FILED

UNITED STATES DISTRICT COURT

FoR THE DISTRICT oF CoLUMB1A JUN 1 0 2014
C|erk, U.S. District & Banlcruptcy
Courts mr me District of columbia

SOLENEX LLC, )
)

Plaintiff, )

)

v. ) Civil Case No. 13-0993 (RJL)

)

SALLY JEWELL et al., )
)

Defendants. )

)

m
MEMORANDUM ORDER
June Q, 2014 [# 91

Plaintiff Solenex LLC, the holder of a federal oil and gas lease in Montana, brings
suit against the Secretary of the Interior, the Secretary of Agriculture, the Director of the
Bureau of Land Management ("BLM"), the Chief of the Forest Service, and several other
subordinate federal officials (collectively, "fcderal defendants") relating to the
government’s suspension of all oil and gas drilling and extraction activity on that lease.
See Compl. [Dkt. # l] 1111 3-1 l, 16-25. Plaintiff seeks declaratory and injunctive relief
including lifting of the suspension, for federal defendants’ alleged violations of the
Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., by (l) unlawfully
withholding or unreasonably delaying agency action, and (2) failing to complete
administrative action. See Co1npl. 1111 26-44. Before this Court is the Motion of Blackfeet
Headwatcrs Alliance, Glacier-Two Medicine Alliance, Montana Wilderness Association,

National Parks Conservation Association, and The Wilderness Society to Intervene as

Defendants [Dkt. # 91 and their Memorandum of Points and Authorities in Support
("Proposed Intervenors’ Mem.") [Dkt. # 9-l]. The proposed intervenors_five non-profit
organizations "dedicated to the conservation of the natural and/or cultural environment,"
Proposed Intervenors’ Mem. at 7_move to intervene as of right under F ederal Rule of
Civil Procedure 24(a) or, alternatively, for permissive intervention under Rule 24(b).
Plaintiff opposes this motion, see Pl.’s Mem. of P. & A. in Opp’n to Proposed
Intervenors’ Mot. to intervene ("Pl.’s Opp’n") [Dkt. # l6], but federal defendants do not.
For the following reasons, the Court will DENY proposed intervenors’ motion.

Under Rule 24(a), a court must permit a party to intervene as of right if it "claims
an interest relating to the property or transaction that is 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." Fed. R. Civ. P. 24(a)(2). Our Circuit has identified "four prerequisites to
intervene as of right: ‘(l) the application to intervene must be timely; (2) the applicant
must demonstrate a legally protected interest in the action; (3) the action must threaten to
impair that interest; and (4) no party to the action can be an adequate representative of the
applicant’s interests."’ Karsner v. Loz‘hz'an, 532 F.3d 876, 885 (D.C. Cir. 2008) (quoting
SEC v. Prudentz`al Sec. Inc., 136 F.Sd l53, 156 (D.C. Cir. 1998)). Here, proposed
intervenors satisfy the first three requirements. First, their motion is timely because they
filed it early in this litigation-three months after the complaint was filed, just over two
weeks after federal defendants answered, and before any scheduling order was entered.

Second, they have environmental and cultural interests in the lease area stemming from

2

their use of the land. Proposed Intervenors’ Mem. at 2-4, 6-7, ll-l2. And third,
plaintiffs action to lift the suspension and proceed with oil and gas drilling would impair
those interests

But proposed intervenors’ argument for intervention runs aground on the fourth
prong of the test. Although the burden of making the showing that existing parties may
not adequately represent the movant’s interests is "minimal," F uncl for Anirnals, 1nc. v.
Norton, 322 F.3d 728, 735 (D.C. Cir. 2003), proposed intervenors have nonetheless failed
to meet it here because the federal defendants will, in fact, adequately protect proposed
intervenors’ interests. As proposed intervenors themselves point out, the aim of their
advocacy is the very reason the government suspended the lease in the first place (and
issued repeated suspensions): the conservation of natural and cultural resources (or
additional consideration thereol). See Proposed Intervenors’ Mem. at 14 ("it is the Forest
Service’s consideration of these cultural issues via the National Historic Preservation Act
process that underlies the lease suspension at issue in this case"); Proposed Intervenors’
Reply [Dkt. # 171 at 1 ("Solenex’s own complaint and relevant agency documents
establish that the BLM has issued the challenged suspensions to facilitate adequate
consideration of the very cultural and environmental resources that underlie [ proposed
intervenors ’] interest in this case" (emphasis added)); ia’. at 3 ("As stated in the BLM
letter imposing the ongoing suspension of Solenex’s Iease, the underlying justifications
for the suspensions of operations and production on this lease are ‘to provide Congress a
chance to consider legislation to conserve and protect the natural resources of the area’

and to consider ‘a historic property eligible for the National Register of Historic Places’

3

pursuant to ‘Section 106 of the National Historic Preservation Act,"’ and "[t]hese
environmental and cultural justifications represent the very interests that [ proposed
intervenors ] seek[] to protect through intervention in this litigation" (emphasis added));
ia’. at 7 ("The NHPA process, if allowed to be completed, promises to shield [proposed
intervenors’] interest from harm that might be caused by Solenex’s proposed action . . .").
Moreover, proposed intervenors’ self-described purpose in intervening is "to

defend the reasonableness of these suspensions," Proposed Intervenors’ Reply at 4, which
is precisely what the federal defendants are doing in this litigation. See also Proposed
Intervenors’ Reply at lO (proposed intervenors’ "‘interests and objectives in this lawsuit’
. . . [are] affirming the reasonableness of F ederal Defendants’ suspension of Lease M-
53323 in the interest of conservation of natural resources"); Proposed Intervenors’ Mem.
at 16 ("Applicants seek to protect the site from development and, at a minimum, to
ensure that ongoing, legally-mandated agency processes to consider the full extent of
environmental and cultural impacts of such industrial activity are properly completed
before any such development occurs." (emphasis added)); id. at 23-24 ("Applicants seek
to ensure that all required cultural and environmental review processes are complied with
fully before any possible development activity may occur with respect to the Hall Creek
lease, and that Federal Defendants’ fulfillment of those processes is deemed reasonable
under the circumstances."). Thus, in view of the nature of the case-»a lease-holder’s
challenge to an ongoing lease suspension, rather than a challenge to the leasing decision
in the first instance-proposed intervenors’ interests are not, in fact, "narrower" than

those of federal defendants, and therefore federal defendants can more than adequately

4

represent proposed intervenors’ interests. Cf Proposed Intervenors’ Mem. at 17-19.
Accordingly, 1 find that proposed intervenors may not intervene as of right.

For the same reason, l will exercise my discretion to deny them permissive
intervention. See E.E.O.C. v. Nat’l Chila’ren ’s Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir.
199 8) (under Rule 24(b), a court may permit a party to intervene if the putative intervenor
presents "(l) an independent ground for subject matter jurisdiction; (2) a timely motion;
and (3) a claim or defense that has a question of law or fact in common with the main
action"); id. at 1048 (district court has the discretion to deny a motion for permissive
intervention even if the movant has met all three requirements). Accordingly, it is hereby

ORDERED that the Motion of Blackfeet Headwaters Alliance, Glacier-Two
Medicine Alliance, Montana Wilderness Association, National Parks Conservation
Association, and Thc Wildemess Society to Intervene as Defendants [Dkt. # 91 is
DENIED.

SO ORDERED. `

,/,/""`!

l it Zw¢\/
RICHARD J.LL»EoN
United States District Judge

