1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DESERT PROTECTION SOCIETY, No. 2:19-cv-00198-TLN-CKD 12 Plaintiff, 13 v. ORDER 14 DAVID BERNHARDT, JOE STOUT, THE UNITED STATES BUREAU OF 15 LAND MANAGEMENT, AND THE UNITED STATES DEPARTMENT OF 16 THE INTERIOR, 17 Defendants. 18 19 This matter is before the Court on Proposed Defendant-Intervenor, Eagle Crest Energy 20 Company, Inc.’s (“ECEC”), Motion to Intervene and accompanying memorandum of points and 21 authorities and attached Proposed Answer (ECF Nos. 6, 7, 7-1). Neither Plaintiff Desert 22 Protection Society (“Plaintiff”) nor Defendants David Bernhardt, Joe Stout, the United States 23 Bureau of Land Management, and the United States Department of the Interior (collectively 24 “Federal Defendants”) have taken a position on the Motion (ECF Nos. 12, 13). For the reasons 25 set forth below, the Court GRANTS ECEC’s Motion to Intervene. 26 I. FACTUAL AND PROCEDURAL BACKGROUND 27 The instant litigation concerns a challenge to the August 2018 approval of the Eagle Crest 28 Energy Gen-Tie and Water Pipeline Right-of-Way Project (“Project”) by Federal Defendants. 1 (ECF No. 1 at ¶ 2.) Plaintiff seeks: (1) preliminary injunctive relief restraining Federal 2 Defendants from taking any action in connection with the Project that would result in changes to 3 the physical environment; (2) declaratory relief that Federal Defendants violated federal statutes; 4 and (3) permanent injunctive relief setting aside Federal Defendants’ approvals pending 5 compliance with federal statutes. (ECF No. 1 at ¶ 9.) 6 On May 2, 2019, ECEC filed the instant Motion to Intervene, seeking to intervene as a 7 matter of right under Federal Rule of Civil Procedure 24(a)(2), or in the alternative, seeking 8 permissive intervention under Federal Rule of Civil Procedure 24(b). (ECF No. 6.) On May 29, 9 2019, Federal Defendants filed their response to ECEC’s Motion, taking no position on the 10 Motion. (ECF No. 12.) On May 30, 2019, Plaintiff filed its response to ECEC’s Motion also 11 taking no position on the Motion. (ECF No. 13). 12 II. STANDARD OF LAW 13 Federal Rule of Civil Procedure (“Rule”) 24 provides for intervention as a matter of right 14 and permissive intervention. When no federal statute confers an unconditional right to intervene, 15 Rule 24(a) provides for intervention of right on timely application of anyone who: 16 claims an interest relating to the property or transaction which is the 17 subject of the action and the applicant is so situated that the 18 disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s 19 interest is adequately represented by existing parties.” 20 Fed. R. Civ. P. 24(a)(2). 21 The Ninth Circuit applies a four-part test to evaluate a motion to intervene as a matter of 22 right under Rule 24: (1) the motion must be timely; (2) the proposed intervenor must have a 23 “significant protectable” interest related to the property or transaction which is the subject of the 24 action; (3) the action’s disposition may, as a practical matter, impair or impede the applicant’s 25 ability to protect that interest; and (4) the proposed intervenor’s interest may be inadequately 26 represented by the parties to the action. Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 27 817 (9th Cir. 2001). 28 1 III. ANALYSIS 2 A. Timeliness 3 In determining whether a motion to intervene is timely, courts consider three factors: “(1) 4 the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other 5 parties; and (3) the reason for and length of the delay.” League of United Latin Am. Citizens v. 6 Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997) (quoting County of Orange v. Air California, 799 7 F.2d 535, 537 (9th Cir. 1986)). ECEC argues its motion is timely since the parties have not filed 8 any dispositive motions, the administrative record has not yet been filed with the Court, and the 9 motion was filed within approximately four months of the Complaint. (ECF No. 7 at 6.) 10 Additionally, ECEC asserts its participation will not prejudice the other parties, it will abide by 11 any scheduling order, and it will avoid duplication of issues with other parties. (Id.) ECEC also 12 filed a “Proposed Answer” to the Complaint to avoid any possible delay. (ECF No. 7-1.) 13 Litigation is still in the very early stages, and neither party opposes the motion. Since 14 there is no suggestion that ECEC’s intervention will cause delay or prejudice, the Court finds 15 ECEC’s Motion to Intervene is timely. 16 B. Significant Protectable Interest 17 To show a “significantly protectable interest” that justifies intervention of right, the 18 prospective intervenor must establish: (1) “the interest is protectable under some law,” and (2) 19 “there is a relationship between the legally protected interest and the claims at issue.” Wilderness 20 Soc’y v. United States Forest Serv., 630 F.3d 1173, 1181 (9th Cir. 2011). A prospective 21 intervener demonstrates a significantly protectable interest when “the injunctive relief sought by 22 the plaintiffs will have direct, immediate, and harmful effects upon a third party’s legally 23 protectable interests.” Sw. Ctr. for Biological Diversity, 268 F.3d at 818 (9th Cir. 2001). ECEC 24 argues its protectable interests include the design, development, and implementation of the 25 project, as well as the ability to enter into commercial contracts. (ECF No. 7 at 7.) Furthermore, 26 ECEC has a direct interest in the ability to proceed with the Project, which has been fully 27 approved by two federal agencies pursuant to applicable statutory and regulatory requirements. 28 (Id.) 1 ECEC has demonstrated that it has a significantly protectable interest in the timely 2 progression of the Project, and Plaintiff’s request for injunctive relief may adversely affect that 3 interest. Accordingly, the Court finds ECEC has established the second factor of the Ninth 4 Circuit test. 5 C. Impairment or Impediment of Interest 6 Since the Court has found a significantly protectable interest, it now turns to the third 7 factor. The proposed intervenor establishes this factor when it shows that the action’s disposition 8 may as a practical matter impair or impede its ability to protect the asserted interest. Sw. Ctr. for 9 Biological Diversity, 268 F.3d at 822; see Fed. R. Civ. P. 24 advisory committee notes. ECEC 10 asserts Plaintiff’s action seeks to set aside the approvals necessary to implement the Project, 11 which would delay the Project’s schedule and impair ECEC’s ability to engage in commercial 12 and energy contracts. (ECF No. 7 at 8.) Such delays and impediments threaten the viability of 13 the Project and ECEC’s business. (Id.) The relief requested by Plaintiffs would prevent ECEC 14 from timely completing the Project and engaging in commercial contracts. Since the disposition 15 of this action may impair or impede ECEC’s ability to protect its interests, the third factor is 16 satisfied. 17 D. Inadequate Representation 18 Finally, the Court considers the fourth factor for intervention of right.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DESERT PROTECTION SOCIETY, No. 2:19-cv-00198-TLN-CKD 12 Plaintiff, 13 v. ORDER 14 DAVID BERNHARDT, JOE STOUT, THE UNITED STATES BUREAU OF 15 LAND MANAGEMENT, AND THE UNITED STATES DEPARTMENT OF 16 THE INTERIOR, 17 Defendants. 18 19 This matter is before the Court on Proposed Defendant-Intervenor, Eagle Crest Energy 20 Company, Inc.’s (“ECEC”), Motion to Intervene and accompanying memorandum of points and 21 authorities and attached Proposed Answer (ECF Nos. 6, 7, 7-1). Neither Plaintiff Desert 22 Protection Society (“Plaintiff”) nor Defendants David Bernhardt, Joe Stout, the United States 23 Bureau of Land Management, and the United States Department of the Interior (collectively 24 “Federal Defendants”) have taken a position on the Motion (ECF Nos. 12, 13). For the reasons 25 set forth below, the Court GRANTS ECEC’s Motion to Intervene. 26 I. FACTUAL AND PROCEDURAL BACKGROUND 27 The instant litigation concerns a challenge to the August 2018 approval of the Eagle Crest 28 Energy Gen-Tie and Water Pipeline Right-of-Way Project (“Project”) by Federal Defendants. 1 (ECF No. 1 at ¶ 2.) Plaintiff seeks: (1) preliminary injunctive relief restraining Federal 2 Defendants from taking any action in connection with the Project that would result in changes to 3 the physical environment; (2) declaratory relief that Federal Defendants violated federal statutes; 4 and (3) permanent injunctive relief setting aside Federal Defendants’ approvals pending 5 compliance with federal statutes. (ECF No. 1 at ¶ 9.) 6 On May 2, 2019, ECEC filed the instant Motion to Intervene, seeking to intervene as a 7 matter of right under Federal Rule of Civil Procedure 24(a)(2), or in the alternative, seeking 8 permissive intervention under Federal Rule of Civil Procedure 24(b). (ECF No. 6.) On May 29, 9 2019, Federal Defendants filed their response to ECEC’s Motion, taking no position on the 10 Motion. (ECF No. 12.) On May 30, 2019, Plaintiff filed its response to ECEC’s Motion also 11 taking no position on the Motion. (ECF No. 13). 12 II. STANDARD OF LAW 13 Federal Rule of Civil Procedure (“Rule”) 24 provides for intervention as a matter of right 14 and permissive intervention. When no federal statute confers an unconditional right to intervene, 15 Rule 24(a) provides for intervention of right on timely application of anyone who: 16 claims an interest relating to the property or transaction which is the 17 subject of the action and the applicant is so situated that the 18 disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s 19 interest is adequately represented by existing parties.” 20 Fed. R. Civ. P. 24(a)(2). 21 The Ninth Circuit applies a four-part test to evaluate a motion to intervene as a matter of 22 right under Rule 24: (1) the motion must be timely; (2) the proposed intervenor must have a 23 “significant protectable” interest related to the property or transaction which is the subject of the 24 action; (3) the action’s disposition may, as a practical matter, impair or impede the applicant’s 25 ability to protect that interest; and (4) the proposed intervenor’s interest may be inadequately 26 represented by the parties to the action. Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 27 817 (9th Cir. 2001). 28 1 III. ANALYSIS 2 A. Timeliness 3 In determining whether a motion to intervene is timely, courts consider three factors: “(1) 4 the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other 5 parties; and (3) the reason for and length of the delay.” League of United Latin Am. Citizens v. 6 Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997) (quoting County of Orange v. Air California, 799 7 F.2d 535, 537 (9th Cir. 1986)). ECEC argues its motion is timely since the parties have not filed 8 any dispositive motions, the administrative record has not yet been filed with the Court, and the 9 motion was filed within approximately four months of the Complaint. (ECF No. 7 at 6.) 10 Additionally, ECEC asserts its participation will not prejudice the other parties, it will abide by 11 any scheduling order, and it will avoid duplication of issues with other parties. (Id.) ECEC also 12 filed a “Proposed Answer” to the Complaint to avoid any possible delay. (ECF No. 7-1.) 13 Litigation is still in the very early stages, and neither party opposes the motion. Since 14 there is no suggestion that ECEC’s intervention will cause delay or prejudice, the Court finds 15 ECEC’s Motion to Intervene is timely. 16 B. Significant Protectable Interest 17 To show a “significantly protectable interest” that justifies intervention of right, the 18 prospective intervenor must establish: (1) “the interest is protectable under some law,” and (2) 19 “there is a relationship between the legally protected interest and the claims at issue.” Wilderness 20 Soc’y v. United States Forest Serv., 630 F.3d 1173, 1181 (9th Cir. 2011). A prospective 21 intervener demonstrates a significantly protectable interest when “the injunctive relief sought by 22 the plaintiffs will have direct, immediate, and harmful effects upon a third party’s legally 23 protectable interests.” Sw. Ctr. for Biological Diversity, 268 F.3d at 818 (9th Cir. 2001). ECEC 24 argues its protectable interests include the design, development, and implementation of the 25 project, as well as the ability to enter into commercial contracts. (ECF No. 7 at 7.) Furthermore, 26 ECEC has a direct interest in the ability to proceed with the Project, which has been fully 27 approved by two federal agencies pursuant to applicable statutory and regulatory requirements. 28 (Id.) 1 ECEC has demonstrated that it has a significantly protectable interest in the timely 2 progression of the Project, and Plaintiff’s request for injunctive relief may adversely affect that 3 interest. Accordingly, the Court finds ECEC has established the second factor of the Ninth 4 Circuit test. 5 C. Impairment or Impediment of Interest 6 Since the Court has found a significantly protectable interest, it now turns to the third 7 factor. The proposed intervenor establishes this factor when it shows that the action’s disposition 8 may as a practical matter impair or impede its ability to protect the asserted interest. Sw. Ctr. for 9 Biological Diversity, 268 F.3d at 822; see Fed. R. Civ. P. 24 advisory committee notes. ECEC 10 asserts Plaintiff’s action seeks to set aside the approvals necessary to implement the Project, 11 which would delay the Project’s schedule and impair ECEC’s ability to engage in commercial 12 and energy contracts. (ECF No. 7 at 8.) Such delays and impediments threaten the viability of 13 the Project and ECEC’s business. (Id.) The relief requested by Plaintiffs would prevent ECEC 14 from timely completing the Project and engaging in commercial contracts. Since the disposition 15 of this action may impair or impede ECEC’s ability to protect its interests, the third factor is 16 satisfied. 17 D. Inadequate Representation 18 Finally, the Court considers the fourth factor for intervention of right. In evaluating 19 whether a prospective intervenor’s interests are adequately represented by the existing parties, the 20 Court considers: “(1) whether the interest of a present party is such that it will undoubtedly make 21 all of a proposed intervenor’s arguments; (2) whether the present party is capable and willing to 22 make such arguments; and (3) whether a proposed intervenor would offer any necessary elements 23 to the proceeding that other parties would neglect.” Citizens for Balanced Use v. Mont. 24 Wilderness Ass’n, 647 F.3d 893, 898 (9th Cir. 2011) (quoting Arakaki v. Cayetano, 324 F.3d 25 1078, 1086 (9th Cir. 2003)). ECEC asserts neither Plaintiff, as the adverse party, nor Federal 26 Defendants will adequately represent its interests. (ECF No. 7 at 8–9.) Specifically, ECEC 27 argues that, while Federal Defendants will defend the process followed and the approved 28 decisions, their shared interest in defending the approvals are not sufficiently congruent. (Id. at 1 9.) ECEC has significant economic and commercial interest in the Project — including an 2 investment of nearly $30 million and twelve years of staff time and resources — that Federal 3 Defendants cannot be expected to protect. (Id.) Therefore, ECEC anticipates that it may take 4 different positions on jurisdiction, merits issues, appropriate remedies, and potential settlement 5 discussions than the other parties. (Id.) 6 The Court finds that ECEC will likely present additional arguments and offer other 7 necessary elements to the proceeding which would not be captured by the other parties, thereby 8 satisfying the final factor. Therefore, the Court finds ECEC has established the presence of all 9 four factors to intervene as a matter of right. Accordingly, the Court GRANTS ECEC’s Motion 10 to Intervene. 11 E. Permissive Intervention 12 In light of the Court’s decision granting ECEC’s intervention as a matter of right, the issue 13 of permissive intervention is moot. 14 IV. CONCLUSION 15 The Court hereby GRANTS ECEC’s Motion to Intervene and instructs ECEC to file its 16 Answer within 14 days. 17 IT IS SO ORDERED. 18 DATED: March 16, 2020 19 20 21 22 23 24 25 26 27 28