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Center for Biological Diversity v. Jewell

United States District Court, Ninth Circuit

August 9, 2013

SALLY JEWELL, Secretary of the Department of the Interior, and THE BUREAU OF LAND MANAGEMENT, Defendants.


PAUL S. GREWAL, Magistrate Judge.

In this National Environmental Protection Act ("NEPA") action, Plaintiffs Center for Biological Diversity and Sierra Club ("Plaintiffs") challenge Defendants Interior Secretary Sally Jewell ("Jewell") and Bureau of Land Management's ("BLM") decision to lease 17, 832 acres of federal oil and gas estate in in Monterey, San Benito, and Fresno counties without properly assessing the effect on the environment. Nonparty American Petroleum Institute ("API") now moves to intervene in the suit. Plaintiffs oppose. Having considered the papers and the arguments of counsel, the court DENIES the motion to intervene.



Plaintiffs sued BLM and former Interior Secretary Ken Salazar in a related suit before the undersigned, Center for Biological Diversity v. Bureau of Land Management (" CBD I ").[1] In that suit, Plaintiffs targeted the September 14, 2011 sale of four oil and gas leases totaling approximately 2, 700 acres located in Monterey and Fresno counties.[2] Plaintiffs alleged that the lease sale was an agency action "significantly impacting the quality of the human environment" requiring preparation of an Environmental Impact Statement ("EIS") under NEPA, [3] which BLM failed to do because it improperly ignored the potential effects of hydraulic fracturing ("fracking") of the Monterey shale formation. The undersigned ruled at summary judgment that, with respect to the non-NSO leases, or leases without "No Surface Occupancy" restrictions, BLM failed to take a "hard look" at the potential impact of fracking and generated an EIS.[4] The undersigned further ordered the parties to submit briefing on a potential remedy for BLM's violation.[5] The remedy hearing date, originally set concurrently to this motion's hearing date, was vacated after the parties indicated they were working towards a settlement.[6]


Following the court's summary judgment order in CBD I, Plaintiffs filed the present suit against BLM and Jewell, alleging largely the same legal theories but this time targeting BLM's December 12, 2012 oil and gas lease sale covering approximately 17, 832 acres of federal land in Monterey, San Benito, and Fresno counties.[7] The undersigned granted Plaintiffs' motion to relate this case to CBD I. [8] No dispositive motions have yet been filed in this case, and the parties have indicated that they are engaged in settlement negotiations along with the first case.[9]

C. American Petroleum Institute

API is a national trade association committed to promoting the economic and legal rights of the American oil and natural gas industry, including representation of the industry in legal proceedings.[10] API represents over 500 corporate members, including oil and natural gas producers, refiners, marketers, pipeline operators, marine transporters, and service and supply companies.[11]

Vintage Production California, LLC ("Vintage"), a subsidiary of API member Occidental Petroleum, was the winning bidder for three of the leases in the December 12, 2012 sale.[12] Additionally, API members have a strong interest in fracking the Monterey shale formation and other impermeable formations in the U.S., such as the Niobrara and Bakken formations.[13] API alleges many of its members have already invested significant resources in developing oil resources, both in the Monterey shale and elsewhere.[14]


Intervention is the mechanism for a nonparty to join the litigation as a party without consent of the original parties.[15] Fed.R.Civ.P. 24 provides for both intervention as of right as well as intervention with the permission of the court.

A party may intervene as of right if it demonstrates, upon timely motion, that its rights would be injured if the action were to proceed without it.[16] The Ninth Circuit separates the Rule 24(a) inquiry into four different requirements: (1) the motion must be timely; (2) the movant must claim a "significantly protectable" interest relating to the property or transaction which is the subject of the action; (3) the movant must be situated such that disposition of the action may as a practical matter impair or impede the movant's ability to protect that interest; and (4) the movant's interest must not be adequately represented by the current parties to the litigation.[17]

The Ninth Circuit recently abrogated the "federal defendant rule, " which categorically prevented any party other than the federal government from intervening as of right at the merits stage of NEPA litigation.[18] In considering whether a private party or state or local government may intervene as of right, the district court should instead apply the traditional Rule 24 test, taking into account the "practical and equitable considerations and constru[ing] the Rule broadly in favor of proposed intervenors."[19] Nevertheless, the movant bears the ...

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