Western Watersheds Project v. Deb Haaland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 5, 2022
• Docket: 20-35693
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 5 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WESTERN WATERSHEDS PROJECT; No. 20-35693 CENTER FOR BIOLOGICAL DIVERSITY, D.C. No. 1:18-cv-00187-REB

Plaintiffs-Appellees, MEMORANDUM* v.

DEB HAALAND, Secretary of Interior; BUREAU OF LAND MANAGEMENT, an agency of the United States,

Defendants,

STATE OF WYOMING; WESTERN ENERGY ALLIANCE; CHESAPEAKE EXPLORATION, L.L.C.,

Intervenor-Defendants,

v.

ANSCHUTZ EXPLORATION CORPORATION, Proposed Defendant- Intervenor,

Movant-Appellant.

WESTERN WATERSHEDS PROJECT; No. 20-35781

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. CENTER FOR BIOLOGICAL DIVERSITY, D.C. No. 1:18-cv-00187-REB

Plaintiffs-Appellees,

DEB HAALAND, Secretary of Interior; BUREAU OF LAND MANAGEMENT, an agency of the United States,

STATE OF WYOMING; WESTERN ENERGY ALLIANCE,

ANSCHUTZ EXPLORATION CORPORATION,

Appeal from the United States District Court for the District of Idaho Ronald E. Bush, Magistrate Judge, Presiding

Argued and Submitted June 9, 2021 Seattle, Washington

Before: GOULD, CLIFTON, and MILLER, Circuit Judges.

Movant-Appellant Anschutz Exploration Corporation (“AEC”) appeals the

District Court’s denial of its motion to intervene in this case. In two separate

orders, the District Court (i) denied AEC’s request to intervene for purposes of

2 appealing the court’s summary judgment decision in the first phase of this case,

and (ii) denied AEC’s request to participate in subsequent phases of the litigation.

We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

We assume familiarity with the factual and procedural history of this case,

which we describe in a separate opinion issued in a related case, Western

Watersheds Project v. Haaland, No. 20-35780, __ F.4th __ (9th Cir. __, 2022).

We review a denial of intervention de novo, and we review the timeliness

element for abuse of discretion. Smith v. L.A. Unified Sch. Dist., 830 F.3d 843,

853 (9th Cir. 2016).

Under Rule 24(a), a nonparty is entitled to intervention as of right when it

“(i) timely moves to intervene; (ii) has a significantly protectable interest related to

the subject of the action; (iii) may have that interest impaired by the disposition of

the action; and (iv) will not be adequately represented by existing parties.”

Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, 960 F.3d 603, 620

(9th Cir. 2020). Although AEC has satisfied the second and third elements, the

District Court concluded that AEC’s motion was untimely and that its interests

were adequately represented by the Western Energy Alliance (“WEA”), a trade

association that intervened to represent the interests of member companies in the

oil and gas industry, including AEC.

To determine whether a motion for intervention as of right is timely, we

3 consider the totality of circumstances facing the would-be intervenor, with a focus

on three primary factors: “(1) the stage of the proceeding at which an applicant

seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and

length of the delay.” Smith, 830 F.3d at 854. AEC moved to intervene within the

60-day window to appeal the District Court’s summary judgment decision in phase

one, and sought to enter the litigation as the case was “entering a new stage.” Both

factors favor intervention. See W. Watersheds, slip op. at 14–18. The sole

prejudice identified by the District Court, the possibility that Plaintiffs will face

additional arguments on appeal or during subsequent phases of the litigation, is not

a compelling basis for denying intervention. See id. at 20–22. Although AEC

argued that it did not intervene earlier merely “because it had no reason to suspect

the [c]ourt would cancel its leases,” cf. id. at 23–24, weighing all three timeliness

factors, we conclude that the District Court abused its discretion in concluding that

AEC’s motion was untimely.

Turning to the adequacy-of-representation element, we consider three

factors: “(1) whether the interest of a present party is such that it will undoubtedly

make all of a proposed intervenor’s arguments; (2) whether the present party is

capable and willing to make such arguments; and (3) whether a proposed

intervenor would offer any necessary elements to the proceeding that other parties

would neglect.” Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d

4 893, 898 (9th Cir. 2011). Although the arguments AEC seeks to raise would

become moot if intervention were granted, cf. W. Watersheds slip op. at 26, the

requirements in Rule 24(a) are to be “broadly interpreted in favor of intervention,”

and “our review is guided primarily by practical considerations, not technical

distinctions,” Citizens for Balanced Use, 647 F.3d at 897 (citation omitted). Here,

Plaintiffs have challenged over 2,200 federal leases across the American West.

See W. Watersheds slip op. at 6. AEC has invested tens of millions of dollars

acquiring and developing the leasehold interests imperiled by this litigation, and

therefore “has a substantial due process interest in the outcome of this litigation by

virtue of its contract” with the federal government, id. at 28. Thus, practical

considerations persuade us that AEC should be allowed to intervene both in the

phase one appeal and in future phases of litigation in which its remaining leases are

implicated.

Accordingly, we reverse that portion of the District Court’s first order

denying AEC’s motion to intervene in the phase one appeal. Likewise, we reverse

that portion of the District Court’s second order denying AEC’s motion to

intervene in future phases of the litigation.

Costs to be taxed against Plaintiffs-Appellees.

REVERSED and REMANDED for further proceedings.