. for 13 Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir.2001). In determining whether 14 intervention is appropriate, the Ninth Circuit applies a four-part test: (1) the motion must be 15 timely; (2) the applicant must claim a “significantly protectable” interest relating to the 16 property or transaction which is the subject of the action; (3) the applicant must be so situated 17 that the disposition of the action may as a practical matter impair or impede its ability to 18 protect that interest; and (4) the applicant's interest must be inadequately represented by the 19 parties to the action. California ex rel. Lockyer, 450 F.3d 436, 440 (quoting Sierra Club v. 20 EPA, 995 F.2d 1478, 1481 (9th Cir. 1993)). 21 1. Timeliness 22 Timeliness is a flexible concept. Its determination is left to the district court's 23 discretion. Dilks v. Aloha Airlines, 642 F.2d 1155, 1156 (9th Cir.1981). The Court weighs 24 three factors when determining whether a motion to intervene is timely, “(1) the stage of the 25 proceedings at which an applicant seeks to intervene; (2) the prejudice to other parties; and 26 27 - 3 - 1 (3) the reason for and length of the delay.” United States v. Alisal Water Corp., 370 F.3d 2 915, 921 (9th Cir. 2004). 3 In the pending case, the CBD argues that intervention is untimely, as the NRA seeks 4 intervention more than six months after the filing of the Amended Complaint. It further 5 argues that the NRA did not participate in the administrative process, which began more than 6 five years ago and included the opportunity to comment on the relationship between lead 7 ammunition and condor mortality-the matter now raised by the NRA. 8 The NRA contends that there was no unreasonable delay because it was not apprised 9 of the lawsuit until after the Amended Complaint was filed (March 2009). Within months 10 thereafter, the NRA states that it evaluated the issues raised, determined that it would file the 11 motion, had it prepared, and filed it. It further maintains that it was in negotiations with the 12 government from the inception of the idea of releasing California condors into the ASD. 13 Therefore, it contends that CBD’s argument that it was not a part of the administrative 14 process is misplaced. 15 As far as delay, the parties have not yet met for a scheduling conference, therefore, 16 the Court finds that the stage of proceedings is early enough that the parties will not be 17 prejudiced by the intervention. Furthermore, although the reason for filing the Motion to 18 Intervene approximately nine months after the case was filed and six months after the 19 Amended Complaint was filed is not crystal clear, the NRA did offer reasons such as hunting 20 season, research on the issue, determination as to whether to get involved in the matter, and 21 preparation of the Motion to Intervene. As timelines is a flexible issue and there has been 22 no apparent prejudice to any parties, the Court finds that the motion is timely. Aloha 23 Airlines, 642 F.2d at 1156. 24 /// 25 /// 26 /// 27 - 4 - 1 2 2. Significantly Protectable Interest Whether an applicant for intervention as of right demonstrates sufficient interest in 3 4 an action is a “practical, threshold inquiry,” and “[n]o specific legal or equitable interest need 5 be established.” Greene v. United States, 996 F.2d 973, 976 (9th Cir.1993), aff'd, 64 F.3d 6 1266 (9th Cir.1995). The movant must, however, demonstrate a “significantly protectable 7 interest” in the lawsuit to merit intervention. Forest Conservation Council, 66 F.3d at 1493 8 9 (internal quotation marks omitted). To demonstrate this interest, a prospective intervenor 10 must establish that (1) “the interest [asserted] is protectable under some law,” and (2) there 11 is a “relationship between the legally protected interest and the claims at issue.” Id. (citing 12 Sierra Club v. EPA, 995 F.2d 1478, 1484 (9th Cir.1993)). 13 14 The NRA asserts that its nationwide advocacy for hunters’ rights establishes its 15 interest in this litigation. It contends that it has established a record of advocating against the 16 restrictions on hunting that have been based on scientifically unsupported claims of alleged 17 18 environmental harm, which it contends is occurring in the present lawsuit. The NRA argues 19 that there is a likelihood that there could be a direct impact on hunting vis-a-vis the 20 possibility of an injunction banning hunting with lead ammunition in the ASD if no party 21 rebuts the CBD’s “unfounded claim that the ‘evidence is overwhelming and there is scientific 22 23 consensus that hunter-shot lead is the primary, if not sole, source of lead poisoning California 24 condors.’” The NRA contends that one of the goals of the lawsuit is to eliminate the use of 25 lead ammunition in the ASD (which it contends is a restriction on hunting) and because the 26 NRA has an interest in preventing such a restriction, the NRA contends it has satisfied this 27 - 5 - 1 2 element. The Court agrees that as to establishing a significantly protectable interest, the NRA has established that it is protecting hunting rights in the ASD and this is related to the matter 3 4 5 6 7 at issue in this lawsuit involving lead ammunition and the California Condor. 3. Disposition May Impair or Impede NRA’s Ability to Protect Its Interest Under the third prong of Rule 24(a), a potential intervenor must demonstrate that the litigation “may as a practical matter impair or impede” its ability to protect its interests. Fed. 8 9 R. Civ. P 24(a)(2); see Lockyer, 450 F.3d at 440. In the pending matter, the CBD attempts 10 to challenge BLM’s adoption of particular Resource Management Plans and FWS’ issuance 11 of a Biological Opinion. The CBD seeks declaratory relief holding the aforementioned 12 agency actions violated ESA by failing to consider the contention that hunters’ use of lead 13 14 ammunition can put California condors in jeopardy. Further, CBD seeks judicial review 15 under 16 U.S.C. Section 1540(g), which authorizes the injunction of an activity, even if such 16 activity is conducted by the Federal Government. If CBD is able to obtain injunctive relief 17 18 that effectively enjoins or limits the use of lead ammunition for hunting in the ASD, or if the 19 CBD obtains a settlement wherein the FWS and the BLM agree to some level of restriction 20 on lead ammunition use, the NRA contends that it will substantially affect the interests of 21 NRA members and other hunters who enjoy hunting in the ASD. The NRA maintains that 22 23 such an injunction or settlement would deprive ASD hunters of the ammunition they consider 24 to be abundant, economical, and ballistically proven. The NRA further argues that to the 25 extent non-lead ammunition is not generally available in the calibers used for hunting small 26 game and turkey, a judicially imposed or settlement-based lead ammunition ban would 27 - 6 - 1 2 preclude the hunting of such animals in the ASD by hunters who cannot afford or locate non-lead ammunition. 3 4 4. Adequacy of Representation of Potential Intervenor by the Current Parties to the 5 Action 6 To determine whether potential intervenor’s interest is adequately represented by the 7 existing parties, courts in the Ninth Circuit consider (1) whether the interest of a present party 8 9 is such that it will undoubtedly make all of a proposed intervenor’s arguments; (2) whether 10 the present party is capable and willing to make such arguments; and (3) whether a proposed 11 intervenor would offer any necessary elements to the proceedings that other parties would 12 neglect. Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003). As previously stated by 13 14 the Ninth Circuit, “[t]he most important factor in determining the adequacy of representation 15 is how the interest [of the proposed intervenor] compares with the interests of existing 16 parties.” Id. (citation omitted). 17 18 The NRA asserts that its interests are not adequately represented by the current 19 Defendants. It contends that the current Defendants have a different position as to the link 20 between lead ammunition use and the mortality rate of California condors. In their Answer, 21 the current Defendants admitted that, “[since the condors have been released in Arizona their 22 23 leading cause of death has been lead poisoning, with at least 12 to 14 condors dying of lead 24 poisoning in Arizona.” Thus, the NRA believes that the current Defendants do not 25 adequately represent its position. The NRA intends to argue that the administrative record 26 and the relevant scientific data do not support the CBD’s assertion regarding the prevalence 27 - 7 - 1 2 of lead-related condor mortalities. The NRA is focused on the hunting aspect and protecting its members’ rights and all hunters’ rights to hunt with lead ammunition in the ASD. This 3 4 is not the objective of the current Defendants. 5 In light of the foregoing, the Court finds that the NRA has established that 6 intervention as of right is warranted. The CBD has requested that should the Court make 7 such a determination, the Court limit the NRA’s participation to the claims raised by the 8 9 Complaint and prohibit the NRA from submitting extra-record evidence or interjecting 10 collateral issues. Furthermore, CBD has requested that the NRA should be required to file 11 joint briefs with the current Defendants within the page limits provided in the Local Rules 12 and the NRA’s intervention should be limited to the remedial phase of the case as the NRA’s 13 14 sole purpose for intervening is to protect an interest that would be impaired only in said 15 phase of the proceeding. The current Defendants also requested that the Court impose 16 conditions upon the NRA’s participation in the lawsuit. They have requested that the NRA 17 18 not be permitted to conduct discovery or introduce extra-record evidence, that it not be 19 permitted to expand the scope of the claims being litigated, and that it is limited to the scope 20 of the fourth and fifth claims in the Complaint. 21 22 23 24 The Court finds that limiting the NRA’s participation to the fourth and fifth claims raised by the Complaint and prohibiting the NRA from submitting extra-record evidence1 or 25 26 27 At oral arguments, the NRA submitted that it had no intention of introducing extrarecord evidence unless and until the other parties did the same. The Court reminds all parties 1 - 8 - 1 2 interjecting collateral issues is appropriate under the circumstances. The matter of whether its participation will be limited to the remedial phase of the lawsuit and whether discovery 3 4 5 6 7 by the NRA will be permitted will be addressed at the scheduling conference previously scheduled for February 8, 2010. IT IS HEREBY ORDERED GRANTING the Motion to Intervene. (Doc. 39.) The intervention is limited to Claims four and five in the Complaint. However, the NRA may file 8 9 10 11 its own briefs throughout the pendency of the lawsuit, it is not limited to filing joint briefs with the current Defendants. DATED this 13th day of January, 2010. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 that this case is based upon the administrative record. - 9 -
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