Forest Guardians v. Bureau of Land Management

188 F.R.D. 389, 1999 WL 561983
District Court, D. New Mexico·Decided July 8, 1999·No. No. CIV98-1035 MV/WWD-ACE·Published·Cited by 1 cases

Opinion

AMENDED MEMORANDUM OPINION AND ORDER

VAZQUEZ, District Judge.

THIS MATTER is before the Court on FNF Properties’ Application for Leave to Intervene, filed October 2,1998 [Doc. No. 2], Application for Leave to Intervene of Irvin and Patricia Pablo, Irene Arrossa and THG Corporation, filed October 28,1998 [Doc. No. 8], and FNF Properties’ Motion for Expedited Consideration of Application for Leave to Intervene, filed November 4, 1998 [Doc. No. 16], The Court, having reviewed the pleadings and relevant law, and being otherwise fully informed, finds that the motions to intervene are well taken and will be granted in part, and that the motion for expedited consideration will be granted.

In addition, FNF Properties filed a Motion to Certify Interlocutory Appeal on April 23, 1999 [Doc. No. 72.]. The Court, having reviewed the pleadings and relevant law, and being otherwise fully informed, finds that the motion is well taken and will be granted, as set forth in the Supplement below.

Background

On August 27, 1998, Plaintiffs Forest Guardians and T and E, Inc., both non-profit environmental advocacy groups, filed a complaint in this Court essentially alleging that, in issuing grazing permits in the El Malpais National Conservation Area (NCA) in New Mexico, Defendant Bureau of Land Management (BLM) did not comply with the mandates of the National Environmental Policy Act, 42 U.S.C. § 4321 (NEPA). Claiming that livestock grazing has an adverse environmental impact in El Malpais, Plaintiffs seek a declaration pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(APA), that the BLM failed to observe NEPA; an order requiting the BLM to comply with NEPA; an injunction to prevent livestock grazing; revocation of current grazing permits pending compliance; and costs and attorney’s fees.

All applicants currently hold grazing rights and graze cattle within the El Malpais NCA and apply for leave to intervene as Defendants. Applicant FNF Properties, as the holder of the largest grazing allotment in the NCA, alleges that its interests will be directly and severely impacted if the Court grants either the declaratory or injunctive relief Plaintiffs request. Applicants Pablo, Arrossa, and THG currently hold permits for smaller grazing allotments, but all contend that without those grazing rights or the ability to graze their livestock within their permit area, they will be forced to abandon their ranching activities. Mr. and Mrs. Pablo explain that they are persons of modest means and that their life savings are invested in their ranch. The Arrossa ranch is what remains of a family legacy that spans many generations. Applicants Pablo, Arrossa, and THG, in addition to having an economic interest in the outcome of this case, all claim having at their own expense supported wildlife in the El Malpais by providing year-round water, assert that they practice ecologically sensitive ranching and, much like Plaintiffs, seek the preservation of El Malpais in its wild beauty and natural state.

Defendant BLM neither opposes nor supports either application to intervene. The BLM does ask, however, that the Court limit the intervenors’ participation, allowing the intervenors only to address the positions taken by Plaintiffs and Defendant, and not allowing them to bring affirmative claims, claims for attorney’s fees, or file dispositive motions except by express leave of the Court.

Discussion

Parties may intervene, upon timely application, either as of right or permissively. Fed.R.Civ.P. 24. When as of right, an intervenor must show in relevant part 1) that she has an interest relating to the property or transaction which is the subject of the action, [391]*3912) that she is so situated that the disposition of the action may as a practical matter impair or impede her ability to protect that interest, and 3) that existing parties do not adequately protect that interest. See id. For permissive intervention, a party may intervene when her “claim or defense and the main action have a question of law or fact in common.” Id.

Applicants focus most of their briefs on the argument that intervention in this case should come as of right. FNF Properties, leading the charge,1 argues that as the holder of grazing permits and the owner of water rights and substantial range improvements within the El Malpais NCA it has a significant financial interest in the Court’s adjudication of BLM’s compliance with NEPA in administering grazing permits. FNF Properties also advances that a ruling on compliance could impair or impede its ability to protect that interest, since a determination that the BLM has failed to comply with NEPA, despite being required to do so, could lead to a suspension or revocation of grazing permits that could harm it and other intervenors financially. Finally, FNF Properties claims its and the BLM’s interests are somewhat divergent, since it seeks to protect its grazing rights and the BLM, in addition to being subject to NEPA, must represent the public interest in the management of lands for multiple uses.

In response, Plaintiffs Forest Guardians and T and E concentrate on one point: that applicants only have an economic interest in this litigation, and that economic interests in the outcome of NEPA litigation are not protectable interests for purposes of intervention in such actions. Plaintiffs further maintain that, not having a protectable interest, applicants can not meet the second and third as-of-right intervention requirements. Lastly, Forest Guardians and T and E suggest that were the Court to grant intervention, the Court should limit such intervention to the remedial phases of this action, citing Forest Conservation Council v. United States Forest Service, 66 F.3d 1489 (9th Cir.1995).2 It is uncontroverted that the motions to intervene in this case are timely.

As the starting point of its analysis, the Court, mindful that in the Tenth Circuit intervention “has tended to follow a somewhat liberal line,” Nat’l Farm Lines v. Interstate Commerce Comm’n., 564 F.2d 381, 384 (10th Cir.1977), looks to Coalition of Arizona/New Mexico Counties v. Dept. of Interior, 100 F.3d 837 (10th Cir.1996), as one of the Circuit’s latest pronouncements on intervention. In that Endangered Species Act (ESA) case, the court required that for Rule 24 purposes an interest be “direct, substantial, and legally protectable.” Id. at 840. Focusing both on the intervenor’s direct involvement with the species at issue, as well as the ESA provision allowing a private citizen to sue for the placement of species on an endangered list, the Coalition court held that “economic interest is not the sine qua non of the interest analysis for intervention as of right.” Id. at 841.

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Forest Guardians v. Bureau of Land Management, 188 F.R.D. 389, 1999 WL 561983 (D.N.M. 1999).

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