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BORDER POWER PLANT WORKING GROUP v. DEPARTMENT OF ENERGY

United States District Court, S.D. California


September 16, 2005.

BORDER POWER PLANT WORKING GROUP, Plaintiff,
v.
DEPARTMENT OF ENERGY; SAMUEL W. BODMAN, in his official capacity; KEVIN KOLEVAR, in his official capacity; BUREAU OF LAND MANAGEMENT; REBECCA W. WATSON, in her official capacity, Defendants.

The opinion of the court was delivered by: MARSHA PECHMAN, District Judge

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO BAJA CALIFORNIA POWER, INC.'S AND TERMOELECTRICA U.S., LLC'S MOTIONS TO INTERVENE
Plaintiff hereby opposes the pending Motions to Intervene in the determination of the merits of the claims raised in Plaintiff's First Amended Complaint. This Court has already considered this issue in another phase of this case, rejecting Termoeléctrica U.S., LLC's (then "Sempra Energy Resources") (T-US) motion to intervene permissively and as of right, and holding that T-US was not entitled to intervene in the determination of the merits of Plaintiff's original claims.*fn1 Order Denying Motion to Intervene With Respect to the Merits Phase of Case, July 26, 2002. Plaintiff does not oppose Movants' present participation on the same terms as those set forth in that order, allowing Movants to participate as amici curiae in the determination of the merits of Plaintiff's claims and as Defendant/Intervenors to protect their interests during any remedial phase thereafter. However, for the reasons discussed herein, it would not be appropriate for Movants to intervene in the merits phase of the present proceedings.

I. Movants Are Collaterally Estopped from Relitigating the Issue of Intervention in the Determination of the Merits of Plaintiff's Claims

  Because the facts and law relevant to the present motion are virtually identical to those presented to the Court in connection with the July 2002 order, basic principles of collateral estoppel demand denial of the instant motions. See, e.g., Arizona v. California, 530 U.S. 392, 414 (2000). Issue preclusion attaches when (i) the issues in both proceedings are identical, (ii) the issue in the prior proceeding was "actually litigated and determined by a valid and final judgment,"*fn2 and (iii) "the determination is essential to the judgment." Id.

  Movant Baja California Power, Inc. (BCP), points to the Ninth Circuit's 2002 decision in Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002) — which addressed Rule 24(b) permissive intervention in an appeal of a judgment under the National Environmental Policy Act (NEPA) — as a "material change of circumstances" justifying its instant motion. See BCP's Memorandum of Points and Authorities in Support of Motion to Intervene (BCP Brief) at 2; see also T-US Motion to Intervene (T-US Brief) at 4. However, the Kootenai decision does not reflect a departure from preexisting Ninth Circuit rules, and thus cannot be characterized as a change of circumstances sufficient to overcome basic principles of collateral estoppel. To the contrary, the standards for granting Rule 24(b) permissive intervention generally, and this Court's discretion to allow private parties to intervene permissively in a NEPA claim, both predate Kootenai. Indeed, Movants cited these pre-Kootenai rules in their 2002 requests for permissive intervention. See Sempra Memorandum in Support of Motion to Intervene, May 24, 2002 at 11 (citing Wetlands Action Network v. United States Army Corps of Eng'rs, 222 F.3d 1105 (9th Cir. 2000) (allowing permissive intervention in NEPA case), cert. denied, 122 S. Ct. 41 (2001)); see also T-US Brief at 4 (same); see also BCP Brief at 4 (citing San Jose Mercury News, Inc. v. United States Dist. Ct-N.Dist. (San Jose), 187 F.3d 1096 (9th Cir. 1999) (setting forth standard for permissive intervention)); see also T-US Brief at 4 (same); Sempra Memorandum in Support of Motion to Intervene, May 24, 2002, at 11 (same); BCP Memorandum in Support of Motion to Intervene, November 7, 2002, at 8 (same). This Court did not grant permissive intervention as to the merits at that time and nothing has changed to warrant such intervention at present.

  II. Movants Are Not Entitled to Permissive Intervention on the Merits of Plaintiff's NEPA or Clean Air Claim

  As was the case prior to Kootenai, a district court may grant permissive intervention in a NEPA case if the movants satisfy the traditional Rule 24(b) requirements. San Jose Mercury News, 187 F.3d 1096 (setting forth Rule 24(b) standards); Wetlands Action Network, 222 F.3d 1105 (allowing permissive intervention on NEPA claim). Because Movants do not satisfy those requirements as to the merits of Plaintiffs' NEPA or Clean Air Act (CAA) claims, the instant motions must be denied. In particular, rather than demonstrate that their defenses share common questions of law or fact with the merits of Plaintiff's claims, the concerns expressed by Movants relate exclusively to the determination of the remedies of those claims.

  Nor have Movants met the requirements to intervene as of right in Plaintiff's Clean Air Claim. Because Movants could not be defendants in Plaintiff's Clean Air Act claim, they do not have a legally protectable interest in the merits of that claim. Even if they did have such an interest, they have not demonstrated that it would not be adequately represented by the Federal Defendants. For these reasons, discussed in more detail below, the motions to intervene should be denied.

  A. Legal Standard

  Because private parties do not have a "significant protectable interest" in NEPA compliance actions, they may not intervene as of right in NEPA actions pursuant to Rule 24(a). See Kootenai, 313 F.3d at 1108. When intervention as of right is not available, permissive intervention under Rule 24(b) may be appropriate. Id. at 1108-09. Rule 24(b) provides in relevant part:

Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
Fed.R.Civ.P. 24(b). The Ninth Circuit allows permissive intervention pursuant to Rule 24(b)(2) when: (1) the applicant's motion is timely; (2) the applicant's claim, defense, and the main action, have a question of law or fact in common; and (3) there are independent grounds for jurisdiction. San Jose Mercury News, 187 F.3d 1096.

  B. Movants' Defenses Do Not Have Any Question of Law or Fact in Common With the Merits of Plaintiff's Claims

  The merits of Plaintiff's claims concern whether the Federal Defendants complied with NEPA and/or the Clean Air Act prior to issuing the Presidential Permits and Rights-of-Way (the "Permits") at issue in this case. See, e.g., First Amended Complaint for Declaratory and Injunctive Relief at Relief ¶¶ 1-4. This is different from the Movants' sole concerns: "the validity of the Presidential Permit and right-of-way grants issued by the federal agencies," T-US Brief at 5, and the validity of "the federal law approvals that are necessary for BCP to operate its transmission line." BCP Brief at 5. These concerns relate to the appropriate remedy should the Court find Plaintiff's claims to have merit. As the Court is aware from the bifurcation and disposition of prior cross summary judgment motions in this case, the merits and the remedy are two distinct issues, and a decision that the Federal Defendants violated NEPA (or the Clean Air Act provisions at issue here) may not have any impact on the validity or continuity of the Permits. See, e.g., May 2, 2003 Merits Order re Summary Judgment (finding that Federal Defendants violated NEPA); July 9, 2003, Remedies Order (allowing Movants to continue to operate despite Federal Defendants' failure to comply with NEPA).

  Movants claim that they have specialized knowledge that would assist the Court in developing the relevant facts and legal issues pertinent to Plaintiff's claims. See T-US Brief at 6 (T-US possesses "information related to . . . the nature of T-US's contracts to provide energy . . ., and the specific harm to T-US if the permit and authorizations are set aside"). This information is not any different from information that Movants had when the Court last denied their motion to intervene on the merits. Moreover, such knowledge will be pertinent, if at all, only to the balance of the equities that would be appropriate in fashioning a remedy for any NEPA or Clean Air Act violations the Court finds. But even if this knowledge were relevant, it does not weigh in favor of Movants' intervention on the merits for at least two reasons. First, this is a record review case in which the relevant question is whether the Federal Defendants' actions were arbitrary and capricious based only on the record before them at the time they made those decisions. Public Citizen v. Dept. of Transportation, 316 F.3d 1002, 1020-21 (9th Cir. 2003), rev'd on other grounds, 540 U.S. 1088, 124 S. Ct. 2204 (2004). Second, to the extent that Movants have any truly unique information pertinent to the merits of Plaintiff's claims and if the Court determines that the record may be supplemented, Movants can readily introduce any such information as part of their amicus submissions on the merits.

  C. There is No Independent Basis of Jurisdiction to Support These Motions

  Although the Ninth Circuit has held that district courts have discretion to grant permissive intervention to private parties in NEPA cases, see, e.g., Kootenai, 313 F.3d 1094, it has not relaxed the basic jurisdictional requirements attendant to such intervention. Although the Ninth Circuit in Kootenai upheld the district court's grant of permissive intervention to private parties in a NEPA claim, id. at 1110, it did not discuss the basic jurisdictional requirement for permissive intervention.*fn3 However, another district court considering this issue well after Kootenai found that private parties that could not have been defendants in the original action lacked an independent basis of jurisdiction for purposes of Rule 24(b) in the district court. See Northwest Ecosystem Alliance, et al., v. Mark E. Rey, et al., No. 04-844P, slip op. at 5 (W.D. Wash. 2004), Exhibit A (filed herewith).

  As explained in Northwest Ecosystem Alliance,

[t]he trend in the Ninth Circuit has been to reject permissive intervention during the liability phase of the suit if defendant-intervenors cannot show a[n] independent basis for jurisdiction. In League of Wilderness Defenders v. Forsgren, the district court denied permissive intervention in the liability phase because defendant-intervenors could not show an independent basis for jurisdiction, as "only the Forest Service can be held liable under NEPA." 184 F. Supp. 2d 1058, 1060-61 (D. Or. 2002) (denying intervention as defendants to a timber company during the liability phase of the suit); see also Northwest Forest Resource Council, 82 F.3d at 839 (holding that the environmental group had not asserted independent basis for jurisdiction under the 1995 Rescissions Act because it only contained a mandate to federal agency secretaries, not private parties).
Slip op. at 5-6.

  In particular, the Northwest Ecosystem Alliance court rejected private parties' request for permissive intervention in the determination of the merits of plaintiffs' claims, finding that because only the federal government could be held liable under the statutes at issue, the court lacked an independent basis of jurisdiction over the private parties' request for intervention as to the merits. Id. at 5-7. The same is true in the present case. Only the federal government can be liable under NEPA. See, e.g., Forest Conservation Council v. Glickman, 82 F.3d 825, 1499 n. 11 (9th Cir. 1995) (because private entities could not be liable under NEPA, intervention was limited to the remedial phase of the proceedings); Churchill County v. Babbitt, 150 F.3d 1072, 1082 (9th Cir. 1998).

  Similarly, Plaintiff's Clean Air Act claim is brought under the statute's conformity provision, 42 U.S.C. § 7506(c)(1), which provides: No department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan. . . . The assurance of conformity to such an implementation plan shall be an affirmative responsibility of the head of such department, agency, or instrumentality.

 Like NEPA, this provision only requires action by the government. Indeed, an action against the federal government under the Clean Air Act's conformity provisions is properly brought under the Administrative Procedures Act which explicitly requires an "agency action." 5 U.S.C. § 706; Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir. 2003), cert. denied 542 U.S. ___, 124 S. Ct. 2873 (2004) (citing Public Citizen v. DOT, 316 F.3d 1002, 1021 (9th Cir. 2003), reversed on other grounds DOT v. Public Citizen, 541 U.S. 752, 124 S. Ct. 2204 (2004) ("Review of agency action to determine its conformity with [other CAA provisions] is governed by the judicial review provisions of the [APA].")). Thus, because only the Federal Defendants could be liable under Plaintiff's NEPA and Clean Air Act claims, the Court lacks an independent basis of jurisdiction and the instant motions should be denied.

  The Northwest Ecosystem Alliance court also explained the unique circumstances justifying the Ninth Circuit's exercise of jurisdiction over the defendant/intervenor's appeal in Kootenai — circumstances that do not exist in the instant case. Northwest Ecosystem Alliance, slip op. at 6-7. The facts of Kootenai supported intervention because it was clear that the government had "declined to defend fully from the outset." Kootenai, 313 F.3d at 1111; see Northwest Ecosystem Alliance, slip op. at 7. In particular, the government defendants in Kootenai had chosen not to appeal a district court's decision to enjoin implementation of one of their regulations. Kootenai, 313 F.3d at 1106-07. The Northwest Ecosystem Alliance court found this factor to be significant in declining to grant permissive intervention. Northwest Ecosystem Alliance, slip op. at 7.

  Like the government defendants in Northwest Ecosystem Alliance, and unlike the government defendants in Kootenai, the Federal Defendants here have given every indication that they intend to vigorously defend the merits of Plaintiff's NEPA and Clean Air Act claims, and permissive intervention is thus inappropriate. See Northwest Ecosystem Alliance slip op. at 6-7 (denying permissive intervention during the merits phase in part because the government did not indicate that it would not fully defend the regulations being challenged). For these reasons, Movants' motions should be denied.

  III. Movants are Not Entitled to Intervention as of Right on the Merits of Plaintiff's Clean Air Act Claim

  A. Legal Standard

  Rule 24(a) provides for intervention as of right where the protection of an applicant's interest may be impaired or impeded if the lawsuit proceeds without him. The Ninth Circuit applies a four-part test under Rule 24(a) to determine whether intervention as of right is appropriate:

(1) the motion must be timely; (2) the applicant must assert a "significantly protectable" interest relating to property or a transaction that is the subject matter of litigation; (3) the applicant must be situated so that disposition of action may as a practical matter impair or impede the interest; and (4) the applicant's interest must be inadequately represented by the parties.
Kootenai, 313 F.3d at 1107-08.

  B. Movants Do Not Have a "Significant Protectable Interest" in the Disposition of the Merits of Plaintiff's Clean Air Act Claim

  Because "the federal government is the only proper defendant in an action to compel compliance with" a statute that requires action only by the government, private parties do not have a "significant protectable interest" in actions seeking government compliance with such statutes. See, e.g., Kootenai, 313 F.3d at 1108. Plaintiff's Clean Air Act claim is brought under the statute's conformity provision, 42 U.S.C. § 7506(c)(1), which provides:

No department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan. . . . The assurance of conformity to such an implementation plan shall be an affirmative responsibility of the head of such department, agency, or instrumentality.
This provision only requires action by the government. Because Movants could not be a proper defendant in an action to compel compliance with the Clean Air Act's conformity provisions, they lack a "significant protectable interest" in Plaintiff's Clean Air Act claim and do not have a right to intervene in the merits of that claim under Rule 24(a). See, e.g., Kootenai, 313 F.3d at 1108. Rather, Movants' only legally protectable interest, if any, is in the remedial phase of Plaintiff's Clean Air Act claim. This is the favored approach in the Ninth Circuit. See Forest Conservation Council v. United States Forest Service, 66 F.3d 1489, 1496 (9th Cir. 1995) (granting intervention as of right limited to question of injunctive relief); see also id. at 1495-96 (citing overwhelming authority that private parties have legally protectable interests in remedial but not merits phases of environmental litigation). This approach is also consistent with Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 1993), in which the court determined that intervention was appropriate on the issue of whether to grant injunctive relief to modify a municipal water pollution permit. Id.

  C. Even if Movants Had a Significant Protectable Interest in the Merits of Plaintiff's Clean Air Act Claim, that Interest Is Adequately Represented by the Federal Defendants

  As just discussed, Movants cannot have a legally protectable interest in the question of whether the Federal Defendants are obligated to conduct a conformity determination pursuant to 42 U.S.C. § 7506(c)(1). Even assuming they did, however, there is no indication that the Federal Defendants will not adequately represent Movants' interest as to the merits of the Plaintiff's claim. The Federal Defendants vigorously defended the claims raised in Plaintiff's original complaint, and nothing suggests they will behave any differently now. Indeed, "a presumption of adequate representation generally arises when the representative is a governmental body or officer charged by law with representing the interests of the absentee." See Forest Conservation Council, 66 F.3d at 1499.

  Perhaps for these reasons, the concerns identified by Movants go only to the question of remedies. T-US is concerned about whether the Federal Defendants can "be expected to safeguard T-US's private legally protectable interests and property rights in the continued operation and use of its plant." T-US Brief at 9. Similarly, BCP is concerned that the Federal Defendants may not have a "particular stake in preserving BCP's approvals and/or protecting BCP's commercial or contractual interests, . . . [and may not make] certain arguments in defense of the permits." BCP Brief at 7. These concerns may justify Movants' intervention in the remedial phase of Plaintiff's First Amended Complaint (which Plaintiff does not oppose), but they do not meet the test as to the merits phase. This Court has already found as much. See July 26, 2002, Order at 5 ("the Court finds that [BCP's] interest in the remedy for the federal defendants' alleged . . . violation would not be adequately represented by the federal defendants. . . . [However,] there may be a `presumption of adequate representation' by the federal defendants arising from their `charge ? . . . [t]o represent? the interests of the absentee' in the merits phase of this case" (emphasis in original)). Because Movants' interests as to the merits of Plaintiffs' Clean Air Act claim will be adequately represented by the Federal Defendants, they are not entitled to intervention as of right on the merits of that claim.

  For all of these reasons, this Court should deny Movants' motions for intervention in the merits phase and only grant them intervenor status in the remedial phase.

  EXHIBIT TABLE OF CONTENTS

 TAB PAGE

 

A True and correct copy of: Order Granting in Part and Denying A1-A7 In Part Proposed Defendant-Intervenors' Motion to Intervene
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
NORTHWEST ECOSYSTEM ALLIANCE, et | al., | | Plaintiffs, | No. 04-844P | v. | ORDER GRANTING IN PART AND | DENYING IN PART PROPOSED MARK E. REY, et al., | DEFENDANT-INTERVENORS' | MOTION TO INTERVENE | Defendants. |

  This matter comes before the Court on proposed Defendant-Intervenors' motion to intervene (DKT. No. 20). Proposed Defendant-Intervenors argue that they should be allowed to intervene permissively in all three claims of the underlying suit. Plaintiffs oppose, arguing that proposed Defendant-Intervenors cannot intervene in the liability phase of the lawsuit. Having considered all relevant materials, and having heard oral arguments from the parties on October 14, 2004, the Court hereby GRANTS in part and DENIES in part the motion to intervene. Proposed Defendant-Intervenors may intervene, but such intervention is limited to the remedial phase of the suit.

  BACKGROUND

  In April 2004, Plaintiffs Northwest Ecosystem Alliance and ten other environmental non-profits (collectively "Ecosystem Alliance"), filed suit against various federal agencies alleging violations of three environmental statutes as well as the Administrative Procedures Act ("APA"). Plaintiffs argue that the government Defendants violated the National Environmental Policy Act ("NEPA") in issuing the 2004 Final Supplemental Environment Impact Statement ("FSEIS"). The FSEIS considers alternatives to the Survey and Manage, which was adopted as part of the Northwest Forest Plan. Plaintiffs likewise allege that the government Defendants violated the National Forest Management Act ("NFMA") and the Federal Land Policy and Management Act ("FLPMA") by issuing the 2004 Record of Decision for Amendments to the Survey and Manage, Protection Buffer, and other Mitigation Measures Standards and Guidelines to the Northwest Forest Plan (collectively "2004 ROD"). The 2004 ROD determined whether the government would adopt the new alternative presented in the 2004 FSEIS.

  In August, 2004, American Forest Resource Council ("AFRC") and Douglas Timber Operations ("DTO"), moved to intervene as defendants pursuant to Fed.R.Civ.P. 24. AFRC represents private landowners and federal timber purchasers through out the U.S., while DTO represents private landowners and federal timber purchasers in Southwest Oregon, an area where the challenged Survey and Manage Standards of the Northwest Forest Plan apply. While Plaintiffs oppose the motion to intervene, the government Defendants have been silent on the issue.

  ANALYSIS

  I. Intervention by Right

  Under Federal Civil Procedure Rule 24(a), a party may intervene by right when: (1) the motion is timely; (2) the applicant asserts a "significant protectable interest" relating to a property or transaction that is the subject matter of the litigation; (3) the applicant is so situated that without intervention the disposition may, as a practical matter, impair or impede its ability to protect that interest; and, (4) the applicant's interest is not adequately represented by the existing parties. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1107-08 (9th Cir. 2002). Here, proposed Defendant-Intervenors have not shown a significant protectable interest.

  To show a significant protectable interest, an applicant must: (1) assert a direct interest protected under some law; and (2) show that there is a relationship between its legally protected interest and plaintiff's claims. Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998) (citing Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 837 (9th Cir. 1996)). To demonstrate protectable interest, an applicant needs to show a tangible connection to real or personal property, contracts, or permits implicated by the litigation; general economic interest is not enough. Forest Conservation Council et al. v. U.S. Forest Service et al., 66 F.3d 1489 (9th Cir. 1995) (holding that because the loggers lacked a cognizable, legally protectable interest in the form of an existing legal right, contract, or permit relating to future timber sales, they could not intervene under Rule 24(a)(2)). The Ninth Circuit has found a protectable interest when, for instance, public interest groups are directly involved in the enactment of the law or the administrative proceedings out of which the litigation arose. See Northwest Forest Resource Council, 82 F.3d at 837; Sagebrush Rebellion v. Watt, 713 F.2d 525 (9th Cir. 1983). The relationship requirement of the test is satisfied if the resolution of the plaintiff's claims or request for relief actually affect the applicant. Donnelly, 159 F.3d at 410 (citing Montana v. United States Envtl. Protection Agency, 137 F.3d 1135, 1141-42 (9th Cir. 1998).

  Proposed Defendant-Intervenors failed to present sufficient evidence in their briefs or during oral arguments that they had significant protectable interests, as required for intervention by right. Proposed Defendant-Intervenors did not provide this Court with any tangible contracts that would be implicated by this suit, nor did they show how their 2001 settlement agreement from a related lawsuit was implicated. At oral argument, they indicated that this settlement agreement has concluded. They further indicated that they believed permissive intervention would be the appropriate means of intervention in this instance, essentially abandoning their request for intervention by right.

  II. Permissive Intervention

  Rule 24(b)(2) allows a court to grant intervention permissively on the following conditions: (1) the motion to intervene is timely, (2) there is a common question of fact or law between the main action and proposed intervenors claim or defense, and (3) there is an independent ground for jurisdiction. Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998).

  A. Timeliness

  In determining whether a motion to intervene is timely, the court considers three factors: (1) the state of the proceeding; (2) any prejudice to the other parties; and (3) the reason for and length of any delay. Orange County v. Air California, 799 F.2d 535, 537 (9th Cir. 1986). Even if the motion is made several months after the initial complaint, if motion is not prejudicial, then the motion is not untimely. See Nikon Corporation v. ASM Lithography B.V, 222 F.R.D 647, 649-50 n. 5 (N.D. Cal. 2004) (holding that defendant-intervenors motion to intervene was timely, despite the fact that they waited a number of months before bringing the motion).

  Plaintiffs filed the original complaint in April, 2004, an amended complaint in May, 2004, and a second amended complaint in October, 2004. While summary judgment briefing has just begun, no substantive proceedings have occurred thus far. Because nothing substantive has occurred, the original parties will not be unduly prejudiced if intervention is granted. Although proposed Defendant-Intervenors have not provided a reason why they delayed in filing for intervention, this Court finds that the motion to intervene is timely.

  B. Common question of fact or law

  To intervene permissively, applicants must have a claim or defense that presents a common question of law or fact with the underlying suit. In Kootenai, the Ninth Circuit allowed a non-governmental party to intervene permissively under Rule 24(b)(2) on a NEPA claim. 313 F.3d 1094. In its analysis, the court found a common question of law because the intervenors asserted interests as well as defenses that were directly responsive to the plaintiffs' challenges. Id. at 1110. The Ninth Circuit also accepted that the parties had a common question of fact because they asserted an interest in the use of the land benefitted by the challenged rule. Id. at 1110-11.

  In the present case, proposed Defendant-Intervenors would likely present defenses that share common questions of law and fact with the issues of the underlying case, which include defenses in support of the contested 2004 ROD and the 2004 FSEIS. Likewise, they also argue an indirect interest by claiming that the challenged guidelines, and any timber sales based on those guidelines, help reduce fire hazard and improve forest health not only on the federal lands, but also on the adjacent private lands held by their members. This Court finds that proposed Defendant-Intervenors do have share a common question of fact and law with the underlying suit.

  C. Independent Jurisdiction

  Proposed Defendant-Intervenors must demonstrate an independent basis for federal subject matter jurisdiction before intervening permissively. In the case at bar, proposed Defendant-Intervenors seek to intervene as defendants under the NEPA, NFMA, and FLPMA claims. However, only the federal government can be held liable under NEPA and NFMA. Forest Conservation Council v. Glickman, 82 F.3d 825, 1499 n. 11 (9th Cir. 1995) (holding that because private entities could not be held liable under NEPA and NFMA, intervention was limited to the remedial phase of the proceedings). The Ninth Circuit has explained "because NEPA requires action only by the government, only the government can be liable under NEPA. A private party cannot `comply' with NEPA, and therefore, a private party cannot be a defendant in a NEPA compliance action." Churchill County v. Babbitt, 150 F.3d 1072, 1082 (9th Cir. 1998).

  The same reasoning applies to FLPMA, in that only the federal government can be liable for having violated FLPMA on the grounds that Plaintiffs allege. FLPMA is a statute that regulates federal government behavior. Indeed, the FLPMA statute only refers to the government's obligations, giving the Bureau of Land Management powers to set up standards and regulations in the management of the federal lands. 43 U.S.C. § 1701-1705; 1711-1722; 1731-1733. Moreover, in Lujan v. National Wildlife Federation, the Supreme Court held that before an action can be brought against the federal government under FLPMA, there needs to be an "agency action." 497 U.S. 871, 882 (1990). This implies that, because a FLPMA claim can only be brought if the federal government violates the statute, only the federal government can be held liable under FLPMA. The trend in the Ninth Circuit has been to reject permissive intervention during the liability phase of the suit if defendant-intervenors cannot show a independent basis for jurisdiction. In League of Wilderness Defenders v. Forsgren, the district court denied permissive intervention in the liability phase because defendant-intervenors could not show an independent basis for jurisdiction, as "only the Forest Service can be held liable under NEPA." 184 F. Supp. 2d 1058, 1060-61 (D. Or. 2002) (denying intervention as defendants to a timber company during the liability phase of the suit); See also Northwest Forest Resource Council, 82 F.3d at 839 (holding that the environmental group had not asserted independent basis for jurisdiction under the 1995 Rescissions Act because it only contained a mandate to federal agency secretaries, not private parties).

  Proposed Defendant-Intervenors rely on Kootenai, in which the Ninth Circuit granted a non-governmental group permissive intervention for both the liability and remedial phase under a NEPA claim. 313 F.3d at 1111. The Ninth Circuit's analysis of independent jurisdiction focused on whether the environmental group had standing to appeal as a defendant-intervenor in light of the fact that the government defendant had chosen not to appeal. Id. at 1109. In determining standing, the Ninth Circuit found that the defendant-intervenor had suffered an injury or invasion of its legally protected interest because members of the group benefited from the regulation that was struck down. Id. Proposed Defendant-Intervenors argue that the Ninth Circuit's grant of permissive intervention under a NEPA claim should rule here as well. They point to the Ninth Circuit's agreement with the district court that intervention was proper because the "magnitude of this case is such that . . . Applicant's intervention will contribute to the equitable resolution . . ." Id. at 1112. In contrast, Plaintiffs argue that the Ninth Circuit in Kootenai only granted intervention during the liability phase because the government defendants in that case had made it clear that they would not fully defend the regulations in question. Plaintiffs contend that this case is different because there is every indication that the government Defendants will vigorously defend the challenged regulations, and therefore permissive intervention during the liability phase of the suit should be denied.

  This Court finds that proposed Defendant-Intervenors do not have an independent basis for jurisdiction to intervene in the liability phase of the suit. As only the federal government can be required to comply with and be held liable under NEPA, NFMA, and FLPMA, proposed Defendant-Intervenors have not provided an independent basis for jurisdiction to intervene in the liability phase of the suit. Although the Ninth Circuit in Kootenai allowed the non-governmental environmental group to intervene permissively during the liability phase of the suit, the case at bar is different. In Kootenai, not only had the litigation continued for a year, with several other suits being consolidated, but the government defendants had refused to fully defend the regulation. This case has not been consolidated with any other cases, nor has the government indicated that it will not fully defend the regulations being challenged. Proposed Defendant-Intervenors have also not provided evidence that without their intervention there would not be an equitable solution to the suit, nor have they provided a independent basis for jurisdiction. Therefore, this Court finds that proposed Defendant-Intervenors cannot permissively intervene in the liability phase of the proceedings. However, as in Forest Conservation Council, proposed Defendant-Intervenors may intervene in the remedial phase of the suit.

  CONCLUSION

  The Court DENIES intervention by right because proposed Defendant-Intervenors have not proven that they have a "significant protectable interest" to justify intervening as defendants. Alternatively, this Court DENIES proposed Defendant-Intervenors permissive intervention in the liability phase of the suit for the NEPA, NFMA, and FLPMA claims. However, the Court GRANTS proposed Defendant-Intervenors permissive intervention in the remedial phase of the suit in working to define the scope of any injunction.

  The clerk is directed to provide copies of this order to all counsel of record.

  Dated: October 27, 2004

 

/s/ Marsha J. Pechman ________________________ Marsha J. Pechman United States District Judge
20050916

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