Wildearth Guardians v. Salazar

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILDEARTH GUARDIANS,
DEFENDERS OF WILDLIFE, and
SIERRA CLUB,
Plaintiffs,
v.
KEN SALAZAR, Secretary, U.S.
Department of Interior, U.S. BUREAU OF Civil Action No. 10-01174 (CKK)
LAND MANAGEMENT, and U.S. FISH
AND WILDLIFE SERVICE,
Defendants,
ANTELOPE COAL LLC, NATIONAL
MINING ASSOCIATION, and STATE OF
WYOMING,
Intervenors/Defendants.
MEMORANDUM OPINION
(December 6, 2010)
Plaintiffs Wildearth Guardians, Defenders of Wildlife, and the Sierra Club (collectively,
“Plaintiffs”) commenced this action on July 13, 2010, challenging the U.S. Department of
Interior’s decision to authorize the leasing of certain public lands in northeastern Wyoming for
coal mining operations. Named as defendants are Ken Salazar, in his official capacity as
Secretary of the U.S. Department of Interior, the U.S. Bureau of Land Management (the
“Bureau”), and the U.S. Fish and Wildlife Service (collectively, the “Federal Defendants”).
Presently before the Court are three separate motions – one by [11] Antelope Coal LLC
(“Antelope”), a second by [28] the National Mining Association (“NMA”), and a third by [14]
the State of Wyoming (“Wyoming”) – to intervene as defendants in this action (collectively, the
“Putative Intervenors” or, simply, the “Intervenors”). Plaintiffs contest the three motions to
intervene, albeit only in part and in a severely limited fashion; the Federal Defendants, for their
part, take no position on the Putative Intervenors’ participation in this action. For the reasons set
forth below, the Court shall grant all three motions, subject to certain limitations and conditions.
I. PRELIMINARY MATTERS
For purposes of resolving the motions to intervene presently before the Court, the well-
pleaded allegations in the Complaint are assumed to be true.1 Secs. & Exch. Comm’n v.
Prudential Secs. Inc., 136 F.3d 153, 156 n.4 (D.C. Cir. 1998) (citing Williams & Humbert Ltd. v.
W. & H. Trade Marks (Jersey) Ltd., 840 F.2d 72, 75 (D.C. Cir. 1988)). Additionally, where
appropriate, the Court shall refer to the non-conclusory allegations and record evidence offered
by the Putative Intervenors in support of their motions to intervene. See Foster v. Gueory, 655
F.2d 1319, 1324 (D.C. Cir. 1981) (“motions to intervene are usually evaluated on the basis of
well pleaded matters in the motion, the complaint, and any responses of opponents to
intervention.”); Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001)
(“Courts are to take all well-pleaded, nonconclusory allegations in the motion to intervene, the
proposed complaint or answer in intervention, and declarations supporting the motion as true
absent sham, frivolity or other objections.”). While the Court shall cite only to those portions of
the record immediately relevant to its disposition today, the Court notes that it has considered
each of the parties’ submissions and the attachments thereto, including, but not limited to, the
following documents:
1
While this action is in its early stages, Plaintiffs have twice revised the Complaint in
this action. See Compl., Docket No. [1]; First Am. Compl., Docket No. [18]; Supplemented
Compl. (“3d Compl.”), Docket No. [34].
2
• Antelope’s Motion to Intervene: Antelope’s Unopposed Mot. to Intervene
as Def. (“Antl.’s Mem.”), Docket No. [11]; Antelope’s Reply to Pls.’ Resp.
to Wyoming’s Mot. to Intervene (“Antl.’s 1st Reply”), Docket No. [24];
Antelope’s Reply to Pls.’ Resp. to NMA’s Mot. to Intervene (“Antl.’s 2d
Reply”), Docket No. [31]; Antelope’s Not. of Suppl. Authority in Supp. of
its Unopposed Mot. to Intervene, Docket No. [36].2
• NMA’s Motion to Intervene: NMA’s Mot. to Intervene as Def. with Supp.
Stmt. of P. & A. (“NMA’s Mem.”), Docket No. [28]; Decl. of Katie Sweeney
in Supp. of NMA’s Mot. to Intervene as Def. (“Sweeney Decl.”), Docket No.
[28-1]; Pls.’ Resp. to Mot. to Intervene by NMA (“Pls.’ Opp’n to NMA’s
Mot.”), Docket No. [30]; Reply Stmt. of P. & A. in Supp. of NMA’s Mot. to
Intervene as Def., Docket No. [32].
• Wyoming’s Motion to Intervene: Mem. of Law in Supp. of Wyoming’s
Mot. to Intervene (“Wyo.’s Mem.”), Docket No. [14-1]; Aff. of Harold D.
Kemp (“Kemp Aff.”), Docket No. [14-2]; Pls.’ Resp. to Mot. to Intervene by
Wyoming (“Pls.’ Opp’n to Wyo.’s Mot.”), Docket No. [17]; Wyoming’s
Reply to Pls.’ Resp. to Wyoming’s Mot. to Intervene (“Wyo.’s Reply”),
Docket No. [19]; Pls.’ Not. of Suppl. Authority, Docket No. [25].
Before proceeding further, the Court pauses to make an overarching observation about the
nature of Plaintiffs’ opposition to the present motions, which is limited. Significantly, although
the motions now before the Court are contested in part, Plaintiffs have completely failed to rebut
or otherwise dispute, in any meaningful sense, the factual showing made by each of the Putative
Intervenors in support of their respective applications to intervene in this action. Accordingly,
unless otherwise noted, the Court shall treat the Putative Intervenors’ description of the relevant
facts as conceded for purposes of resolving the present motions. See Tanter v. Dep’t of Interior,
432 F. Supp. 2d 58, 62 (D.D.C. 2006) (treating factual allegations as conceded based upon
party’s failure to contest those allegations); Cobell v. Norton, 355 F. Supp. 2d 531, 543 (D.D.C.
2
Although two of Antelope’s submissions are styled as replies to Plaintiffs’ oppositions
to the other Putative Intervenors’ motions to intervene, they are substantively directed towards
the merits of Antelope’s motion to intervene. See generally Antl.’s 1st Reply; Antl.’s 2d Reply.
3
2005) (same). This observation may be unnecessary, as there appears to be relatively little
disagreement on the underlying facts; nevertheless, the Court notes that it renders its decision, as
it must, upon the record created by the parties, to which Plaintiffs’ contributions have been few.
II. BACKGROUND
Given the procedural posture of the case, nothing in the Court’s opinion today should be
construed as opining on the ultimate merits of the parties’ respective legal claims and defenses or
the likelihood that Plaintiffs will be able to secure the relief requested, nor as taking any factual
assertions to be conclusively established for purposes of this litigation.
A. The Leasing of Public Lands for Coal Mining Operations
The present action touches upon the Bureau’s practice and procedure with respect to the
leasing of public lands for coal mining operations, of which only the broadest contours require
discussion here. The relevant federal regulations contemplate two distinct coal leasing processes,
commonly referred to as the “Competitive Leasing” process and the “Lease-by-Application”
process. 3d Compl. ¶ 28; see generally 43 C.F.R. pt. 3420 (regulations governing the two
processes).3 The two processes may be described more fully as follows:
• The Competitive Leasing Process: The Competitive Leasing process
applies in areas designated as “Coal Production Regions,” the boundaries of
which the Bureau is empowered to alter after publication of an appropriate
notice. 3d Compl. ¶¶ 28, 30. Primarily an agency-driven process, the
Competitive Leasing process begins when the Bureau identifies public lands
for potential use for coal mining operations and offers competitive coal leases
3
Strictly speaking, both processes are forms of competitive leasing, as both contemplate
an open, public, and competitive sealed-bid process and preclude the Bureau from issuing a coal
lease unless the highest bid received meets or exceeds fair market value. See 43 C.F.R. §§
3422.1, 3422.2, 3425.4. Nevertheless, consistent with the parties’ usage, the Court shall employ
the “Competitive Leasing” terminology to refer to the specific process applicable in areas
designated as “Coal Production Regions.”
4
for sale. Id. ¶¶ 27-28. When operating under the Competitive Leasing
process, the Bureau is required to consider the regional environmental
impacts of prospective coal mining operations and consider such impacts
when setting leasing levels on a region-wide basis. Id. ¶¶ 28-29.
• The Lease-by-Application Process: In contrast to the Competitive Leasing
process, the Lease-by-Application process is animated primarily by coal
companies, which assume responsibility in the first instance for identifying
public lands for potential use and proposing specific tracts for leasing. Id. ¶¶
5, 32. As characterized by Plaintiffs, the more site-specific Lease-by-
Application process inhibits the Bureau’s ability to limit coal mining
operations based upon the cumulative environmental impacts caused by
region-wide coal mining activities. Id.
B. The Decertification of the Powder River Basin
At one point in time, a total of six regions across the United States were designated as
Coal Production Regions, within which the Competitive Leasing process applied. NMA’s Mem.
at 6; see also Public Participation in Coal Leasing, 64 Fed. Reg. 52239-02, 52240 (Sept. 28,
1999) (identifying the six Coal Production Regions). By the late 1980s, however, the Bureau
started decertifying Coal Production Regions due to a declining demand for coal and perceived
inefficiencies attendant to the Competitive Leasing process. NMA’s Mem. at 6; see also Public
Participation in Coal Leasing, 64 Fed. Reg. at 52240 (noting that, “[f]or a number of years, [the
Bureau] has competitively leased Federal coal exclusively through the leasing-on-application
process.”). The Powder River Basin, an area covering approximately 24,000 square miles across
northeastern Wyoming and southeastern Montana, was the last of the six regions to be
decertified. 3d Compl. ¶¶ 1, 23; NMA’s Mem. at 6; see also Proposed Decertification of All or a
Portion of the Powder River Coal Production Region (“Decert. Not.”), 54 Fed. Reg. 6339-01
(Feb. 9, 1989).
The Powder River Basin, the single largest source of coal in the United States, was first
5
designated as a Coal Production Region in November 1979. 3d Compl. ¶¶ 1, 26; see also
Identification of Coal Production Regions, 44 Fed. Reg. 65196 (Nov. 9, 1979). For the next
decade, leasing within the Powder River Basin occurred pursuant to the Competitive Leasing
process. On January 9, 1990, however, the Bureau decertified the region, thereby replacing the
Competitive Leasing process with the Lease-by-Application process. 3d Compl. ¶¶ 6, 31. The
Bureau’s stated rationales for decertification included the administrative efficiencies associated
with the Lease-by-Application process and the then-limited leasing interest in the region. Id. ¶
31; see also Decert. Not., 54 Fed. Reg. at 6340 (“The reason for . . . decertification is to allow for
an accommodation of the limited leasing potential within the subject areas, during the current
soft coal market, and with the maximum administrative efficiency”). In the twenty years since
decertification, coal production in the Powder River Basin has increased significantly, and at a
higher rate than other domestic coal production. 3d Compl. ¶ 33. To this day, coal leasing in the
Powder River Basin remains subject to the Lease-by-Application process.
C. The Bureau’s Decision Authorizing the Leasing of the West Antelope II Tracts
Although this action unquestionably implicates broader issues concerning the leasing of
public lands for coal mining operations, the immediate dispute is actually quite narrow. On April
6, 2005, pursuant to the Lease-by-Application process, Antelope filed an application with the
Bureau requesting that certain public lands containing federal coal reserves in the Wyoming
portion of the Powder River Basin – namely, approximately 4,746 acres of land immediately
adjacent to Antelope’s pre-existing coal mining operations in Campbell and Converse Counties,
Wyoming – be offered up for competitive lease sale to interested parties. Id. ¶ 35; see also Not.
of Intent to Prepare an Envtl. Impact Stmt., 71 Fed. Reg. 61064-02 (Oct. 17, 2006). Ultimately,
6
the Bureau authorized the sale of leases covering the designated area. 3d Compl. ¶¶ 7, 34; see
also Not. of Availability of Record of Decision, 75 Fed. Reg. 16502-01 (Apr. 1, 2010); Record of
Decision (“Rec.”) (Mar. 25, 2010), available at http://www.blm.gov/wy/st/en/info/NEPA/
cfodocs/West_Antelope_II.html.
More specifically, the Bureau decided to divide the land identified by Antelope into two
separate tracts – designated as the “West Antelope II” tracts – reasoning that the northernmost
tract would be of greater interest to companies other than Antelope. 3d Compl. ¶¶ 63-64; Rec. at
6. Each tract would be offered for lease at separate, competitive sealed-bid sales. Rec. at 6. In
the event the highest bid received at each sale met or exceeded the fair market value for the
leases and all other leasing requirements were met, the leases would be issued to the successful
qualified bidder or bidders. Id.Notably, in the course of reaching this decision, the Bureau prepared an Environmental
Impact Statement (the “EIS”), a subject of considerable dispute among the parties. 3d Compl. ¶
63; see also Not. of Availability of Final Envtl. Impact Stmt., 74 Fed. Reg. 4228-01 (Jan. 23,
2009); Final Envtl. Impact Stmt. (Dec. 8, 2008), available at http://www.blm.gov/wy/st/en/info/
NEPA/cfodocs/West_Antelope_II.html. The EIS, designed to provide agency decision-makers
and the public with a complete and objective evaluation of the environmental impacts associated
with the contemplated leasing of the West Antelope II tracts, is several hundred pages in length
and took over two years to prepare. Rec. at 9-10; Not. of Intent to Prepare an Envtl. Impact
Stmt., 71 Fed. Reg. 61064-02 (Oct. 17, 2006); Final Envtl. Impact Stmt.
D. The Contours of the Present Action
Plaintiffs challenge the Bureau’s decision to authorize the leasing of the West Antelope II
7
tracts on four principal fronts.
First, Plaintiffs allege, in essence, that the Bureau acted arbitrarily, capriciously, or
otherwise not in accordance with law by authorizing the leasing of the West Antelope II tracts
without first re-certifying the Powder River Basin as a Coal Production Region. 3d Compl. ¶¶ 5-
7, 98-105. By Plaintiffs’ account, if the Powder River Basin had been re-certified as a Coal
Production Region, any coal leasing – including the future leasing of the West Antelope II tracts
– would have to be approved pursuant to the Competitive Leasing process, which imposes upon
the Bureau an obligation to evaluate the regional environmental impacts of prospective coal
mining operations when setting regional leasing levels, as opposed to the more site-specific
Lease-by-Application process actually used to approve the leasing of the West Antelope II tracts.
Second, Plaintiffs contend that the Bureau violated the National Environmental Policy
Act, 42 U.S.C. §§ 4321 et seq., by, inter alia, failing to adequately analyze the direct and indirect
effects of carbon dioxide emissions that would result from leasing the West Antelope II tracts
(including the ultimate combustion of the coal mined from those tracts), as well as the
cumulative environmental impacts from other past, present, and reasonably foreseeable activities
in the Powder River Basin. 3d Compl. ¶¶ 8, 106-118.
Third, Plaintiffs assert that the Bureau violated the Federal Land Policy and Management
Act, 43 U.S.C. §§ 1701 et seq., by failing to appropriately analyze the impact of leasing the West
Antelope II tracts pursuant to federal air quality standards. 3d Compl. ¶¶ 9, 119-128. For
example, Plaintiffs allege that the Bureau failed to properly account for permissible levels of
ambient ozone concentrations. Id. ¶ 9.
Fourth, and finally, Plaintiffs allege that the Bureau and the U.S. Fish and Wildlife
8
Service violated their obligations under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq.,
by failing to conduct an appropriate formal consultation regarding the potential impact of leasing
the West Antelope II tracts upon threatened and endangered wildlife. Id. ¶¶ 10, 129-135.
III. LEGAL STANDARD
Rule 24(a) of the Federal Rules of Civil Procedure governs intervention as a matter of
right.4 That provision provides, in relevant part, 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 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). Consistent with this language, the D.C. Circuit
Court of Appeals has identified four requirements for intervention as a matter of right:
(1) Timeliness: First, an application to intervene in a pending action must be
timely. Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008). Whether a
given application is timely is a context-specific inquiry, and 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. Id. at 886.
(2) Interest: Second, the putative intervenor must have a “legally protected”
interest in the action. Id. 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. United States v.
Morten, __ F. Supp. 2d __, 2010 WL 3069060, at * 5 (D.D.C. Aug. 4, 2010).
4
The Federal Rules of Civil Procedure contemplate two types of intervention: permissive
intervention and intervention as a matter of right. Fed. R. Civ. P. 24. Because the Court
concludes that the Putative Intervenors are each entitled to intervene in this action as a matter of
right, the Court shall omit discussion of the standard governing permissive intervention. See Am.
Horse Prot. Assoc., Inc. v. Veneman, 200 F.R.D. 153, 156 (D.D.C. 2001) (concluding that
movant was entitled to intervene as of right and declining to reach question of permissive
intervention).
9
(3) Impairment of Interest: Third, the action must threaten to impair the
putative intervenor’s proffered interest in the action. Karsner, 532 F.3d at
885. The inquiry is not a rigid one: consistent with the Rule’s reference to
dispositions that may “as a practical matter” impair the putative intervenor’s
interest, Fed. R. Civ. P. 24(a)(2), courts look to the “practical consequences”
of denying intervention, Fund for Animals, Inc. v. Norton, 322 F.3d 728, 735
(D.C. Cir. 2003) (citing Natural Res. Def. Council v. Costle, 561 F.2d 904,
909 (D.C. Cir. 1977)).
(4) Adequacy of Representation: Fourth, and finally, no existing party to the
action may adequately represent the putative intervenor’s interests. Karsner,
532 F.3d at 885. Significantly, the putative intervenor’s burden here is de
minimis, and extends only to showing that there is a possibility that its
interests may not be adequately represented absent intervention. Fund for
Animals, 322 F.3d at 735.
In addition to these four requirements, which emanate from the text of Rule 24(a) itself, a
putative intervenor in this Circuit must further establish that it has constitutional standing to
participate in the action. United States v. Philip Morris USA Inc., 566 F.3d 1095, 1146 (D.C.
Cir. 2009), cert. denied, __ U.S. __, 130 S. Ct. 3501 (2010); but see Roeder v. Islamic Republic
of Iran, 333 F.3d 228, 233 (D.C. Cir. 2003) (noting that “[r]equiring standing of someone who
seeks to intervene as a defendant runs into the doctrine that the standing inquiry is directed at
those who invoke the court’s jurisdiction.”) (internal citations omitted), cert. denied, 542 U.S.
915 (2004). Where a party seeks to intervene as a defendant in order to uphold or defend agency
action, it must establish (a) that it would suffer a concrete injury-in-fact if the action were to be
set aside, (b) that the injury would be fairly traceable to the setting aside of the agency action, and
(c) that the alleged injury would be prevented if the agency action were to be upheld. Am. Horse
Prot. Assoc., 200 F.R.D. at 156; see also Friends of Animals v. Kempthorne, 452 F. Supp. 2d 64,
68 (D.D.C. 2006) (identifying requirements for constitutional standing in an action involving
10
agency action).5
Once a district court concludes that a party has a right to intervene, the inquiry is not
necessarily at an end. Even where intervention is a matter of right, district courts may impose
appropriate conditions or restrictions upon the intervenor’s participation in the action. Fund for
Animals, 322 F.3d at 737 n.11 (citing favorably to Fed. R. Civ. P. 24 advisory committee’s note
to 1966 amendment); see also Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 383
(1987) (Brennan, J., concurring) (“restrictions on participation may also be placed on an
intervenor of right and on an original party”). The district court’s discretion to impose
reasonable restrictions on participation is consonant with its inherent power to manage the
litigation before it, Beauregard, Inc. v. Sword Servs. LLC, 107 F.3d 351, 353 (5th Cir. 1997), as
well as a necessary instrument in accommodating the two conflicting goals of intervention: i.e.,
“to achieve judicial economies of scale by resolving related issues in a single lawsuit, and to
prevent the single lawsuit from becoming fruitlessly complex or unending,” Smuck v. Hobson,
408 F.2d 175, 179 (D.C. Cir. 1969).
IV. DISCUSSION
The Court’s discussion here proceeds in two steps: the Court first addresses the merits of
each of the three motions to intervene on an individual basis; thereafter, the Court considers what
conditions or restrictions should be imposed upon all the Putative Intervenors’ participation in
5
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. See Roeder,
333 F.3d at 233 (“any person who satisfies Rule 24(a) will also meet Article III’s standing
requirement.”); Fund for Animals, 322 F.3d at 735 (conclusion that putative intervenor has
constitutional standing is alone sufficient to establish that it has a legally protected interest in the
action).
11
this action.
A. The Putative Intervenors are Entitled to Intervene as a Matter of Right
1. Antelope’s Motion to Intervene
Antelope seeks to intervene in this action as a matter of right under Rule 24(a)(2) or,
alternatively, permissively under Rule 24(b). Antl.’s Mem. at 1. Notably, Plaintiffs have chosen
not to oppose Antelope’s intervention in this action, with the proviso that Plaintiffs have
requested that certain conditions and restrictions be placed upon all the Putative Intervenors’
participation in this action.6 See generally Pls.’ Opp’n to NMA’s Mot.; Pl.’s Opp’n to Wyo.’s
Mot. Therefore, apart from considering whether Antelope’s participation in this action should be
subject to any limitations, Antelope’s motion to intervene as a matter of right in this action stands
conceded. See Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997) (a
district court may in its discretion “rel[y] on the absence of a response as a basis for treating [a]
motion as conceded”); see also Phrasavang v. Deutsche Bank, 656 F. Supp. 2d 196, 201 (D.D.C.
2009) (where party fails to respond to arguments in opposition papers, the court may treat them
as conceded) (citing Fed. Deposit Ins. Co. v. Bender, 127 F.3d 58, 68 (D.C. Cir. 1997)). In any
event, even considering the merits of Antelope’s motion, it is clear that Antelope satisfies each of
the four requirements for intervention as a matter of right under Rule 24(a).
a. Timeliness
The first factor, the timeliness of the motion, requires little discussion: Antelope filed its
6
Technically, Plaintiffs made their request only in the context of their oppositions to the
motions to intervene by NMA and Wyoming. Nevertheless, as framed therein, Plaintiffs’ request
extends to Antelope as well, and Antelope has clearly construed it in this way. See generally
Antl.’s 1st Reply; Antl.’s 2d Reply.
12
motion to intervene on August 16, 2010, eighty-five days before Plaintiffs filed the current
iteration of the Complaint in this action and ninety-nine days before the Federal Defendants filed
an answer to that iteration. Under these circumstances, Plaintiffs cannot credibly claim (nor have
they) that they would be prejudiced by Antelope’s intervention at this juncture. Considered
alongside Antelope’s demonstrated interest in intervening as a defendant in this action, the Court
concludes that the motion is timely.
b. Interest
The agency decision challenged in this action has its origins in Antelope’s request that the
West Antelope II tracts immediately adjacent to its current coal mining operations be offered up
for competitive lease sale to interested parties; unsurprisingly, Antelope intends to bid on the
leases when they are put up for sale. 3d Compl. ¶ 35; Antl.’s Mem. at 1-2. Indeed, in rendering
its decision, the Bureau assumed that Antelope would be the successful bidder on both tracts, and
that the mineable federal coal on those lands would be used to extend the life of Antelope’s
existing coal mining operations. Rec. at 6. The Bureau specifically found that, were the
application rejected, Antelope’s current coal reserves would be depleted in little over a decade,
rendering it incapable of operating competitively in the national coal market. Id. at 8; see also
Antl.’s Mem. at 5. These interests suffice to support intervention as a matter of right.
c. Impairment of Interest and Standing
Simply put, the Bureau’s decision below was favorable to Antelope, and the present
action is a direct attack on that decision. Plaintiffs seek, among other things, an order vacating
the Bureau’s decision to allow the leasing of the West Antelope II tracts and precluding any
future leasing of those tracts until such time as the Bureau has re-certified the Powder River
13
Basin as a Coal Production Region and otherwise conducted environmental analyses in the
manner envisioned by Plaintiffs. It is impossible to predict whether the same outcome would be
reached upon remand. Furthermore, an adverse decision in this action would, at a bare
minimum, prevent Antelope from bidding on, securing, and developing the West Antelope II
tracts in the foreseeable future. With Antelope’s current coal reserves having a horizon of little
more than a decade, this action may have the “practical consequence” of threatening Antelope’s
ability to remain competitive in the national coal market in both the short and long term, Fund
for Animals, 322 F.3d at 735, and an adverse decision in this action would, “as a practical
matter,” threaten to impair Antelope’s interests, Fed. R. Civ. P. 24(a)(2). Similarly, were this
Court to vacate the Bureau’s decision below, Antelope would suffer a concrete injury-in-fact
fairly traceable to that disposition; accordingly, Antelope also has standing to intervene in this
action. Am. Horse Prot. Assoc., 200 F.R.D. at 156.
d. Adequacy of Representation
Antelope has met its burden of establishing that no other current or contemplated party
would necessarily adequately represent its interests in this action. With respect to the Federal
Defendants and Wyoming, it is well-established that governmental entities generally cannot
represent the “more narrow and parochial financial interest” of a private party. Fund for
Animals, 322 F.3d at 737 (internal quotation marks omitted). Meanwhile, as described in greater
detail below, NMA has broader regional and national interests in this action, and is unlikely to
afford Antelope’s more discrete and particularized interests the same primacy as would Antelope
itself.
14
2. NMA’s Motion to Intervene
Plaintiffs have opposed NMA’s motion to intervene in this action, but only insofar as
NMA seeks to intervene in this action as a matter of right under Rule 24(a). See generally Pls.’
Opp’n to NMA’s Mot. Plaintiffs do not oppose NMA’s request, made in the alternative, that it
be permitted to intervene in this action permissively under Rule 24(b). However, even as regards
intervention as a matter of right, Plaintiffs’ opposition is confined to addressing the “adequacy of
representation” prong of the Rule 24(a) inquiry. Id. at 1-3. Accordingly, Plaintiffs effectively
concede that NMA has met the remaining three requirements for intervention as a matter of right
– i.e., timeliness, interest, and impairment of interest – and the only question is whether NMA’s
interests in this action would be adequately represented by other current or contemplated parties.
See Phrasavang, 656 F. Supp. 2d at 201 (where party fails to respond to arguments in opposition
papers, the court may treat them as conceded). Nevertheless, even considering the merits of
NMA’s motion, the record created by the parties supports only one conclusion: NMA has
satisfied each of the four requirements for intervention as a matter of right under Rule 24(a).
a. Timeliness
The first factor – the timeliness of the motion – again requires little discussion: NMA
filed its motion to intervene on October 13, 2010, twenty-seven days before Plaintiffs filed the
current iteration of the Complaint in this action and forty-one days before the Federal Defendants
filed an answer to that iteration. This action remains in its early stages: the administrative record
is yet to be filed with the Court and no briefing schedule for dispositive motions has been set. As
before, Plaintiffs cannot credibly claim (nor have they) that they would be prejudiced by NMA’s
intervention at this juncture. Considered alongside NMA’s demonstrated interest in intervening
15
as a defendant in this action, the Court concludes that the motion is timely.
b. Interest and Standing
Although there are myriad reasons to conclude that NMA has standing to participate as a
defendant in this action, only two need be mentioned here. NMA is the national trade
organization for the mining industry, and the only national organization representing mining
interests, which indisputably extend to the availability and regulation of coal leasing on federal
lands. Sweeney Decl. ¶ 2. NMA’s membership includes nearly every coal company doing
business in the Powder River Basin. Id. ¶ 3. As such, its membership includes the universe of
entities that would benefit from a competitive lease sale of the West Antelope II tracts and suffer
a concrete injury-in-fact in the event the Bureau’s decision were to be set aside. Am. Horse Prot.
Assoc., 200 F.R.D. at 156. At the same time, these entities constitute the class most likely to
benefit from various similar lease applications currently pending in the Powder River Basin,7 and
the breadth of Plaintiffs’ challenge may very well have practical implications for the approval of
those applications. Sweeney Decl. ¶ 5; see also Rec. at 3; Wyo.’s Mem. at 11. Because these
entities would have standing to sue in their own right, because the availability and regulation of
coal leasing on federal lands are germane to NMA’s purpose, and because neither the Plaintiffs’
claims nor the relief requested requires the individual corporate entities to participate in this
action, NMA has standing to sue on behalf of its members. See Military Toxics Project v. Envtl.
Prot. Agency, 146 F.3d 948, 953-54 (D.C. Cir. 1998) (outlining requirements for associational
7
For example, in July and August of this year, the Bureau issued decisions resolving two
other applications in the Powder River Basin, known as “Belle Ayr North” and “Caballo West”
tracts. See Not. of Availability, 75 Fed. Reg. 44980-01 (July 30, 2010) (Belle Ayr North); Not.
of Availability, 75 Fed. Reg. 47623-01 (Aug. 6, 2010) (Caballo West). Both applications were
filed by NMA members. Sweeney Decl. ¶ 4.
16
standing) (citing Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)).
For the same reasons, NMA has an interest sufficient to support intervention as a matter of right
under Rule 24(a). See Fund for Animals, 322 F.3d at 735 (conclusion that putative intervenor
has constitutional standing is alone sufficient to establish that it has a legally protected interest in
the action).
c. Impairment of Interest
Although styled as a discrete challenge to the leasing of the West Antelope II tracts, this
action carries with it potentially broad implications for the leasing of public lands for coal mining
operations, and, for various reasons, an adverse decision in this action threatens to impair the
local, regional, and national interests of NMA and its members. The Court shall only mention
some of those reasons here, which serve to illustrate NMA’s unique position in this litigation.
First, an adverse decision in this action may have implications for coal leasing across the
Powder River Basin, separate and part from the resolution of Antelope’s discrete application.
Plaintiffs plainly seek a broad-based order precluding any future leasing in the Powder River
Basin until such time as the Bureau has re-certified it as a Coal Production Region. Presently,
there are multiple lease applications pending in the Wyoming portion of the Powder River Basin,
all seeking approval pursuant to the Lease-by-Application process. If accepted, Plaintiffs’
contentions that decertification is no longer appropriate and that the Lease-by-Application
process is invalid would cast substantial doubt on the validity of these other pending
applications, and may have the practical consequence of delaying or preventing the approval of
similar pending lease applications in the Wyoming portion of the Powder River Basin. 3d
Compl. ¶¶ 102, 104-105; Sweeney Decl. ¶ 5. Indeed, in rendering its decision, the Bureau
17
considered the effect of rejecting similar coal leasing applications across the Powder River Basin,
predicting that many existing mines in the region would cease operations after depleting their
current reserves (within eight to sixteen years), and would thereafter be unable to compete with
other mining interests to meet future coal demand. Rec. at 9. Therefore, as the representative of
the universe of potential bidders for leases made available in the Powder River Basin, an adverse
decision in this action would, “as a practical matter,” threaten to impair NMA’s interests. Fund
for Animals, 322 F.3d at 735.
Second, certain aspects of Plaintiffs’ suit carry with them potential implications for
federal coal leasing nationally. Simply by way of example, Plaintiffs press in this action a
particular view of the required environmental analyses. Plaintiffs contend that the Bureau was
required to consider, among other things, both the direct and indirect effects of carbon dioxide
emissions that would result from leasing the West Antelope II tracts (including the ultimate
combustion of the coal mined from those tracts), as well as the cumulative environmental
impacts from other past, present, and reasonably foreseeable activities. If Plaintiffs’ position
were accepted, it would likely be of concern to domestic coal producers generally. Because
NMA’s membership includes every significant coal company operating in the United States,
Sweeney Decl. ¶ 3, an adverse decision in this action may have practical consequences for its
members’ interests.
In the same vein, in rendering its decision, the Bureau considered the impact that rejecting
similar coal leasing applications across the Powder River Basin (which, by Plaintiffs’ own
account, is the single largest source of coal in the United States) would have on coal producers
nationally. Rec. at 9. In this regard, the Bureau found that producers in the Powder River Basin
18
have secured an increasing share of the national market primarily because production in the
region has been less costly, more environmentally compliant, and more successful in terms of
post-mining reclamation projects. Id. at 8-9. Accordingly, the Bureau concluded that limiting
production in the Powder River Basin would likely result in increased production by other
domestic (and, potentially, international) coal producers, resulting in more costly coal production
with a greater residual environmental impact. In short, the Bureau thought a contrary decision
might have potential reverberations across the national coal market.
d. Adequacy of Representation
NMA has met its minimal burden of establishing that no other current or contemplated
party would necessarily adequately represent its interests in this action. With respect to the
Federal Defendants and Wyoming, governmental entities generally cannot represent the “more
narrow and parochial financial interest” of a private party that is not burdened with the
responsibility of balancing multiple competing public interests. Fund for Animals, 322 F.3d at
737 (internal quotation marks omitted). Antelope, meanwhile, has a more narrow focus on
protecting the specific decision below, and does not share NMA’s concern with the regional and
national implications that may emanate from Plaintiffs’ action. For example, Plaintiffs maintain
that decertification is no longer appropriate in the Powder River Basin given the levels of coal
production in the region. 3d Compl. ¶ 102. The other five former Coal Production Regions have
been decertified for a similar period of time, but have not experienced the same rate of increase
in coal production. Id. ¶ 33. As such, Antelope might be inclined to defend the Bureau’s
decision below on the grounds that re-certification of the Powder River Basin is inappropriate
given the increased leasing interest in the region arising since decertification. NMA, meanwhile,
19
may be inclined to defend the Bureau’s decision with an argument that would more broadly
support the continued decertification of all six former Coal Production Regions. Accordingly,
although the Court does not doubt that Antelope and NMA share certain concerns, it is not
difficult to imagine how their interests “might diverge during the course of litigation.” Fund for
Animals, 322 F.3d at 736.
In opposing NMA’s intervention as a matter of right on the ground that its interests are
already adequately represented, Plaintiffs rely exclusively upon Earthworks v. U.S. Dep’t of
Interior, No. 09 Civ. 1972 (HHK), 2010 WL 3063139 (D.D.C. Aug. 3, 2010). Plaintiffs offer no
analysis or explanation, and make no attempt to respond to NMA’s detailed showing of how its
interests diverge from the interests of the Federal Defendants and the other Putative Intervenors.
In any event, Earthworks does not support, as Plaintiffs’ contend, the proposition that “where
existing mining interests have already intervened . . . new mining interests may not intervene as
of right since their interests are already adequately represented.” Pl.’s Opp’n to NMA’s Mot. at
2. In Earthworks, the Court first granted the motions to intervene as a matter of right brought by
representatives of participants in the mining industry, including NMA. Earthworks, 2010 WL
3063139, at *1. Only later, when two regional mining associations also sought to intervene, did
the Court find intervention as a matter of right inappropriate (but even then, the Court granted
leave to intervene permissively). Id. at *1-2. Significantly, the only divergence in interests
articulated by the second set of intervenors was that they represented individuals and small
companies, as opposed to the larger mining interests represented by the first set of intervenors.
Id. at *1. The Court merely held that such a slight divergence, without more, was insufficient to
establish that the second set of intevernors’ interests were inadequately represented. Id. at *2.
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For the reasons set forth above, NMA’s interests sufficiently diverge from those of the other
parties in this action, and therefore NMA simply is not similarly situated to the second set of
intervenors in Earthworks.
3. Wyoming’s Motion to Intervene
As with Antelope’s motion to intervene, Plaintiffs do not oppose Wyoming’s intervention
in this litigation either permissively or as of right. Pls.’ Opp’n to Wyo.’s Mot. at 1. Instead,
Plaintiffs’ opposition focuses exclusively on the propriety of imposing conditions and restrictions
upon Wyoming’s intervention. Id. at 1-3. Therefore, apart from considering whether
Wyoming’s participation in this action should be subject to any limitations, Wyoming’s motion
to intervene as a matter of right in this action stands conceded. In any event, even considering
the merits of Wyoming’s motion, it is clear that Wyoming satisfies each of the four requirements
for intervention as a matter of right under Rule 24(a).
a. Timeliness
Wyoming’s motion to intervene is timely. Wyoming filed its motion to intervene on
August 30, 2010, seventy-one days before Plaintiffs filed the current iteration of the Complaint in
this action and eighty-five days before the Federal Defendants filed an answer to that iteration.
Plaintiffs cannot credibly claim (nor have they) that they would be prejudiced by Wyoming’s
intervention at this juncture. When considered alongside Wyoming’s interest in intervening as a
defendant in this action, the Court concludes that the motion is timely.
b. Interest
Wyoming has at least three interests in intervening in the present action, any one of which
would alone suffice to support intervention.
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First, Wyoming has an interest in supporting the Bureau’s decision to authorize the
leasing of the West Antelope II tracts. The West Antelope II tracts are in the Wyoming portion
of the Powder River Basin, and Wyoming participated as an advisor-member of the team charged
with reviewing Antelope’s application, as well as in the preparation of the accompanying EIS.
3d Compl. ¶ 35; Wyo.’s Mem. at 2-3; see also Kemp. Aff. ¶ 4. Indeed, the Bureau expressly
identified two divisions of the Wyoming Department of Environmental Quality (the “WDEQ”)
as “cooperating agencies” in the development of the EIS – namely, the Land Quality Division,
which regulates surface coal mining operations on both federal and non-federal lands in
Wyoming, and the Air Quality Division (the “WDEQ-AQD”), which regulates air borne
emissions and administers federal air quality standards in Wyoming. Rec. at 2. Both agencies
expended significant time and energy in assisting the Bureau in preparing the EIS. Wyo.’s Mem.
at 4.
Second, Wyoming has an interest in preserving its role in regulating environmental
quality within its borders, and ensuring that the development of coal mining operations within its
territory continues in a safe and environmentally responsible manner. Wyoming’s involvement
in the West Antelope II application process is merely illustrative of its broader role in regulating
the environmental impacts of coal development activities within its borders. Simply by way of
example, the WDEQ-AQD, which regulates air borne emissions and administers federal air
quality standards in Wyoming, was charged with considering permit applications and air quality
analyses submitted by Antelope to ensure that the proposed use of the West Antelope II tracts
would comply with federal and state standards. Wyo.’s Mem. at 10.
Third, and finally, Wyoming has an interest in protecting its financial and socioeconomic
22
stake in the development of coal mining operations in Wyoming. As noted by the Bureau in
rendering its decision, the leasing of federal coal reserves provides Wyoming and affected county
governments with income in the form of lease bonus payments, lease royalty payments, and tax
payments. Rec. at 9. Over the last ten years, the total receipts from these revenue sources have
been substantial. Kemp. Aff. ¶¶ 1-3. Indeed, coal production in the Powder River Basin is one
of the largest contributors to the welfare of Wyoming, and a large component of local economies.
Wyo.’s Mem. at 11-12.
c. Impairment of Interest and Standing
For at least three reasons, an adverse decision in this action would, “as a practical
matter,” threaten to impair each of Wyoming’s interests. Fed. R. Civ. P. 24(a)(2). These same
reasons support the conclusion that Wyoming has standing to intervene in this action: were the
Bureau’s decision below to be set aside, Wyoming would suffer a concrete injury-in-fact fairly
traceable to that disposition. Am. Horse Prot. Assoc., 200 F.R.D. at 156.
First, Wyoming participated in the preparation of the current EIS, which is several
hundred pages in length and took over two years to prepare. The setting aside of the Bureau’s
decision below would require the preparation of a new EIS in order to lease the West Antelope II
tracts for coal mining operations and, by extension, would require Wyoming to expend additional
time and resources, with the ultimate outcome uncertain.
Second, although framed in part as a targeted challenge to the leasing of the West
Antelope II tracts, this action carries with it potentially broad implications for the leasing of
public lands for coal mining operations in Wyoming. By way of example, Plaintiffs contend that
the Bureau could not authorize the West Antelope II tracts without first analyzing both the direct
23
and indirect effects of carbon dioxide emissions that would result from leasing the West
Antelope II tracts (including the ultimate combustion of the coal mined from those tracts), as
well as the cumulative environmental impacts from other past, present, and reasonably
foreseeable activities in the Powder River Basin. If Plaintiffs’ position prevails, it would surely
have “practical consequences” for Wyoming’s interest in preserving its role in regulating
environmental quality within its borders. Fund for Animals, 322 F.3d at 735.
Third, and finally, setting aside the Bureau’s decision below would, at the very least,
delay the timetable for the leasing of the West Antelope II tracts and prevent Wyoming from
securing mineral bonus payments, federal mineral royalties, and severance taxes on the use of
those lands in the near future. Plaintiffs’ arguments, moreover, may very well have the practical
consequence of delaying or preventing the approval of multiple similar pending lease
applications in the Wyoming portion of the Powder River Basin. Indeed, Plaintiffs seek a broad-
based declaration that the entire Powder River Basin must be re-certified as a Coal Production
Region. In short, without opining on the merits of Plaintiffs’ arguments or the likelihood that
they will be able to secure the relief requested, there is little doubt that resolution of this action in
Plaintiffs’ favor would affect Wyoming’s financial and socioeconomic stake in the development
of coal mining operations within its borders.
d. Adequacy of Representation
Wyoming has met its de minimis burden of establishing that neither the current nor
contemplated parties would necessarily adequately represent its interests in this action. Recently,
in Earthworks v. U.S. Dep’t of Interior, No. 09 Civ. 1972 (HHK), 2010 WL 3063143 (D.D.C.
Aug. 3, 2010), the district court addressed a similar set of facts in an action challenging a
24
regulation promulgated by the Bureau and other federal agencies in connection with mining
claims. In granting the State of Alaska’s motion to intervene as a matter of right, the court
concluded that “[b]ecause Alaska’s interests in the natural resources within state borders and the
economic effects on the state of mining regulation are not necessarily represented by federal
agencies or private companies,” Alaska had shown that its interests may not have been
adequately represented by existing parties, which include both federal defendants and private
intervenors. Id. at *2. Likewise, here, although there are certainly shared concerns, it is not
difficult to imagine how the interests of Wyoming and the other defendants “might diverge
during the course of litigation.” Fund for Animals, 322 F.3d at 736. The mere fact that other
defendants might hypothetically take Wyoming’s interests into account when shaping their
arguments does not mean that they would afford the same primacy to Wyoming’s interests in, for
instance, maintaining its unique role in regulating coal mining operations and environmental
quality or its financial and social economic interests in the development of coal mining
operations within its borders.
B. Conditions upon Intervention
As described above, even where the Court concludes that intervention as a matter of right
is appropriate, its inquiry is not necessarily at an end: district courts may impose appropriate
conditions or restrictions upon the intervenor’s participation in the action. Fund for Animals,
322 F.3d at 737 n.11; see also San Juan Cnty., Utah v. United States, 503 F.3d 1163, 1189 (10th
Cir. 2007) (en banc) (practical considerations may “justify limitations on the scope of
intervention [as of right]”); Beauregard, 107 F.3d at 352-53 (“it is now a firmly established
principle that reasonable conditions may be imposed even upon one who intervenes as of right.”).
25
Having concluded that Antelope, NMA, and Wyoming (hereinafter, the “Intervenors”) may each
intervene in this action as defendants under Rule 24(a), the Court now considers what conditions,
if any, to impose upon their participation.
The inquiry is necessarily context-specific, and the conditions should be tailored to fit the
needs of the particular litigation, the parties, and the district court. In the past, courts have barred
intervenors from injecting collateral issues into the litigation. See, e.g., Brady Campaign to
Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1, 11 n.8 (D.D.C. 2009) (granting intervention
of right but prohibiting intervenors from raising new claims or collateral issues); Cnty. of San
Miguel, Colorado v. MacDonald, 244 F.R.D. 36, 48 n.17 (D.D.C. 2007) (limiting intervention of
right to claims within the scope of the complaint, but declining to impose other conditions).
Other courts have required intervenors to consult with one another prior to filing papers with the
Court and restricted their presentations to non-cumulative arguments. See, e.g., Earthworks,
2010 WL 3063143, at *2 (granting intervention as a matter of right but requiring consultation
with federal defendants and restricting presentation to arguments not advanced by other parties).
In the end, the primary limitation on the district court’s discretion is that any conditions imposed
should be designed to ensure the fair, efficacious, and prompt resolution of the litigation. See
United States v. S. Florida Water Mgmt. Dist., 922 F.2d 704, 710 (11th Cir.) (district court may
condition intervention “on such terms as will be consistent with the fair, prompt conduct of this
litigation.”), cert. denied, 502 U.S. 953 (1991); United States v. Duke Energy Corp., 171 F.
Supp. 2d 560, 565 (M.D.N.C. 2001) (“Applicants have an unconditional right to intervene, but
this does not prevent the imposition of reasonable limitations on [their] participation to ensure
the efficient adjudication of the litigation.”). To achieve this salutary purpose, the district court
26
should remain attuned to the two conflicting goals of intervention: i.e., “to achieve judicial
economies of scale by resolving related issues in a single lawsuit, and to prevent the single
lawsuit from becoming fruitlessly complex or unending.” Smuck, 408 F.2d at 179.
Although it shares the concern that the scope of this action risks multiple, duplicative
presentations, the Court declines Plaintiffs’ invitation to require the Intervenors to consolidate all
motions, responsive filings, and briefs. Given the institutional constraints associated with joint
briefing, including the understandable reluctance to share work product, a court should not
mandate complete joint briefing lightly. Mindful of the divergence of the Intervenors’ interests
in this action, and confident that the efficient adjudication of this action may be met through the
imposition of less onerous conditions, the Court considers such a restriction to be inappropriate
in this case. Nevertheless, in order to ensure the fair and efficacious resolution of this action, the
Court shall require the Intervenors to comply with the following conditions:
• The Intervenors shall meet and confer prior to the filing of any motion,
responsive filing, or brief to determine whether their positions may be set
forth in a consolidated fashion – separate filings by the Intervenors shall
include a certificate of compliance with this requirement and briefly describe
the need for separate filings;
• The Intervenors shall confine their arguments to the existing claims in this
action and shall not interject new claims or stray into collateral issues;
• Memoranda of points and authorities filed by the Intervenors in support of or
in opposition to any motion in this action shall not, without further leave of
the Court and good cause shown, exceed twenty-five (25) pages, and reply
memoranda shall not exceed ten (10) pages; and
• In the event that a motion for summary judgment is filed in this action, the
Intervenors shall file a joint statement of facts with references to the
administrative record consistent with Local Rule LCvR 7(h)(2) – to the extent
the Intervenors cannot agree on the inclusion of particular facts in their joint
statement, they may identify such additional facts in bullet-point format in
their respective memoranda of points and authorities.
27
The Court finds that the foregoing conditions strike the appropriate balance between ensuring
the expedient resolution of this action while preserving a space for the Intervenors to articulate their
respective positions and interests.
V. CONCLUSION
For the foregoing reasons, the Court shall GRANT the motions by [11] Antelope, [28]
NMA, and [14] Wyoming to intervene in this action as defendants as a matter of right pursuant to
Rule 24(a) of the Federal Rules of Civil Procedure, subject to the conditions and limitations
described above. An appropriate Order accompanies this Memorandum Opinion.
Date: December 6, 2010
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
28