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Northwest Environmental Advocates v. U.S. Department of Commerce

United States District Court, W.D. Washington, Seattle

March 7, 2018




         This matter comes before the Court on the Washington State Farm Bureau Federation's (“WFB”) and the Washington Cattlemen's Association's (“WCA”) motion to intervene (Dkt. No. 67). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES the motion for the reasons explained herein.


         WFB and WCA (collectively “Proposed Intervenors”) seek to join Defendants-the U.S. Department of Commerce (“Commerce”), the National Oceanic and Atmospheric Administration (“NOAA”), and the Environmental Protection Agency (“EPA”) (collectively “Federal Agencies”); and the existing intervenor Washington state-in this environmental suit. (Dkt. No. 67.) Proposed Intervenors move to intervene either as of right or permissively under Federal Rule of Civil Procedure 24. (Dkt. No. 67 at 3-11.)

         Plaintiff Northwest Environmental Advocates (“NWEA”) brings this Administrative Procedure Act (“APA”) suit asserting that its members have been harmed by Federal Agencies' actions or inactions under the Clean Water Act (“CWA”) and the Coastal Zone Act Reauthorization Amendments (“CZARA”), the latter of which represents a portion of the Coastal Zone Management Act (“CZMA”). (Dkt. No. 74 at 1-2.) NWEA also brings an Endangered Species Act (“ESA”) citizen suit, alleging that Federal Agencies have unlawfully failed to consult on the EPA's approvals and funding of Washington's Nonpoint Source Pollution Management Programs. (Id.) This Court previously articulated relevant background information and summarized the associated statutory schemes in its order granting in part and denying in part Defendants' motion to dismiss, and will not repeat that information here. (Dkt. No. 39.)

         Proposed Intervenors claim that, should NWEA prevail, the farmers and ranchers they represent will be directly affected by a loss of CZMA and CWA grant funds that support Washington's nonpoint source pollution programs and the development of best management practices (“BMPs”), and by regulatory costs that may arise from a finding that the EPA arbitrarily approved Washington's CWA Section 319 Nonpoint Management Program. (Dkt. No. 67 at 6-7, 9.) Proposed Intervenors also allege that they would be harmed by additional layers of regulatory approval resulting from a court order compelling Federal Agencies to engage in ESA consultation. (Id. at 6-7.) The Court previously granted Washington's unopposed motion to intervene on behalf of the Federal Agency defendants (Dkt. No. 79). Federal Agencies oppose WFB's and WCA's intervention (Dkt. No. 80).


         A. Intervention as of Right

         Absent an unconditional right to intervene by statute, a party seeking to intervene as a matter of right must: (1) timely move to intervene, (2) have a significantly protectable interest relating to the property or transaction that is the subject of the action, (3) be situated such that the disposition of the action may impair or impede the party's ability to protect that interest, and (4) not be adequately represented by existing parties. Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003); Fed.R.Civ.P. 24(a)(2). The burden is on the intervenors to demonstrate all four prongs. United States v. City of Los Angeles, 288 F.3d 391, 397 (9th Cir. 2002).

         “An applicant has a ‘significant protectable interest' in an action if (1) it asserts an interest that is protected under some law, and (2) there is a ‘relationship' between its legally protected interest and the plaintiff's claims.” State ex rel. Lockyer v. United States, 450 F.3d 436, 441 (9th Cir. 2006) (quoting Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998)). The Supreme Court has yet to clearly define an interest that satisfies Rule 24(a)(2). See Arakaki, 324 F.3d at 1084 (stating that the phrase “significantly protectable” is not a term of art in law and “sufficient room for disagreement exists” over its meaning). The Ninth Circuit views the “interest test” as “primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” In re Estate of Ferdinand E. Marcos Human Rights Litig., 536 F.3d 980, 985 (9th Cir. 2008) (internal quotes omitted). When injunctive relief is sought that will have “direct, immediate, and harmful effects upon a third party's legally protectable interests, that party satisfies the ‘interest' test of Fed.R.Civ.P. 24(a)(2).” Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1494 (9th Cir. 1995). Whether resolution of an action will impair or impede a proposed intervenor's ability to safeguard their protectable interest is considered as “a practical matter.” Smith v. Los Angeles Unified Sch. Dist., 830 F.3d 843, 862 (9th Cir. 2016). However, intervention is improper where intervenors have an “alternative forum where they can mount a robust defense.” Lockyer, 450 F.3d at 442.

         To determine if a proposed intervenor is adequately represented, the Court considers “(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.” Arakaki, 324 F.3d at 1086. The burden on proposed intervenors to show that the current representation is inadequate normally “is minimal, and would be satisfied if they could demonstrate that representation of their interests ‘may be' inadequate.” Id. (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). But when the would-be intervenor shares the same interest as a government entity party, absent a “very compelling showing to the contrary, ” a presumption that the government entity adequately represents the intervenor applies. Arakaki, 324 F.3d at 1086. This presumption can be overcome if the intervenor makes a compelling showing of distinct “parochial interests.” Citizens for Balanced Use v. Mont. Wilderness Ass'n, 647 F.3d 893, 899 (9th Cir. 2011).

         Proposed Intervenors timely moved to intervene. The remaining factors, by claim, [1] are discussed below.

         1. Claims #2-3:[2] Failure to Withhold Required Amounts From Washington's CWA Assistance Grants and Coastal Assistance Grants

         Proposed Intervenors allege both general and specific interests in NWEA's procedural claims. Their general allegation-that defunding Washington's CZARA Coastline Nonpoint Pollution Management Program and its 2015 CWA Nonpoint Program “will directly impact . . . their members' agricultural and livestock ...

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