United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION TO INTERVENE
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
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
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.)
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.)
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).
Intervention as of Right
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).
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.
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).
Intervenors timely moved to intervene. The remaining factors,
by claim,  are discussed below.
Claims #2-3: Failure to Withhold Required Amounts
From Washington's CWA Assistance Grants and
Coastal Assistance Grants
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 ...