United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTIONS TO INTERVENE AT
DOCKETS 19, 29 AND 54; AND MODIFIED BRIEFING SCHEDULE FOR THE
MOTION AT DOCKET 62]
JOHN
W. SEDWICK SENIOR JUDGE
I.
MOTIONS PRESENTED
At
docket 19, Pacific Legal Foundation, Alaska Outdoor Council,
Big Game Forever, Kurt Whitehead, and Joe Letarte
(collectively “PLF”) move to intervene in this
action pursuant to Rule 24 of the Federal Rules of Civil
Procedure. At docket 29, Safari Club International and the
National Rifle Association (collectively
“Safari”) move to intervene pursuant to Rule 24.
At docket 54 the State of Alaska (“State”) moves
to intervene pursuant to Rule 24. Plaintiff Center for
Biological Diversity (“Plaintiff”) responds to
all three motions at docket 71. Defendants Ryan Zinke and the
United States Department of the Interior (collectively
“Interior”) respond to the three motions at
docket 72. PLF replies at docket 77; Safari replies at docket
78; and State replies at docket 79. The motions are
thoroughly briefed. Oral argument would not be of assistance
to the court.
II.
BACKGROUND
At the
heart of this lawsuit is a federal law commonly called the
Congressional Review Act (“CRA”).[1] That law
addresses Congressional oversight of rules adopted by federal
agencies. Pursuant to section 802 of the CRA, [2] Congress may
disapprove rules adopted by federal agencies. In 2016,
Interior adopted a rule that regulates methods by which
predator populations may be controlled within National
Wildlife Refuges in Alaska, [3] which will be referred to as the
Refuges Rule. That rule prohibited several practices that are
regulated and permitted under Alaska law, including the use
of snares, nets, and traps, hunting wolves or coyotes during
their denning season, baiting bears, and using aircraft to
hunt bears. As required by the CRA, Interior submitted a
report addressing the Refuges Rule to Congress. Thereafter,
Congress passed a joint resolution disapproving the Refuges
Rule which was presented to and signed by the President.
Plaintiff
filed this lawsuit challenging the constitutionality of the
CRA. Plaintiff also contends that the joint resolution
disapproving the Refuges Rule is invalid because Congress did
not comply with the CRA when it disapproved the Refuges Rule.
Like Interior, those seeking to intervene contend that the
CRA is constitutional and that the resolution disapproving
the Refuges Rule is valid.
III.
DISCUSSION
Rule
24(a)(2) requires the court to allow a party to intervene
when the party “claims an interest relating to the . .
. subject of the action, and is so situated that disposing of
the action may as a practical matter impair or impede the
movant's ability to protect its interest, unless existing
parties adequately represent that interest.” Thus,
judicial decisions have held that a party asking to intervene
under Rule 24(a)(2) must: (1) make a timely application to
intervene; (2) possess a significant interest relating to the
subject of the litigation; (3) be situated such that its
interest may be impaired or impeded by disposition of the
litigation; and (4) have an interest that is not adequately
represented by an existing party.[4] In the Ninth Circuit, Rule
24(a)(2) is construed “broadly in favor of
interveners.”[5] The Ninth Circuit has explained that such
broad construction provides an efficient disposition of
issues and broader access to courts.[6]
Plaintiff
does not oppose intervention by any of the prospective
interveners, although it argues that PLF should be allowed to
intervene permissively pursuant to Rule 24(b) rather than as
of right pursuant to Rule 24(a). When a timely application is
made pursuant to Rule 24(b), the rule permits the court to
allow intervention by anyone who “has a claim or
defense that shares with the main action a common question of
law or fact.” The principal difference between the two
forms of intervention is that where the requirements of Rule
24(a) are met, the court must allow intervention while the
court has discretion to allow or deny intervention sought
pursuant to Rule 24(b).[7] Plaintiff also asks that the court
impose some limits on the proposed intervener defendants'
participation in the lawsuit.[8] Ironically, Interior is the party
opposing intervention.
Interior
focuses on one of the four pertinent factors: “Because
any interest of the putative Intervener-Defendants will be
adequately represented by the federal government in this
case, each of the motions for intervention should be
denied.”[9]Interior does drop a footnote indicating
that it does not concede the other three requirements are
met, but declines to address them because the motions to
intervene should be denied on the basis of adequate
representation.[10] Given Interior's failure to present
any argument that any of the first three requirements are not
met, coupled with Plaintiff's tacit assessment that all
three prospective interveners meet them, it is not necessary
to consider any prerequisite to intervention save the
adequacy of representation.
When
evaluating Interior's argument the court must first take
note of the Ninth Circuit's policy construing Rule
24(a)(2) broadly in favor of intervention. Next, it is
important to focus on the fact that the test is not whether
an intervener's interest actually will be impaired or
impeded if intervention is denied. Rule 24(a)(2) says the
issue is whether that interest “may be” impaired
or impeded. Thus, the Ninth Circuit has said that the burden
to show inadequate representation by an existing party is
“minimal.”[11] Cutting the other way, the Ninth
Circuit has also said that where the government acts on
behalf of a constituency that it represents there is an
assumption of adequacy which must be rebutted by a compelling
showing.[12] Here, however, it is impossible to
assume that Interior, which is charged by law with managing
public lands on behalf of the entire polity, is instead
representing the special and much more focused interests of
the prospective interveners. The arguments and authorities
advanced by all three prospective interveners are extremely
persuasive with respect to the adequacy of representation
issue. Relying thereon, as well as the preceding discussion
in this order, the court will grant the motions to intervene.
Plaintiff
argues that PLF lacks a sufficient interest to intervene as a
matter of right because “its interest is solely related
to the implementation of the [CRA], and furtherance of its
institutional mission to encourage Congress to roll back
federal agency regulations.”[13] From Plaintiff's
perspective that is not enough, because PLF “puts
forward no interest specific to the Refuges Rule or the
potential results of its revocation.”[14] PLF responds
that it is a public interest group and that its special
interest in the CRA is sufficient to support intervention as
of right. Both Plaintiff and PLF cite to the Ninth Circuit
decision in Idaho Farm Bureau Federation v.
Babbitt.[15] There, the Ninth Circuit held that
“a public interest group is entitled as a matter of
right to intervene in an action challenging the legality of a
measure it has supported.”[16] Plaintiff does not
contend that PLF is not a public interest group; this lawsuit
challenges the constitutionality of the CRA, and PLF supports
use of the CRA. Intervention under Rule 24(a) is appropriate.
Next,
it is necessary to address Plaintiff's request that
“the Court appropriately limit interveners'
participation to insure that they do not complicate or delay
the resolution of this matter.”[17] Plaintiff
asks the court to impose three specific restrictions: (1)
joint briefing by the three intervener defendants as opposed
to separate briefing by each; (2) coordination by the
intervener defendants with Interior to avoid duplicative
arguments; and (3) compliance by the intervener defendants
with any case management or briefing schedule set by the
court. The court declines to impose the joint briefing
requirement because it might prevent the court from gaining a
full understanding of the issues raised in the litigation.
The court will require interveners to coordinate not only
with Interior, but with each other to avoid duplicative
arguments.
Finally,
all parties will be required to comply with any briefing
schedule or case ...