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BORDER POWER PLANT WORKING GROUP v. DEPARTMENT OF ENERGY

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 ...


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