United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION OF BNSF RAILWAY COMPANY TO INTERVENE
J. BRYAN, UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on the Motion of BNSF Railway
Company to Intervene as Plaintiff. Dkt. 22. The Court has
considered the motion and the remainder of the file herein.
seeks to intervene as a matter of right under Fed. R. Civ.P.
24(a)(1)(2). BNSF seeks permissive intervention under
Fed.R.Civ.P. 24(b)(1)(B) in the alternative. The motion to
intervene should be granted on both grounds.
following factual summary assumes the truth of the
allegations of the underlying Complaint filed by the
plaintiffs, Lighthouse Resources Inc. and its subsidiaries
case arises out of efforts by Lighthouse to develop a coal
export terminal in Longview, Washington. Dkt. 1
¶¶5, 16. Lighthouse is a coal energy supply chain
company that manages coal mining, transfer by rail and
ocean-going vessels, and sale to end users. Id. at
¶¶5, 16, 36. Lighthouse mines mineral assets in
Wyoming and Montana for sale in Asian markets. Id.
Lighthouse presently ships coal out of an export terminal in
Canada, which has increased shipping costs and constrains
Lighthouse's ability to fulfill contractual terms and
meet market demand, which is increasing. Id. at
has worked to identify, contract with, and/or develop a new
coal export facility since 2009, and it has identified the
Millennium Bulk Terminal (MBT) in Longview, Washington, as
its preferred west coast site. Dkt. 1 at ¶¶52, 54.
MBT weekly receives coal by rail, and the coal is loaded onto
trucks for distribution. Id. at ¶62. BNSF
provides common carrier service to MBT, which is also capable
of receiving trains from Union Pacific. Id.
¶67. Starting in 2012, Lighthouse began the permitting
process for the proposed coal export facility at MBT, which
has involved approximately two dozen federal and state plans,
permits, and approvals. Id. at ¶70.
three named defendants, Jay Inslee, Governor to the State of
Washington, Maia Bellon, Director of the Washington
Department of Ecology, and Hillary Franz, Commissioner of
Public Lands (collectively, “the State”), have
publicly expressed personal opposition to exporting coal.
Dkt. 1 at ¶¶80-98. Under the façade of
official state policy, the named defendants have coordinated
with Oregon and California to thwart Lighthouse expansion of
coal exports. Id. at ¶99-116. Through
administrative decisions, the State has effectively
“blocked” development of the MBT, by, inter
alia, (1) issuing an Environmental Impact Statement
(EIS), listing nine unavoidable, significant adverse impacts;
(2) denying approval of a sublease between Lighthouse and
another company that would allow Lighthouse, as sublessee, to
handle coal at MBT; and (3) denying with prejudice
Lighthouse's § 401 Clean Water Act (CWA)
certification, a prerequisite to obtaining other necessary
permits. Id. at ¶¶63, 130, 155, 161, 163.
See also, Dkt. 1-1(§ 401 CWA certification),
Dkt. 1-2 (DNR denial of sublease). Administrative decisions
in part formed the basis for the denial of a Shoreline Permit
Application by Cowlitz County. Id. at ¶181.
See Dkt. 1-3.
Complaint alleges that the State's administrative
decisions violate the dormant commerce clause of the United
States Constitution, as well as the Interstate Commerce
Commission Termination Act (ICCTA), which gives the Surface
Transportation Board exclusive authority to regulate rail
transportation. 49 U.S.C. §10101 et seq.
See City of Auburn v. United States, 154 F.3d 1026,
1030-31 (9th Cir. 1998).
proposed Complaint in Intervention for Declaratory and
Injunctive Relief begins with the same factual premise as the
underlying Complaint: the named defendants misused their
regulatory powers to prevent coal commerce, including
transport of coal by BNSF. Dkt. 22-1 at ¶1, 3. BNSF
seeks to join Lighthouse in alleging violations of the
dormant commerce clause and the ICCTA. Dkt. Id. at
¶¶16-18. BNSF also alleges that the State violated
the foreign affairs doctrine, by interfering with the federal
government's national policy on coal resources and
exports. Id. at ¶¶19, 119-126.
proposed intervenor complaint alleges standing (Dkt. 22-1 at
¶¶28-30) and jurisdiction (id. at
Intervention as a ...