1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Apache Stronghold, ) No. CV-21-00050-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) United States of America, et al., ) 12 ) 13 Defendants. ) ) 14 )
15 Before the Court is Resolution Copper Mining LLC’s Motion for Limited Lift of 16 Stay and to Intervene (Doc. 109). The Motion asks the Court to lift the stay for the 17 limited purpose of allowing intervention as of right or, alternatively, permissive 18 intervention. For the following reasons, the Motion will be granted. 19 I. BACKGROUND 20 On January 12, 2021, Plaintiff Apache Stronghold initiated this action seeking to 21 prevent a congressionally authorized land exchange between the federal government and 22 Resolution Copper Mining LLC (“Resolution”). (Doc. 1). The 2,422-acre parcel of 23 Arizona land that the United States is to convey to Resolution is located with the Tonto 24 National Forest and includes a sacred Apache ceremonial ground called Chi’chil 25 Bildagoteel, known in English as “Oak Flat.” (Doc. 1 ¶¶ 2, 30). Plaintiff alleges that the 26 land transfer would violate it and its members First and Fifth Amendment rights, would 27 violate the Religious Freedom Restoration Act, and would breach the federal 28 government’s trust and fiduciary duties to the Western Apache people. (Doc. 1). 1 On January 14, 2021, Plaintiff filed a Motion for Temporary Restraining Order 2 and Preliminary Injunction seeking to prevent the United States Department of 3 Agriculture from publishing a Final Environmental Impact Statement (“FEIS”), which 4 would trigger a 60-day period to complete the land exchange. (Doc. 7). On February 12, 5 2021, following full briefing and a hearing, the Court denied Plaintiff’s Motion. (Doc. 6 57). Plaintiff promptly filed an interlocutory appeal. (Doc. 59). On May 12, 2021, the 7 Court stayed this action pending disposition of the appeal, and the case has remained 8 stayed since. (Doc. 81). The Ninth Circuit recently reheard the case en banc. (Doc. 102). 9 On March 1, 2021, the U.S. Forest Service rescinded the FEIS to engage in further 10 consultation and analysis. (Doc. 80 at 2–3 & n.1). The land exchange will not occur until 11 a new FEIS is published, which the federal government has represented is expected by 12 “early summer.” (Doc. 106 at 2). This Court has ordered the Forest Service to provide 60 13 days’ notice to Plaintiff’s counsel, the public, and the Court before the republication of a 14 FEIS for the land exchange at issue. (Doc. 81). No such notice has yet been provided. 15 II. INTERVENTION AS OF RIGHT 16 To intervene as of right, a non-party must establish four elements: 17 (1) the application must be timely; (2) the applicant must have a significantly protectable interest relating to the 18 transaction that is the subject of the litigation; (3) the 19 applicant must be so situated that the disposition of the action may, as a practical matter, impair or impeded the applicant’s 20 ability to protect its interest; and (4) the applicant’s interest 21 must be inadequately represented by the parties before the court. 22 League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997) 23 (internal quotation marks omitted). The proposed intervenor bears the burden of 24 establishing each element, but the Ninth Circuit has “repeatedly instructed that the 25 requirements for intervention are to be broadly interpreted in favor of intervention.” 26 Smith v. L.A. Unified Sch. Dist., 830 F.3d 843, 853 (9th Cir. 2016). Here, Plaintiff argues 27 that Resolution has not established the first or fourth elements. 28 1 a. Timeliness 2 The timeliness of a motion to intervene “hinges on three primary factors: (1) the 3 stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other 4 parties; and (3) the reason for and length of the delay.” Kalbers v. U.S. Dep’t of Just., 22 5 F.4th 816, 822 (9th Cir. 2021) (internal quotation marks omitted)). The three factors are 6 assessed “by reference to the crucial date when proposed intervenors should have been 7 aware that their interests would not be adequately protected by the existing parties.” Id. 8 (internal quotation marks omitted). 9 First, “[t]he ‘stage of proceeding’ factor uses a nuanced, pragmatic approach to 10 examine whether the district court has substantively—and substantially—engaged the 11 issues in the case.” Id. at 826 (internal quotation marks omitted). The Court must 12 consider substance over form, and “[n]either the formal stage of the litigation (e.g., the 13 pretrial stage), nor the length of time that has passed since a suit was filed is dispositive.” 14 Id. (internal citations and quotation marks omitted). Here, although the case was filed 15 more than 28 months ago, it is still in the very early stages; Defendants have not filed 16 answers and no discovery has been conducted. More importantly, although this Court did 17 engage the issues of the case when it ruled on Plaintiff’s Motion for Temporary 18 Restraining Order and Preliminary Injunction, it has not made any final substantive 19 rulings. A ruling on such a motion is, as the name suggests, preliminary in relation to the 20 case as a whole. And litigation of that Motion is the only substantive litigation that has 21 occurred before this Court. This factor therefore favors intervention. 22 Second, analysis of the prejudice factor is guided by one “key principle”: “The 23 only prejudice that is relevant is that which flows from a prospective intervenor’s failure 24 to intervene after he knew, or reasonably should have known, that his interests were not 25 being adequately represented.” Id. at 825 (internal quotation marks omitted). In addition, 26 “the fact that including another party in the case might make resolution more difficult 27 does not constitute prejudice.” Id. (internal quotation marks omitted). Plaintiff argues that 28 it would be prejudiced by Resolution’s intervention shortly before the likely republishing 1 of the FEIS because if the FEIS is republished without the Ninth Circuit first halting the 2 land transfer, Plaintiff “would need to seek emergency relief to prevent irreparable harm 3 to its rights.” (Doc. 112 at 5). Plaintiff apparently means to suggest that Resolution’s 4 intervention could so delay proceedings related to a renewed motion for preliminary 5 injunctive relief that the Court could not provide a timely ruling. The Court sees no such 6 risk, as the Court is certainly capable of resolving emergency relief proceedings in an 7 efficient manner even when there are multiple parties involved. Moreover, even assuming 8 that Resolution should have known of a need to intervene sooner, Plaintiff does not 9 explain how the purported prejudice is a result of that delay. Plaintiff cites to Garza v. 10 County of Los Angeles, but there, the proposed intervenor did not move to intervene until 11 the case was “progress[ing] . . . to a close”—unlike here where the case is currently 12 stayed at a preliminary stage and the FEIS that may prompt Plaintiff to seek further relief 13 has yet to even be republished. 918 F.3d 763, 777 (9th Cir. 1990). There is no prejudice 14 from any delay in Resolution’s Motion to Intervene. 15 Finally, the Court considers the length of and reason for delay. “Delay is measured 16 from the date the proposed intervenor should have been aware that its interests would no 17 longer be protected adequately by the parties, not the date it learned of the litigation.” 18 United States v. Washington, 86 F.3d 1499, 1503 (9th Cir. 1996).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Apache Stronghold, ) No. CV-21-00050-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) United States of America, et al., ) 12 ) 13 Defendants. ) ) 14 )
15 Before the Court is Resolution Copper Mining LLC’s Motion for Limited Lift of 16 Stay and to Intervene (Doc. 109). The Motion asks the Court to lift the stay for the 17 limited purpose of allowing intervention as of right or, alternatively, permissive 18 intervention. For the following reasons, the Motion will be granted. 19 I. BACKGROUND 20 On January 12, 2021, Plaintiff Apache Stronghold initiated this action seeking to 21 prevent a congressionally authorized land exchange between the federal government and 22 Resolution Copper Mining LLC (“Resolution”). (Doc. 1). The 2,422-acre parcel of 23 Arizona land that the United States is to convey to Resolution is located with the Tonto 24 National Forest and includes a sacred Apache ceremonial ground called Chi’chil 25 Bildagoteel, known in English as “Oak Flat.” (Doc. 1 ¶¶ 2, 30). Plaintiff alleges that the 26 land transfer would violate it and its members First and Fifth Amendment rights, would 27 violate the Religious Freedom Restoration Act, and would breach the federal 28 government’s trust and fiduciary duties to the Western Apache people. (Doc. 1). 1 On January 14, 2021, Plaintiff filed a Motion for Temporary Restraining Order 2 and Preliminary Injunction seeking to prevent the United States Department of 3 Agriculture from publishing a Final Environmental Impact Statement (“FEIS”), which 4 would trigger a 60-day period to complete the land exchange. (Doc. 7). On February 12, 5 2021, following full briefing and a hearing, the Court denied Plaintiff’s Motion. (Doc. 6 57). Plaintiff promptly filed an interlocutory appeal. (Doc. 59). On May 12, 2021, the 7 Court stayed this action pending disposition of the appeal, and the case has remained 8 stayed since. (Doc. 81). The Ninth Circuit recently reheard the case en banc. (Doc. 102). 9 On March 1, 2021, the U.S. Forest Service rescinded the FEIS to engage in further 10 consultation and analysis. (Doc. 80 at 2–3 & n.1). The land exchange will not occur until 11 a new FEIS is published, which the federal government has represented is expected by 12 “early summer.” (Doc. 106 at 2). This Court has ordered the Forest Service to provide 60 13 days’ notice to Plaintiff’s counsel, the public, and the Court before the republication of a 14 FEIS for the land exchange at issue. (Doc. 81). No such notice has yet been provided. 15 II. INTERVENTION AS OF RIGHT 16 To intervene as of right, a non-party must establish four elements: 17 (1) the application must be timely; (2) the applicant must have a significantly protectable interest relating to the 18 transaction that is the subject of the litigation; (3) the 19 applicant must be so situated that the disposition of the action may, as a practical matter, impair or impeded the applicant’s 20 ability to protect its interest; and (4) the applicant’s interest 21 must be inadequately represented by the parties before the court. 22 League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997) 23 (internal quotation marks omitted). The proposed intervenor bears the burden of 24 establishing each element, but the Ninth Circuit has “repeatedly instructed that the 25 requirements for intervention are to be broadly interpreted in favor of intervention.” 26 Smith v. L.A. Unified Sch. Dist., 830 F.3d 843, 853 (9th Cir. 2016). Here, Plaintiff argues 27 that Resolution has not established the first or fourth elements. 28 1 a. Timeliness 2 The timeliness of a motion to intervene “hinges on three primary factors: (1) the 3 stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other 4 parties; and (3) the reason for and length of the delay.” Kalbers v. U.S. Dep’t of Just., 22 5 F.4th 816, 822 (9th Cir. 2021) (internal quotation marks omitted)). The three factors are 6 assessed “by reference to the crucial date when proposed intervenors should have been 7 aware that their interests would not be adequately protected by the existing parties.” Id. 8 (internal quotation marks omitted). 9 First, “[t]he ‘stage of proceeding’ factor uses a nuanced, pragmatic approach to 10 examine whether the district court has substantively—and substantially—engaged the 11 issues in the case.” Id. at 826 (internal quotation marks omitted). The Court must 12 consider substance over form, and “[n]either the formal stage of the litigation (e.g., the 13 pretrial stage), nor the length of time that has passed since a suit was filed is dispositive.” 14 Id. (internal citations and quotation marks omitted). Here, although the case was filed 15 more than 28 months ago, it is still in the very early stages; Defendants have not filed 16 answers and no discovery has been conducted. More importantly, although this Court did 17 engage the issues of the case when it ruled on Plaintiff’s Motion for Temporary 18 Restraining Order and Preliminary Injunction, it has not made any final substantive 19 rulings. A ruling on such a motion is, as the name suggests, preliminary in relation to the 20 case as a whole. And litigation of that Motion is the only substantive litigation that has 21 occurred before this Court. This factor therefore favors intervention. 22 Second, analysis of the prejudice factor is guided by one “key principle”: “The 23 only prejudice that is relevant is that which flows from a prospective intervenor’s failure 24 to intervene after he knew, or reasonably should have known, that his interests were not 25 being adequately represented.” Id. at 825 (internal quotation marks omitted). In addition, 26 “the fact that including another party in the case might make resolution more difficult 27 does not constitute prejudice.” Id. (internal quotation marks omitted). Plaintiff argues that 28 it would be prejudiced by Resolution’s intervention shortly before the likely republishing 1 of the FEIS because if the FEIS is republished without the Ninth Circuit first halting the 2 land transfer, Plaintiff “would need to seek emergency relief to prevent irreparable harm 3 to its rights.” (Doc. 112 at 5). Plaintiff apparently means to suggest that Resolution’s 4 intervention could so delay proceedings related to a renewed motion for preliminary 5 injunctive relief that the Court could not provide a timely ruling. The Court sees no such 6 risk, as the Court is certainly capable of resolving emergency relief proceedings in an 7 efficient manner even when there are multiple parties involved. Moreover, even assuming 8 that Resolution should have known of a need to intervene sooner, Plaintiff does not 9 explain how the purported prejudice is a result of that delay. Plaintiff cites to Garza v. 10 County of Los Angeles, but there, the proposed intervenor did not move to intervene until 11 the case was “progress[ing] . . . to a close”—unlike here where the case is currently 12 stayed at a preliminary stage and the FEIS that may prompt Plaintiff to seek further relief 13 has yet to even be republished. 918 F.3d 763, 777 (9th Cir. 1990). There is no prejudice 14 from any delay in Resolution’s Motion to Intervene. 15 Finally, the Court considers the length of and reason for delay. “Delay is measured 16 from the date the proposed intervenor should have been aware that its interests would no 17 longer be protected adequately by the parties, not the date it learned of the litigation.” 18 United States v. Washington, 86 F.3d 1499, 1503 (9th Cir. 1996). Neither Plaintiff nor 19 Resolution makes a clear argument as to when Resolution should have known its interests 20 were not adequately protected, but even assuming that the delay dates back to the filing 21 of the action, the delay was lengthy at 27 months, but was largely not without reason. For 22 24 of those months, the case has been stayed pending the Ninth Circuit’s disposition of 23 Plaintiff’s interlocutory appeal. Resolution now filed its Motion to Intervene in light of 24 the Ninth Circuit proceedings and in anticipation of the republication of the FEIS and 25 further time-sensitive litigation. (Doc. 109 at 2). Even if Resolution delayed its 26 intervention for a few months without reason, the delay caused no prejudice to the parties 27 and the Court has only preliminarily engaged with the issues in this case. Accordingly, 28 the Court finds that Resolution’s Motion to Intervene is timely. 1 b. Adequacy of representation by existing parties 2 “The burden of showing inadequacy of representation is ‘minimal’ and satisfied if 3 the applicant can demonstrate that representation of its interests ‘may be’ inadequate.” 4 Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 898 (9th Cir. 2011) 5 (quoting Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)). Courts consider 6 three factors when evaluating adequacy of representation: “(1) whether the interest of a 7 present party is such that it will undoubtedly make all of a proposed intervenor’s 8 arguments; (2) whether the present party is capable and willing to make such arguments; 9 and (3) whether a proposed intervenor would offer any necessary elements to the 10 proceeding that other parties would neglect.” Arakaki, 324 F.3d at 1086. If a proposed 11 intervenor and an existing party “share the same ultimate objective, a presumption of 12 adequacy of representation arises,” which is rebuttable only by a “compelling showing of 13 inadequacy of representation.” Citizens for Balanced Use, 647 F.3d at 898 (internal 14 quotation marks omitted). 15 Plaintiff argues that the presumption of adequacy arises because “Resolution and 16 the United States share the same ultimate objective of defending the land transfer statute 17 against each of Apache Stronghold’s claims.” (Doc. 112 at 7 (internal quotation marks 18 omitted)). Resolution counters that “Defendants and Resolution have overlapping but 19 distinct interests” because Defendants’ interests include defending the federal 20 government’s constitutional power to manage its land, complying with congressional 21 commands, and serving the needs of the public and their constituents, while Resolution’s 22 interest “is to develop the mine on this particular parcel of land and to protect its $2.3 23 billion investment in the project.” (Doc. 113 at 8–9). 24 The Court finds Resolution’s citation to Southwest Center for Biological Diversity 25 v. Berg instructive. 268 F.3d 810 (9th Cir. 2001). There, developers sought to intervene in 26 a lawsuit brought by environmental groups against certain federal officers and others. Id. 27 at 814. The environmental groups challenged the validity of an agreement and permit for 28 certain development projects that would affect several protected species. Id. The Ninth 1 Circuit held that even if the presumption of adequacy applied, it was rebutted because the 2 developers and defendants did “not have sufficiently congruent interests.” Id. at 823. 3 Specifically, the court found that the defendants’ considerations were “broader than the 4 profit-motives animating developers” and that the defendants could not be expected to 5 protect the developers’ private interests. Id. Thus, the Ninth Circuit concluded that “[t]he 6 interests of the government and private sector may diverge” such that intervention was 7 warranted. Id. at 823–24. 8 Similarly, here, even if Defendants and Resolution have the same ultimate 9 objective in defending the land transfer, as Plaintiff argues, Resolution may have private 10 interests that the federal government does not share and cannot represent. Like in 11 Southwest Center, Plaintiff here is challenging a government action that would redound 12 specifically to the benefit of Resolution. Although the challenged action here is a land 13 transfer mandated by Congress as opposed to the development agreement at issue in 14 Southwest Center, it is still true that Defendants’ public considerations in carrying out the 15 action are different from Resolution’s private, profit-oriented ones. Those differing 16 interests may lend themselves to different arguments and elements that the existing 17 Defendants cannot or would not offer in this litigation. Accordingly, the Court finds that 18 Resolution has established that its interests are not adequately represented and that it has 19 a right to intervene. 20 III. PERMISSIVE INTERVENTION 21 Even if Resolution were not entitled to intervene as of right, the Court would 22 permit its intervention. Courts may allow intervention by a non-party where there is 23 “(1) an independent ground for jurisdiction; (2) a timely motion; and (3) a common 24 question of law and fact between the movant’s claim or defense and the main action.” 25 Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992). “Even if an 26 applicant satisfies those threshold requirements, the district court has discretion to deny 27 permissive intervention.” Cosgrove v. Nat’l Fire & Marine Ins. Co., 770 F. App’x 793, 28 795 (9th Cir. 2019). In exercising that discretion, “a court must consider whether 1 | intervention will unduly delay or prejudice the original parties and should consider 2| whether the applicant’s interests are adequately represented by the existing parties and whether judicial economy favors intervention.” Miracle v. Hobbs, 333 F.R.D. 151, 156 4) (D. Ariz. 2019) (citing Venegas v. Skaggs, 867 F.2d 527, 530-31 (9th Cir. 1989)). 5 In this case, it is plain that there is federal question jurisdiction and _ that Resolution’s defenses involve common questions of law and fact, and Plaintiff does not 7 | dispute those elements. Moreover, the Court has found that Plaintiff's Motion was timely, 8 | so all the requisite elements are met. The Court also finds that Resolution’s intervention 9| will not cause undue delay or prejudice, that its interests may not be adequately represented by Defendants, and that Resolution’s intervention is warranted. 11 IV. CONCLUSION 12 Finding that Resolution is entitled to intervene, the Court will lift the stay for the 13 | limited purpose of granting the Motion to Intervene. The stay otherwise remains in effect. 14| Accordingly, 15 IT IS ORDERED that Resolution Copper Mining LLC’s Motion for Limited Lift of Stay and to Intervene (Doc. 109) is granted. 17 IT IS FURTHER ORDERED that the stay is lifted for the sole purpose of 18 | issuing this Order and permitting Resolution’s intervention; the stay and the other 19 | provisions of the Court’s May 12, 2021 Order (Doc. 81) otherwise remain in effect. 20 IT IS FURTHER ORDERED that Resolution Copper Mining LLC’s Lodged Answer (Doc. 110) is deemed filed. 22 Dated this 26th day of May, 2023. 23
United States District Judge 26 27 28