United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTION AT DOCKET 6]
JOHN
W. SEDWICK SENIOR JUDGE.
I.
MOTION PRESENTED
The
State of Alaska (“State”) filed suit in January
2017 to challenge federal regulations, promulgated by the
National Park Service (“NPS”) and the United
States Fish and Wildlife Service (“FWS”),
governing sport hunting of predators within Alaska's
National Preserves and National Wildlife Refuges. A month
later, at docket 6, a group of fifteen conservation
organizations (“Applicants”) filed a motion to
intervene as defendants. The State filed an opposition at
docket 46. The named defendants representing the federal
government (“Federal Defendants”) did not file a
response. Applicants filed their reply at docket 49. Oral
argument was not requested and would not assist the court.
II.
BACKGROUND
The
lawsuit at issue here involves the application of the
State's intensive predator management program, which
liberalizes hunting regulations for predator species such as
wolves and bears in part to improve the levels of prey
species for human harvest, on federal lands. The history of
the State's predator management program and the
State's attempt to implement the program on federal lands
has been thoroughly set forth in the Applicants'
memorandum at docket 7 and need not be repeated here. For
purposes of this order, it suffices to say that a state's
hunting regulations apply on federal lands only to the extent
they are compatible with federal mandates. Based on perceived
incompatibilities, the FWS and NPS objected to the
application of the State's regulations that authorized
liberalized hunting practices-such as harvesting brown bears
over bait; taking wolves and coyotes during denning season;
expanding season lengths and increasing bag limits; and
authorizing same-day airborne take of bears at registered
bait stations-within Alaska's National Preserves and
Wildlife Refuges. The two agencies concluded that these
predator-management practices conflict with their mandates to
conserve natural diversity and maintain natural predator-prey
relationships in National Preserves and Wildlife Refuges.
They requested that the State exclude National Preserves and
Wildlife Refuges from the state-authorized practices, but the
State refused. Consequently, the FWS and NPS promulgated
regulations prohibiting such hunting practices within
Alaska's National Preserves and Wildlife Refuges, which
the State now challenges in this lawsuit[1].
The
Applicants seek to intervene by right under Rule 24(a) of the
Federal Rules of Civil Procedure or, alternatively, by
permission under Rule 24(b) in order to defend the federal
regulations. They contend that intervention in the lawsuit
will allow them to “protect their interest in the
wildlife, habitat, and wilderness values of the National
Preserves and National Wildlife Refuges in Alaska from
State-authorized sport hunting methods designed to reduce
predator population and artificially inflate prey
species.”[2]
III.
DISCUSSION
Intervention
by right
Rule
24(a) requires the court to grant intervention to anyone who
(1) submits a timely motion; (2) claims an interest relating
to the property or transaction that is the subject of the
action; (3) is so situated that disposing of the action may,
as a practical matter, impair or impede the movant's
ability to protect its interest; and (4) is not adequately
represented by the existing parties.[3] “While an applicant
seeking to intervene has the burden to show that these four
elements are met, the requirements are broadly interpreted in
favor of intervention.”[4] Here, there is no dispute as to
the motion's timeliness: it was filed less than a month
after the State's complaint and before the Federal
Defendants filed an answer. Furthermore, the State does not
challenge the Applicants' argument that they have a
significant protectable interest in the action, namely an
“interest in protecting the natural balance of
predators in National Preserves and Wildlife Refuges, ”
nor does it challenge the Applicants' argument that
disposal of this action could practically impair their
ability to protect that interest. The only issue raised in
the State's opposition is whether the Applicants would be
adequately represented by the Federal Defendants.
In
making a determination about adequacy of representation under
Rule 24(a), the court must consider three factors: “(1)
whether the interest of a present party is such that it will
undoubtedly make all the intervenor's arguments; (2)
whether the present party is capable and wiling to make such
arguments; and (3) whether the would-be intervenor would
offer any necessary elements to the proceedings that other
parties would neglect.”[5] The most important factor to
consider when assessing the adequacy of representation is a
comparison of the existing parties' interests with the
applicant's interests.[6] The burden of showing inadequacy of
representation is “minimal.”[7] That is, the
applicant only needs to show that the existing parties'
representation “may be” inadequate.[8] If, however, the
applicant for intervention and an existing party have the
same “ultimate objective, ” a presumption of
adequacy arises, and the applicant must rebut that
presumption with a compelling showing of inadequate
representation.[9]
The
State's opposition to the Applicants' motion relies
on a presumption of adequacy. It argues that the Applicants
share the same “ultimate objective” as the
Federal Defendants-defending the legality of the challenged
regulations-and therefore a presumption of adequacy exists.
They argue that “the Applicants [must] show that their
interests would not be protected in the event the regulations
are upheld as legally valid, or that the Applicants and
[Federal] Defendants have ‘fundamentally differing
points of view' on the litigation as a
whole.”[10] The State relies on Citizens for
Balanced Use v. Montana Wilderness Ass'n, where the
Ninth Circuit rejected the plaintiff's argument that the
applicant and the federal agency defendant had the same
ultimate objective, concluding that the two had
“fundamentally differing points of view”
regarding the litigation.[11] In that case, the agency
adopted the order at issue only after the applicants had
forced it to do so through previous litigation and was
appealing the decision that forced it to make the
rule.[12] The State also cites County of
Fresno v. Andrus, where the Ninth Circuit concluded that
the federal defendant, the Department of the Interior, did
not adequately represent the interest of the applicants
because it had not appealed the grant of a preliminary
injunction and it only began its rulemaking after the
applicant brought suit against it.[13]
The
Applicants argue that the State has misinterpreted the case
law applying the heightened burden. They argue that the cases
do not stand for the proposition that an applicant and
federal agency share unified objectives simply because they
are taking the same position in the litigation. They argue
that the cases the State relies on are merely examples of
situations where an applicant and a federal defendant have
divergent interests and that the cases do not stand for the
proposition that a federal defendant and an applicant both
seeking to defend regulations share an ultimate objective
unless the federal defendant had taken a contrary position
prior to the litigation or where there was some delay or
reluctance on the part of the defendant in relation to the
regulation at issue. The Applicants argue that the analysis
regarding the presumption of adequacy is broader and more
fact-based, focusing on the existing parties' overall
interests and objectives as compared to the applicant's.
The
court need not decide whether the State misinterpreted what
it means to have the same “ultimate objective.”
Here, the Federal Defendants' ultimate objective is
unknown given that they have not yet filed an answer and did
not file any response to the Applicants' motion to
intervene. Any assumption that the Federal Defendants would
necessarily defend their own regulations is unwarranted here
because there has been an administration change since the
regulations were promulgated and the President recently
signed House Joint Resolution 69, nullifying the challenged
FWS regulations.[14]The new administration's
nullification of the FWS's regulations relating to the
State's predator control program is an action that is
detrimental to the Applicants' interests and shows that
even if the Federal Defendants once presumably shared the
same ultimate objective as to the remaining NPS regulations,
it is no longer reasonable to presume as much now. The
Federal Defendants' representation of the Applicants'
interest may be inadequate given these facts.
Moreover,
even if the Federal Defendants plan to defend the remaining
NPS regulations and that alone is sufficient under the case
law to constitute a unity of objectives for the purposes of
applying a presumption of adequacy, the Applicants have made
a compelling showing of inadequate representation to rebut
that presumption and permit intervention. The signing of
House Joint Resolution 69 raises serious doubts about whether
the Federal Defendants will make all the same arguments as
the Applicants and whether they are still willing to make
such arguments. As the Applicants note in their reply,
“[i]t is fair to assume that an administration that is
willing to nullify the challenged FWS regulations with the
stroke of a pen may not vigorously defend similar NPS
regulations in this litigation.”[15] Evidence of
the Federal Defendants' multi-faceted mandates and
obligations as ...