                      UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA


    IN RE ENDANGERED SPECIES ACT
    SECTION 4 DEADLINE LITIGATION
                                        Misc. Action No. 10-377 (EGS)
                                        MDL Docket No. 2165
    This Document Relates To:
    Center for Biological
    Diversity v. Salazar, No. 10-
    CV-00230 (EGS)



                          MEMORANDUM OPINION

        Pending before the Court is a motion to intervene as of

right or, in the alternative, for permissive intervention filed

by Tejon Ranch Company, Tejon Ranchcorp, and Tejon Mountain

Village, LLC (collectively “TRC”).        TRC seeks to intervene in

only one of the consolidated cases in this matter:        Center for

Biological Diversity v. Salazar, No. 10-230, which arises in part

from a petition to list the Tehachapi slender salamander under

the Endangered Species Act (“ESA”).        TRC’s motion is opposed by

Plaintiff Center for Biological Diversity (“CBD”) and by

Plaintiff Wildearth Guardians (“Wildearth”).1        The federal

defendants take no position on TRC’s motion.        Upon consideration

of TRC’s motion, the responses and reply thereto, the relevant



1
   Plaintiff Wildearth is not a party to Case No. 10-230 but
filed a response to TRC’s motion to intervene, as authorized by
this Court’s Minute Order dated August 6, 2010.

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law, and for the reasons stated herein, TRC’s motion to intervene

is DENIED.

I.   BACKGROUND

     A.    Statutory Background

     The ESA was enacted for the purpose of providing “a means

whereby the ecosystems upon which endangered species and

threatened species depend may be conserved [and] . . . a program

for the conservation of such endangered species and threatened

species[.]”   16 U.S.C. § 1531(b).     The ESA requires the Secretary

of the Interior to publish and maintain a list of all species

that have been designated as threatened or endangered.2     Id. §

1533(c).   Species are added to and removed from this list through

a notice and comment process, either on the initiative of the

Secretary or as a result of a petition submitted by an

“interested person.”     Id. §§ 1533(b)(1), (3), (5).

     The ESA establishes specific procedural steps for making a

listing determination.    Within 90 days of receiving a listing

petition, the United States Fish and Wildlife Service (“FWS”)

must “[t]o the maximum extent practicable” determine whether “the

petition presents substantial scientific or commercial

2
   The Secretary of the Interior (for terrestrial species) and
the Secretary of Commerce (for marine species) are responsible
for making listing determinations. 16 U.S.C. §§ 1532(15),
1533(a)(2). The Secretaries have delegated their
responsibilities under the Act to the United States Fish and
Wildlife Service (“FWS”), in the case of Interior, and to the
National Marine Fisheries Service, in the case of Commerce.

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information indicating that the petitioned action may be

warranted.”   16 U.S.C. § 1533(b)(3)(A).   If the FWS determines on

this basis that listing may be warranted, it must promptly

commence a review of the species’ status.     Id.   Within 12 months

of receiving the listing petition, the agency must have completed

its review and must make a finding that listing is either: (1)

not warranted; (2) warranted, but precluded by other listing

priorities; or (3) warranted, in which case the FWS must publish

a proposed rule to list the species in the Federal Register.      Id.

§ 1533(b)(3)(B).   The ESA permits no exceptions to this 12-month

mandatory deadline.

     B.   Factual and Procedural Background

     On February 28, 2006, the FWS received a citizen petition to

list the Tehachapi slender salamander as an endangered or

threatened species.   See 90-Day Finding on a Petition to List the

Tehachapi Slender Salamander (Batrachoseps stebbins) as

Threatened or Endangered, 74 Fed. Reg. 18,336 (Apr. 22, 2009)

(“90-Day Finding”).   The Tehachapi slender salamander is a small,

lungless amphibian believed to exist in only two populations in

central California – one in Caliente Canyon in the southern

Sierras, and the other in the Tehachapi Mountains.      TRC

Memorandum in Support of Motion to Intervene at 4, Docket No. 9

(“TRC Mem.”).   A portion of the Tehachapi population is found on

Tejon Ranch, which is owned by Movant-Intervenor TRC.      TRC Mem.


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at 4.   Tejon Ranch is a 270,000-acre working ranch located 60

miles north of Los Angeles and 30 miles south of Bakersfield,

California.   Declaration of Roberta Marshall in Support of Motion

to Intervene ¶ 2, Docket No. 9-1 (“Marshall Decl.”).         It is the

largest contiguous piece of private property in California and

supports ranching and farming operations, oil production, mining,

recreational activities, and real estate development.        Marshall

Decl. ¶ 2.    In 2008, Tejon Ranchcorp entered into a conservation

agreement that will result in permanent conservation of up to 90%

of the entire property.   Marshall Decl. ¶ 7.      There are, however,

future development plans for the property that include a mountain

resort community called Tejon Mountain Village (“TMV”), which

will consist of homes, a destination resort, hiking trails, open

space, and other amenities.    Marshall Decl. ¶ 2.     The petition to

list the Tehachapi slender salamander asserts, among other

things, that “development on the Tejon Ranch property poses

serious threats to the species.”       Marshall Decl. ¶ 9.

     Over the past several years, TRC has been working with the

FWS on a Multiple Species Habitat Conservation Plan (“MSHCP”) for

27 threatened, endangered, and sensitive species that occupy

habitat on Tejon Ranch, including the Tehachapi slender

salamander.   Marshall Decl. ¶¶ 4-6.      Once this plan is approved,

TRC will be able to pursue normal business activities, including

future development, in exchange for adopting voluntary land use


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restrictions and management prescriptions.    Marshall Decl. ¶ 3.

As proposed, this MSHCP will permanently protect 3,507 of the

3,797 acres of suitable habitat for the salamander, along with

other conservation measures.    Marshall Decl. ¶ 6.   The MSHCP was

released for public comment in 2009 but has not yet been approved

by the FWS. Marshall Decl. ¶ 4; TRC Mem. at 7.

     On April 22, 2009, the FWS issued its 90-day finding on the

Tehachapi slender salamander, concluding that “the petition

presents substantial scientific or commercial information

indicating that listing . . . may be warranted.”      90-Day Finding,

74 Fed. Reg. at 18,341.    The FWS specifically found that the

petition presented “credible and substantial” evidence that the

species may be threatened by road construction and maintenance,

residential and commercial development, livestock grazing, and

mining.   Id. at 18,339.   Subsequently, on February 17, 2010,

Plaintiff CBD filed a complaint in the United States District

Court for the Eastern District of California challenging the

FWS’s failure to act on the Tehachapi slender salamander and

listing petitions for six additional species. Ctr. for Biological

Diversity v. Salazar, No. 10-401 (E.D. Cal. filed Feb. 17, 2010).

TRC filed a motion seeking leave to intervene in that case on

April 2, 2010.   TRC Mem. at 5.

     Before TRC’s motion could be resolved, CBD voluntarily

dismissed the case and, on April 26, 2010, amended its complaint


                                  5
in a related action pending before this Court to add claims

regarding the Tehachapi slender salamander.   First Amended

Complaint, Ctr. for Biological Diversity v. Salazar, No. 10-230,

Docket No. 8 (“First Am. Compl.”).   Specifically, Plaintiff CBD

claims that the FWS failed to meet a statutory 12-month deadline

to determine whether or not listing of this species is warranted.

First Am. Compl. ¶ 2.   Plaintiff requests relief in the form of

(1) an order declaring that the FWS failed to comply with its

statutorily-mandated deadline and (2) an order requiring the

Secretary to make the required finding by a date certain.     First

Am. Compl. ¶ 2.

      Several related cases brought by Plaintiff CBD and Plaintiff

Wildearth in other jurisdictions were subsequently transferred to

this Court and consolidated for pre-trial proceedings by order of

the United States Judicial Panel on Multidistrict Litigation.

Conditional Transfer Order, In re: Endangered Species Act Section

4 Deadline Litigation, No. 10-mc-377, Docket No. 1.   TRC sought

to intervene in this matter on August 5, 2010.   This motion is

now ripe for determination by the Court.

II.   ANALYSIS

      TRC moves to intervene in this case as a matter of right

pursuant to Federal Rule of Civil Procedure 24(a) or, in the

alternative, by permission of the Court pursuant to Federal Rule

of Civil Procedure 24(b).   Plaintiffs oppose TRC’s motion in both


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respects.   This Opinion addresses each of these requests in turn.

     A.     Intervention as of Right

     Intervention as a matter of right is governed by Rule 24(a)

of the Federal Rules of Civil Procedure, which states in relevant

part:

     On timely motion, the court must permit anyone to
     intervene who: (1) is given an unconditional right to
     intervene by a federal statute; or (2) 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.

     In the D.C. Circuit an applicant must meet four criteria to

be granted intervention as of right: (1) timeliness; (2) a

protectable interest relating to the property or transaction that

is the subject of the action; (3) impairment of the ability to

protect that interest; and (4) inadequate representation of that

interest by other parties.    Fund for Animals v. Norton, 322 F.3d

728, 731 (D.C. Cir. 2003).    In addition to satisfying these

criteria, a party seeking to intervene as of right must

demonstrate that it has standing under Article III of the

Constitution. Id. at 732.    Because a prospective intervenor’s

Article III standing presents a question going to this Court’s

jurisdiction, see Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.

Cir. 2002), the Court must address standing before considering

the four-part test for evaluating intervention as of right.       Fund


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for Animals, 322 F.3d at 732.

     All litigants must demonstrate that they are “entitled to

have the court decide the merits of the dispute” in order to

properly invoke the jurisdiction of a federal court.     Warth v.

Sedlin, 422 U.S. 490, 498 (1975).     At a minimum, an intervenor,

like any party, must show (1) an injury-in-fact that is (a)

concrete and particularized and (b) actual and imminent, (2)

causation, and (3) redressability.     Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992).

     In attempting to demonstrate standing, TRC identifies two

potential injuries.   First, because Tehachapi slender salamanders

are found on TRC property, TRC claims that the outcome of the FWS

listing determination for this species may precipitate

restrictions on the use of its land and business operations.    TRC

Mem. at 14, 16.   As TRC notes, it is axiomatic that property

owners have an interest in a suit that affects their property.

Foster v. Gueory, 655 F.2d 1319, 1324 (D.C. Cir. 1981).     Second,

TRC asserts that it could suffer economic losses and additional

delays in developing its property if the FWS is forced to render

its listing decision on the Tehachapi slender salamander before

TRC’s proposed conservation plan has been finalized and approved.

TRC Reply to Plaintiffs’ Opposition to Motion to Intervene at 3,

Docket No. 14 (“TRC Reply”).    TRC asserts that the MSHCP is

“intertwined” with the listing decision for the Tehachapi slender


                                  8
salamander, such that once it is approved by FWS it could obviate

the need for listing the species altogether.    TRC Reply at 3.    On

the other hand, if the listing determination is made while the

MSHCP is still pending, TRC would then be forced to spend

additional time and resources revising the conservation plan to

address the newly-listed species.    TRC Reply at 3.   The Court

will explore these arguments in turn.

     With regard to the purported injury to TRC’s property

interests, the Court finds that TRC has failed to satisfy the

causation and redressability prongs of the Article III standing

test.   TRC’s alleged injury is based entirely on the potential

substantive outcome of the FWS’s listing determination for the

Tehachapi slender salamander, which is not before this Court.

The case before this Court deals only with the FWS’s alleged

failure to complete a preliminary step in the listing process

within the time period required by law.    Because this Court will

issue no order directly impacting TRC’s use of its property,

TRC’s claims of injury from restrictions on its property use and

business operations bear no relation to the present action.

     While TRC’s claims of injury from the timing of the FWS’s

listing decision are more relevant to the actual case before this

Court, they likewise fail to establish standing.    TRC’s purported

interest is in ensuring that its MSHCP will be approved and

properly considered prior to listing the Tehachapi slender


                                 9
salamander.   It is unclear how intervening here would protect

that interest.   TRC does not allege and has not shown that its

proposed habitat conservation plan will be approved or denied as

a result of the instant lawsuit.     The question before this Court

- whether the FWS fulfilled a procedural obligation to complete a

review of the status of the Tehachapi slender salamander within

the time period provided by law - has no apparent impact on

whether TRC’s proposed plan will be approved or properly

considered.   Because TRC has failed to show both causation and

redressability with respect to this injury as well, the Court

finds that TRC does not have standing to intervene in this case.

     For the same reasons, the Court finds that any interest TRC

may have is not legally protectable by a judgment of the Court in

this case. United States v. Am. Tel. and Tel. Co., 642 F.2d 1285,

1291-92 (D.C. Cir. 1980) (defining a legally protectable interest

as one which is “of such a direct and immediate character that

the intervenor will either gain or lose by the direct legal

operation and effect of the judgment”).3

3
   Nor is the Court persuaded by the primary case relied upon by
TRC in support of its motion. In County of San Miguel v.
Macdonald, 244 F.R.D. 36 (D.D.C. 2007) (Walton, J.), the court
granted intervention as of right over plaintiffs’ objections that
“lawsuits such as this one do not result in an order compelling
the defendants to actually list the subject species.” Id. at 47.
In granting the intervention request, the court found that “the
Gunnison sage grouse is the subject of the sought-after
regulation and the intervenor-applicants’ members benefit from
the FWS’s current ‘not warranted’ determination. If the Court
grants the relief that the plaintiffs seek, the threat of greater
regulation of the lands the intervenor-applicants use and rely

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     Because the Court finds that TRC does not have standing to

intervene and has failed to state a legally protectable interest

in this case, the Court DENIES TRC’s motion to intervene as of

right.4

     B.    Permissive Intervention

     In the alternative, TRC moves for permissive intervention

under Federal Rule of Civil Procedure 24(b).   Rule 24(b)(1)(B)

provides for permissive intervention on a timely motion, where

the applicant “has a claim or defense that shares with the main

action a common question of law or fact.”   To litigate a claim

on the merits under Rule 24(b)(2), the prospective intervenor

must demonstrate (1) an independent grounds 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.   Equal Emp’t Opportunity Comm’n v. Nat’l Children’s Ctr.,

upon for their livelihoods and business operations would be
imminent and would result in concrete injury to their members.”
Id. at 45. While the court’s reasoning is persuasive, it is also
distinguishable from this case because the plaintiffs in County
of San Miguel requested substantive relief in the form of an
order requiring the FWS to issue an emergency listing of the
Gunnison sage grouse. Id. at 47. TRC does not face the same
direct and immediate threat from the procedural relief sought by
Plaintiff CBD in this case. See Ctr. for Biological Diversity v.
U.S. Fish and Wildlife Serv., No. 04-4324, 2005 U.S. Dist. LEXIS
42275 at *15 (N.D. Cal. May 30, 2005) (denying motion to
intervene as of right because “[a]pplicant-intervenors’ economic
interests are not related to federal compliance or noncompliance”
with non-discretionary requirements imposed by the ESA).
4
   Having found that TRC has no legally protectable interest
sufficient to entitle it to intervene as of right, the Court need
not consider the remaining elements of the four-part test.

                                11
146 F.3d 1042, 1046 (D.C. Cir. 1998).    If a prospective

intervenor satisfies these criteria, courts “must consider

whether the intervention will unduly delay or prejudice the

adjudication of the original parties’ rights.”     Fed. R. Civ. P.

24(b)(1)(B).   Because permissive intervention is granted solely

at the discretion of the district court, the Court may deny

permission to intervene even if the applicant satisfies the

necessary criteria.     Nat’l Children’s Ctr., 146 F.3d at 1048.

     As a threshold matter the Court finds that the intervention

motion was timely filed, and that TRC has demonstrated sufficient

grounds for the Court’s subject matter jurisdiction and common

questions of law and fact with the main action.5    TRC Mem. at 22.

The issue in this case, therefore, is whether intervention will

lead to prejudice or delay.

     After careful consideration of the parties’ positions, the

Court finds that allowing TRC to intervene could lead to undue

delay and would potentially prejudice the adjudication of the

original parties’ rights.    This matter is currently stayed while

the parties pursue settlement negotiations.     See Minute Order

dated August 5, 2010.    Recognizing that TRC’s stated purpose in


5
   Related to the issue of subject matter jurisdiction is the
issue of standing. Although intervenors of right are obligated
to demonstrate standing, it is unclear in this Circuit whether
standing is also required for permissive intervention. See In re
Vitamin Antitrust Class Actions, 215 F.3d 26, 31-32 (D.C. Cir.
2000). As discussed above, TRC has not demonstrated Article III
standing to intervene in this case.

                                  12
seeking to intervene is, in part, to protect its interests by

delaying a 12-month finding on the Tehachapi slender salamander

(TRC Mem. at 19; TRC Reply at 16), the Court is unwilling to put

TRC in a position to draw out ongoing settlement negotiations and

to further delay the resolution of this case.

       The Court also finds that denying TRC’s motion to intervene

will not prejudice TRC because intervening in this essentially

procedural matter is not an appropriate mechanism for TRC to

protect its substantive interests.    TRC can best serve its stated

interests by participating in the administrative review process

for the FWS’s eventual listing decision.    If the FWS ultimately

finds that the Tehachapi slender salamander warrants listing, TRC

can then file its own lawsuit to protect those interests

directly.    While the Court is aware that it is “not enough to

deny intervention . . . because the applicants may vindicate

their interests in some later, albeit more burdensome,

litigation,” Natural Res. Def. Council v. Costle, 561 F.2d 904,

910 (D.C. Cir. 1977), the case before the Court offers TRC no

opportunity to effectively vindicate its interests.

        Therefore, in order to avoid the potential for undue delay

and prejudice to the original parties, the Court DENIES TRC’s

request for permissive intervention.

III.      CONCLUSION

       For the reasons stated herein, the Movant-Intervenors’


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Motion to Intervene is DENIED.   An appropriate Order accompanies

this Memorandum Opinion.

     SO ORDERED.

Signed by:     Emmet G. Sullivan
               United States District Court Judge
               August 27, 2010




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