                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

WILDEARTH GUARDIANS, et al.,                     :
                                                 :
       Plaintiffs,                               :       Civil Action No.:      16-1724 (RC)
                                                 :
       v.                                        :       Re Document Nos.:      30, 37, 39
                                                 :
JEWELL, et al.,                                  :
                                                 :
       Defendants,                               :
                                                 :
WESTERN ENERGY ALLIANCE, et al.,                 :
                                                 :
       Defendant-Intervenors                     :

                                 MEMORANDUM & ORDER

               GRANTING THE STATE OF WYOMING’S MOTION TO INTERVENE;
               GRANTING THE STATE OF COLORADO’S MOTION TO INTERVENE;
                 GRANTING THE STATE OF UTAH’S MOTION TO INTERVENE

                                      I. INTRODUCTION

       Plaintiffs WildEarth Guardians and Physicians for Social Responsibility initiated this

action to challenge the approval of oil and gas leases on public lands in Colorado, Wyoming, and

Utah. Am. Compl. ¶ 1, ECF No. 22. Plaintiffs sued the Secretary of the United States

Department of the Interior, the Director of the United States Bureau of Land Management, and

the United States Bureau of Land Management—collectively, the Federal Defendants. Plaintiffs

allege that the Federal Defendants violated the National Environmental Policy Act (NEPA), 42

U.S.C. §§ 4321–4370h. Am. Compl. ¶ 1. In relief, Plaintiffs seek, inter alia, a declaration that

the “Federal Defendants’ leasing authorizations . . . violate NEPA,” that the leasing

authorizations and leases be vacated, and an injunction to prevent the Federal Defendants “from

approving or otherwise taking action on any applications for permits to drill on the leases
included in the lease sales challenged herein.” Am. Compl. at 39. The Western Energy Alliance

(Alliance), Petroleum Association of Wyoming (PAW), and America Petroleum Institute (API)

sought and received leave to intervene as defendants. See generally Mem. & Order, ECF No. 19.

Following that intervention, the Court adopted the parties’ case management plan, which split

the case into separate phases, with the Wyoming phase to be briefed and decided first. See

generally Order, ECF No. 24.

        The State of Wyoming (Wyoming), the State of Colorado (Colorado), and the State of

Utah (Utah) subsequently moved to intervene as defendants. Wyo.’s Mot. Intervene, ECF No.

30; Colo.’s Mot. Intervene, ECF No. 37; Utah’s Mot. Intervene, ECF No. 39. The proposed

intervenors conferred with the existing parties, and no existing party opposed the intervention.1

As discussed below, the Court grants Wyoming, Colorado, and Utah’s motions to intervene as a

matter of right.2


                                     II. LEGAL STANDARD

        Federal Rule of Civil Procedure 24(a) provides that

        [o]n timely motion, the court must permit anyone to intervene who: claims an
        interest relating to the property or transaction that is the subject of the action, and

        1
          The Alliance and PAW supported Wyoming, Colorado, and Utah’s intervention. Wyo.’s
Mot. Intervene at 2; Colo.’s Mot. Intervene at 2; Utah’s Mot. Intervene at 1. API consented to
Wyoming’s intervention and did not object to Colorado or Utah’s intervention. Wyo.’s Mot.
Intervene at 2; Colo.’s Mot. Intervene at 2; Utah’s Mot. Intervene at 1–2.
        The Plaintiffs and Federal Defendants took no position on any state’s intervention, although
Plaintiffs object to the participation of Colorado and Utah during the briefing stage addressing oil
and gas leases within Wyoming. Wyo.’s Mot. Intervene at 2; Colo.’s Mot. Intervene at 2; Utah’s
Mot. Intervene at 1–2. Wyoming supports Colorado’s intervention. Colo.’s Mot. Intervene at 2.
Wyoming and Colorado support Utah’s intervention. Utah’s Mot. Intervene at 1–2.
        2
         Because the Court finds that Wyoming, Colorado, and Utah may intervene as of right, it
does not reach their arguments for permissive intervention under Rule 24(b)(1)(B). See Mem.
Supp. Wyo.’s Mot. Intervene at 24–25, ECF No. 30; Mem. Supp. Colo.’s Mot. Intervene at 16–
17, ECF No. 37-1; Utah’s Mot. Intervene at 8.


                                                   2
        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); see also Roane v. Leonhart, 741 F.3d 147, 151 (D.C. Cir. 2014) (“A

district court must grant a timely motion to intervene that seeks to protect an interest that might

be impaired by the action and that is not adequately represented by the parties.”). According to

the D.C. Circuit, Rule 24(a) requires four distinct elements be satisfied where a party seeks to

intervene as a matter of right: “(1) 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. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008) (internal quotation marks omitted).3


                                          III. ANALYSIS

                               A. Intervention as a Matter of Right

        To determine if a motion to intervene is timely, “courts should take into account (a) the

time elapsed since the inception of the action, (b) the probability of prejudice to those already

party to the proceedings, (c) the purpose for which intervention is sought, and (d) the need for

intervention as a means for preserving the putative intervenor’s rights.” WildEarth Guardians v.

Salazar, 272 F.R.D. 4, 12 (D.D.C. 2010). Here, Wyoming, Colorado, and Utah moved to



        3
          Although “intervenors must demonstrate Article III standing,” Deutsche Bank Nat.
Trust Co. v. FDIC, 717 F.3d 189, 193 (D.C. Cir. 2013), in this circuit “[t]he standing inquiry is
repetitive in the case of intervention as of right because an intervenor who satisfies Rule 24(a)
will also have Article III standing.” Akiachak Native Cmty. v. U.S. Dep’t of Interior, 584 F.
Supp. 2d 1, 7 (D.D.C. 2008); see also WildEarth Guardians v. Salazar, 272 F.R.D. 4, 13 n.5
(D.D.C. 2010) (“In most instances, the standing inquiry will fold into the underlying inquiry
under Rule 24(a): generally speaking, when a putative intervenor has a ‘legally protected’
interest under Rule 24(a), it will also meet constitutional standing requirements, and vice
versa.”). The Court thus does not separately analyze the movants’ standing.


                                                   3
intervene approximately sixteen weeks after the initial complaint was filed, and approximately

four weeks after the amended complaint—reflecting the previous intervenors—was filed. Under

this Court’s scheduling order, dispositive motions will not be filed until June of 2017, and the

Administrative Record will not be available until March of 2017. Order, ECF No. 24. No party

argues that Wyoming, Colorado, or Utah’s participation would be prejudicial, or opposes their

intervention.4 See generally Wyo.’s Mot. Intervene; Colo.’s Mot. Intervene; Utah’s Mot.

Intervene. Without any indication of potential prejudice, the Court thus concludes that

intervention by the movants would be timely. See Roane, 741 F.3d at 152 (“[I]n the absence of

any indication that [the applicant’s] intervention would give rise to . . . prejudice, [the applicant’s]

motion was timely. . . .”); see also WildEarth, 272 F.R.D. at 14; Karsner, 532 F.3d at 886.

        As to the second and third factors, this Circuit has explained that the “putative intervenor

must have a legally protected interest in the action,” WildEarth, 272 F.R.D. at 12 (internal

quotation marks omitted), and that the action must threaten to impair the putative intervenor’s

proffered interest in the action, Karsner, 532 F.3d at 885. “The test operates in large part as a

practical guide, with the aim of disposing of disputes with as many concerned parties as may be

compatible with efficiency and due process.” WildEarth, 272 F.R.D. at 12–13.

        Here, Wyoming benefits financially from federal oil and gas leases. See Mem. Supp.

Wyo.’s Mot. Intervene (Wyo. Mem.) at 11, ECF No. 30 (“In 2009, the State received $460

million in severance and $479 in ad valorem tax revenues from oil and gas activities in

Wyoming.”). Of the billions of dollars in royalty revenue generated by federal oil and gas leases

in Wyoming, about half is returned to the state. Wyo. Mem. at 11. In addition, the Wyoming Oil



        4
         Although Plaintiffs oppose Colorado and Utah’s involvement in briefing the Wyoming
phase, this opposition is not based on timing concerns.


                                                    4
and Gas Conservation Commission and the Wyoming Department of Environmental Quality

worked with the Bureau of Land Management in developing the regulatory framework under

which the leases occurred, Wyo. Mem. at 13–14, and Wyoming thus has regulatory interests in

the leases.

        Similarly, Colorado receives millions of dollars from federal oil and gas leases, through

both severance tax and its share of federal revenue. Mem. Supp. Colo.’s Mot. Intervene (Colo.

Mem.) at 11-12, ECF No. 37-1. Colorado agencies, especially the Colorado Oil and Gas

Commission and the Colorado Department of Public Health and Environment, are also highly

involved in regulating the development of oil and gas resources such as the leases at issue in this

case. Colo. Mem. at 7–9. Colorado identifies an interest in “protecting its comprehensive

regulatory scheme” and “preserving” what it views as successful regulatory results already

obtained in the existing leases. Colo. Mem. at 8–9.

        Utah likewise benefits from federal oil and gas leases. Under the federal revenue-sharing

system, Utah received $116 million in 2015, “much of which” originated from oil and gas

production. Utah’s Mot. Intervene at 4. Indirectly, oil and gas development creates energy jobs in

Utah and contributes to income tax and sales tax revenue. Utah’s Mot. Intervene at 4–5. Utah’s

agencies, including the Public Lands Policy Coordinating Office, the Department of Wildlife

Resources, the Division of Oil, Gas, and Mining, and the Office of Energy Development are

involved in the analysis of proposed lease parcels and in regulating extraction and production

once leases are issued. Utah’s Mot. Intervene at 4.

        Thus, if Plaintiffs were successful in this case, the economic and regulatory interests of

Wyoming, Colorado, and Utah would likely be impaired. Other courts in this jurisdiction have

found that similar situations justified intervention. See, e.g., Akiachak Native Cmty. v. U.S. Dep’t




                                                 5
of Interior, 584 F. Supp. 2d 1, 7 (D.D.C. 2008) (“Because [granting the plaintiff’s request] would

abrogate Alaska’s taxing and regulatory authority over the trust land . . . Alaska’s interest may be

impaired by the outcome of this litigation.”); Guardians v. U.S. Bureau of Land Mgmt., No. 12-

0708, 2012 WL 12870488, at *1–2 (D.D.C. June 7, 2012) (permitting Wyoming to intervene in a

challenge to federal regulations because “Wyoming has an interest in regulating coal

development activities within its borders and controlling the effect of those activities on the

state’s environmental quality” and “Wyoming has an economic interest in the development of

coal mining operations in the state”); see also Fund For Animals, Inc. v. Norton, 322 F.3d 728,

737 (D.C. Cir. 2003) (permitting Mongolia to intervene in an action challenging the Secretary of

the Interior’s classification of a Mongolia sheep as threatened). Nor do Plaintiffs suggest that the

proposed intervenors do not have an interest in the outcome of this action. The court therefore

concludes that Wyoming, Colorado, and Utah have legally protectable interests that may be

impaired by this action. See WildEarth Guardians v. National Park Service, 604 F.3d 1192, 1199

(10th Cir. 2010) (recognizing that “the interest of a prospective defendant-intervenor may be

impaired where a decision in the plaintiff’s favor would return the issue to the administrative

decision-making process, notwithstanding the prospective intervenor’s ability to participate in

formulating any revised rule or plan”); see also Cnty. of San Miguel, 244 F.R.D. at 44.

       With respect to the fourth factor, the intervenors must show that the existing parties do

not adequately represent their interests. Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008).

The burden of showing that the representation of the existing parties “may be inadequate” is

“minimal.” Fund For Animals, Inc. v. Norton, 322 F.3d 728, 735 (D.C. Cir. 2003) (quotation

marks omitted). Several previous cases have permited intervention by states when the federal

government was already a party. See, e.g., Akiachak Native Cmty. v. U.S. Dep’t of Interior, 584




                                                 6
F. Supp. 2d 1, 7 (D.D.C. 2008) (holding that “the existing defendants, the DOI and the Secretary,

have no clear interest in protecting Alaska’s sovereignty or Alaska’s interest”); see also Guardians

v. U.S. Bureau of Land Mgmt., No. 12-0708, 2012 WL 12870488, at *1–2 (D.D.C. June 7, 2012).

Accordingly, the Federal Defendants do not adequately represent the interests of Wyoming, Colorado,

or Utah. While the Federal Defendants’ duty runs to the interests of the American people as a

whole, the state-intervenors will primarily consider the interests of their own citizens. Furthermore,

Wyoming, Colorado, and Utah may have unique sovereign interests not shared by the federal

government. Nor do Plaintiffs argue that any of the other parties would adequately represent the

proposed intervenors interests, in general.5 It is thus straightforward to conclude that the Federal

Defendants representation of Wyoming, Colorado, and Utah “may be” inadequate.

       Because Wyoming, Colorado, and Utah satisfy the requirements of Federal Rule of Civil

Procedure 24(a), the Court must permit them to intervene and will grant the motions for

intervention as a matter of right.

        B. Limitations on Colorado and Utah’s Participation in the Wyoming Phase

       Although Plaintiffs do not object to Colorado and Utah’s intervention in general,

Plaintiffs request that Colorado and Utah be barred from briefing the Wyoming phase of the

litigation.6 See generally Pl.’s Resp. Mot. Intervene Colo. (Pl.’s Resp. Colo.), ECF No. 38; Pl.’s

Resp. Mot. Intervene Utah (Pl.’s Resp. Utah), ECF No. 42. The Advisory Committee Notes

accompanying the 1966 amendments to Rule 24 state that “[a]n intervention of right under the

amended rule may be subject to appropriate conditions or restrictions responsive among other


       5
          As discussed below, Plaintiffs do argue that, for the purposes of the Wyoming phase
only, Colorado and Utah’s interests will be represented adequately by Wyoming and the other
parties. Pl.’s Resp. Colo. at 2; Pl.’s Resp. Utah at 2.
       6
          Plaintiffs do not object to Wyoming’s participation in the Wyoming phase of the
litigation. Cf. Pl.’s Resp. Colo. at 2, ECF No. 38.


                                                  7
things to the requirements of efficient conduct of the proceedings.” Fed. R. Civ. P. 24, Advisory

Comm. Notes. Other courts in this jurisdiction have also found that a court may impose

restrictions on an intervenor’s participation “consonant with [the court’s] inherent power to

manage the litigation before it.” Wildearth Guardians v. Salazar, 272 F.R.D. 4, 13 (D.D.C.

2010). Because the Court does not find that complete exclusion is necessary for the efficient

conduct of this case, the Court declines to bar Colorado and Utah from briefing the Wyoming

phase. However, the Court does impose moderate restrictions on Colorado and Utah’s

participation to avoid duplicative briefing.

       This Court previously implemented the proposal of the Plaintiffs and Federal Defendants

(with the consent of the existing intervenors Alliance, PAW, and API) to divide the litigation

into phases and proceed first with “claims concerning the Wyoming leasing decisions.” Order,

ECF No. 24 at 1. Plaintiffs request that Colorado and Utah be excluded from briefing the

Wyoming phase, and, presumably, that each be able to participate in only the phases pertaining

to their own states. Pl.’s Resp. Colo. at 1; Pl.’s Resp. Utah at 1.

       Plaintiffs marshal three objections to Colorado and Utah’s participation in the Wyoming

phase. First, Plaintiffs argue that Colorado and Utah’s economic and regulatory interests are

exclusively related to leases in Colorado or Utah rather than Wyoming. Pl.’s Resp. Colo. at 2;

Pl.’s Resp. Utah at 2. Second, to the extent that Colorado and Utah do have an interest in the

Wyoming leases, Plaintiffs argue that Wyoming, the trade group intervenors, and the federal

defendants will adequately represent Utah’s and Colorado’s interests. Pl.’s Resp. Colo. at 2; Pl.’s

Resp. Utah at 2. Third, Plaintiffs contend that allowing Colorado or Utah to brief the Wyoming




                                                   8
phase would result in multiple, duplicative filings that would burden the court.7 Pl.’s Resp. Colo.

at 2–3; Pl.’s Resp. Utah at 3.

       In response, Colorado argues that it could be prejudiced if the Court decides the

Wyoming phase without its participation. Colo.’s Reply Supp. Mot. Intervene (Colo.’s Reply) at

2–3, ECF No. 44. Similarly, Utah contends that a Wyoming decision could have “preclusive

effect” on the Utah claims. Utah’s Mot. Intervene at 8, ECF No. 39. As Colorado and Utah note,

Plaintiffs’ complaint articulates the same legal challenges to all leases without differentiating by

state. See, e.g., Am. Compl. ¶ 6, ECF No. 22 (arguing that “in each of [the 473 new leases],

BLM” failed to take the same three steps); id. ¶ 91 (“Although some variation exists among

challenged individual leasing [environmental assessments], each [] includes the same two

fundamental deficiencies regarding BLM’s treatment of direct impacts of GHG emissions . . .”).

In contrast, Plaintiffs argue that Colorado and Utah will not be prejudiced by the resolution of

the Wyoming issues because each state’s regulations are unique and each leasing agreement has

a separate administrative record, therefore “a decision that a particular lease sale authorization in

Wyoming did not comply with [NEPA] would not ‘equally affect’ a lease sale authorization in

Utah, which is supported by a different administrative record.” Pl.’s Resp. Utah at 2–3.

       Given the apparent similarity of Plaintiffs’ claims regarding the leases in each state, the

Court is concerned that Colorado and Utah may be prejudiced if they are not permitted to

participate in briefing the Wyoming phase. Although, as Plaintiffs note, each lease involves a

different administrative record, the leasing process also appears to include many points of

similarity. Furthermore, Plaintiffs’ arguments appear to focus on the actions of the federal



       7
          Colorado argues that, to the contrary, relitigating the legal issues in the Wyoming phase
again at the Colorado phase would actually result in more duplicative briefing. Colo.’s Reply at 3.


                                                  9
defendants—which are more likely to be similar across states—than the vagaries of each state’s

process. Although Plaintiffs argue that Colorado and Utah have direct interests only in the leases

in their own states, to the extent that Colorado and Utah are prejudiced by the resolution of the

Wyoming phase, their interests will indeed be impaired. In addition, the Court rejects Plaintiffs

suggestion that other parties will adequately represent Colorado or Utah’s interests for the

reasons explained above. While the Court shares Plaintiffs’ concerns about the potential for

duplicative or burdensome filings, these concerns can be addressed short of excluding Colorado

and Utah from participation entirely. Colorado and Utah are each directed to comply with the

following page limits: no more than 30 pages for memoranda of points and authorities in support

of or in opposition to motions, and no more than 20 pages for reply memoranda. And, prior to

any filings, the three states shall confer with one another to consolidate their briefing and avoid

duplicative arguments to the extent practical. If Colorado or Utah finds it necessary to file

separately, the separate filing shall include a certificate of compliance with this requirement that

briefly describes the need for a separate filing. Cf. Wildearth Guardians v. Salazar, 272 F.R.D. 4,

21 (D.D.C. 2010).


                                       IV. CONCLUSION

       For the foregoing reasons, the State of Wyoming’s motion to intervene is hereby

GRANTED; the State of Colorado’s motion to intervene is hereby GRANTED; and the State of

Utah’s motion to intervene is hereby GRANTED.

       It is FURTHER ORDERED that the caption in this case is amended to reflect the same.

       It is FURTHER ORDERED that Wyoming, Colorado, and Utah shall coordinate to the

extent practical to avoid duplicative briefing by consolidating their filings and avoiding repetitive

arguments.


                                                 10
        It is FURTHER ORDERED that a separate filing by Colorado or Utah shall include a

certificate of compliance with this Memorandum & Order that briefly describes the need for the

separate filing.

        It is FURTHER ORDERED that Colorado and Utah shall limit the length of any

memoranda supporting or opposing motions to at most 30 pages, and shall limit the length of any

reply memoranda to at most 20 pages.

        It is FURTHER ORDERED that the State of Wyoming’s proposed Answer, attached to

its Motion to Intervene, is hereby accepted as filed.

        It is FURTHER ORDERED that the State of Colorado’s proposed Answer, attached to

its Motion to Intervene, is hereby accepted as filed.

        It is FUTHER ORDERED that the State of Utah’s proposed Answer, attached to its

Motion to Intervene, is hereby accepted as filed.



        SO ORDERED.


Dated: February 14, 2017                                        RUDOLPH CONTRERAS
                                                                United States District Judge




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