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E&B Natural Resources Management Corp. v. County of Alameda

United States District Court, N.D. California

November 4, 2019

E&B Natural Resources Management Corporation, ET AL., Plaintiffs,
v.
County of Alameda, ET AL., Defendants.

          ORDER DENYING MOTION TO INTERVENE RE: DKT. NO. 41

          YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE

         Plaintiffs E&B Natural Resources Management Corporation (“E&B”); Laurie Volm; Sharyl G. Bloom and Richard S. Bloom, co-trustees of The Lynn Bloom Trust; James C. Roth; Dolores D. Michaelson; and Michael Karpé initiated this action against defendants County of Alameda and Alameda County Board of Supervisors (the “Board”) (collectively, the “County”) seeking to overturn the Board's July 24, 2018 decision not to renew two conditional use permits (“CUPs”) which defendants maintain are predicates to E&B's continued operation of an oil extraction and production facility on two parcels of land in Livermore, California.

         Proposed defendant-intervenor, Center for Biological Diversity (“Center”), seeks to intervene as a matter of right and permissively under Federal Rule of Civil Procedure 24. The Center argues it is entitled to intervene because it spearheaded the administrative appeal overturning the conditional approval of the CUPs, and the disposition of this lawsuit threatens those efforts. In addition, the Center seeks to intervene to protect its interests in environmental conservation and the welfare of nearby communities.[1]

         Having carefully considered the papers submitted and the pleadings in this action, and for the reasons set forth below, the Court hereby Denies the motion to intervene.

         I. Background

         The following background is taken from the First Amended Complaint (“FAC”): Since 1966, E&B and its predecessors have possessed a series of CUPs permitting E&B to operate an oil extraction and production facility on two parcels of land in Livermore, California. In May of 2018, the Alameda County Planning Commission, East County Board of Zoning Adjustments conditionally approved E&B's permit renewal applications. The Center, an Alameda County-based public interest group focused on environmental protection and combating climate change, along with the Livermore EcoWatchdogs, appealed the conditional approval to the Board. On September 11, 2018, the Board granted the Center's appeal and denied the CUPs renewals, citing lack of public need, land use conflicts, and environmental concerns.

         Plaintiffs bring this action seeking to overturn the Board's decision to deny the two CUPs for oil and gas extraction in Alameda County on the grounds that the Board's decision was “arbitrary and capricious, ” and that the Board acted “in excess of its jurisdiction” by divesting E&B of its vested rights to use the parcels. Plaintiffs assert that the decision violated plaintiffs' due process rights and the Board's own procedural standards because the Board denied the CUPs due solely to political pressure and not legitimate regulatory concerns.

         II. Legal Standard

         Intervention is a procedure by which a nonparty can gain party status without the consent of the original parties. United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 933 (2009) (“intervention is the requisite method for a nonparty to become a party to a lawsuit”). Rule 24 contemplates two types of intervention: intervention of right and permissive intervention. Intervention exists as a matter of right when a federal statute confers the right to intervene or the applicant has a legally protected interest that may be impaired by disposition of the pending action and that interest is not adequately represented by existing parties. Fed.R.Civ.P. 24(a). Permissive intervention may be allowed at a court's discretion when a federal statute confers a conditional right to intervene, or the applicant's claim or defense and the main action share a common question of law or fact. Fed.R.Civ.P. 24(b).

         III. Analysis

         A. Intervention as of Right - Rule 24(a)

         Courts in the Ninth Circuit apply a four-part test to determine whether intervention should be granted as a matter of right, namely the applicant must (1) assert a “significantly protectable” interest relating to the property or transaction that is the subject of the action; (2) show that disposition of the action without intervention may as a practical matter impair or impede its ability to protect that interest; (3) be inadequately represented by the parties to the action; and (4) file a timely application. Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998); Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050, 1061 (9th Cir. 1997). The applicant bears the burden of establishing all four elements, and the rule is construed “broadly in favor of intervention.” Donnelly, 159 F.3d at 409. Failure to satisfy any one of the requirements is fatal to the application, and a court need not reach the remaining elements if one of the elements is not satisfied. Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009).

         The Court addresses each element in turn.

         1. Significantly Protectable Interest

         To determine if an applicant has a “significantly protectable” interest relating to the property or transaction that is the subject of the action, the Court must consider whether: (1) the asserted interest is protectable under some law, and (2) a relationship exists between the legally protected interest and the claims at issue. Wilderness Soc. v. U.S. Forest Service, 630 F.3d 1173, 1179 (9th Cir. 2011). A would-be intervenor has a sufficient interest for intervention purposes if it demonstrates that “it will suffer a practical impairment of its interests as a result of the pending litigation.” California ex rel. Lockyer v. United States, 450 F.3d 436, 441 (9th Cir. 2006). “Although the intervenor cannot rely on an interest that is wholly remote and speculative, the intervention may be based on an interest that is contingent upon the outcome of the litigation.” City of Emeryville v. Robinson, 621 F.3d 1251, 1259 (9th Cir. 2010) (quoting United States v. Union Elec. Co., 64 F.3d 1152, 1162 (8th Cir. 1995)). In the environmental law context, there are two factors that weigh in favor of finding that a “significantly protectable” interest exists: the group has an interest in seeing a wilderness area preserved for the use and enjoyment of its members, or actively participates in the administrative process leading to the litigation. See e.g. Wilderness Soc., 630 F.3d at 1180; Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893, 897-98 (9th Cir. 2011); Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 526-28 (9th Cir. 1983).

         At oral argument, plaintiffs conceded that the Center has a significantly protectable interest in the outcome of this action. The Court agrees. The Center is an Alameda County-based public interest group focused on protecting the environment and combating climate change. It spearheaded the administrative appeal that lead to the Board's denials of the CUPs, which ultimately led to this litigation, and it asserts an interest in seeing the Board's decision-to which it purportedly dedicated significant organizational resources-upheld. In addition, the Center claims an interest in advancing its organizational mission of protecting the environment and combating climate change. Further, the Center purports to have an interest in mitigating potential adverse effects on its local members caused by continued oil extraction and production in Alameda County. Should plaintiffs succeed in their suit against defendants, the Center's asserted interests would “suffer a practical impairment.” See Lockyer, 450 F.3d at 441. Such factors demonstrate the Center's “significantly protectable” interests in the subject of this action. See Wilderness Soc., 630 F.3d at 1180; Citizens for Balanced Use, 647 F.3d at 897-98; Sagebrush Rebellion, 713 F.2d at 526-28.

         2. Effect on Proposed Intervenor's Ability to Protect Its Interests

         In terms of whether disposition of the action without intervention would impair or impede the intervenor's ability to protect its interests, courts consider if “an absentee would be substantially affected in a practical sense by the determination made in an action.” Southwest Ctr. for Biological Diversity, 268 ...


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